Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  40238-6-II

                             Respondent,

       v.

KELLEY SUZANNE STEPHENS,                                   UNPUBLISHED OPINION

                             Appellant.

       Hunt, J.  --  Kelley Suzanne Stephens appeals her jury convictions for third degree assault 

and obstructing a law enforcement officer.  She argues that the trial court erred (1) in giving the 

State's proposed jury instructions 11 and 12, which misstated the applicable law about police 

authority to enter a home, constituted an impermissible comment on the evidence, and created an 

error of constitutional magnitude; and  (2) by admitting irrelevant  evidence of her prior and 

subsequent contacts with police for which the trial court failed to follow the ER 404(b) balancing 

procedure.  She also argues that in the absence of the improperly admitted prior and subsequent 

police contacts, the evidence is insufficient to support her convictions.  Holding that jury 

instruction 12 improperly directed a verdict for the State, we reverse and remand for a new trial. 

No.  40238-6-II

                                            FACTS

                                           I.  Crimes

       Pierce County Sheriff's Deputy Eric Jank knew that there was an outstanding bench 

warrant for Timothy Roy Clinton's arrest based on his plea of guilty to misdemeanor unlawful 

"solicitation to possess a controlled substance."  Clerk's Papers (CP) at 105.  Driving past the 

residence of Clinton's girlfriend, Kelley Stephens, on June 28, 2009, Jank saw Clinton in the front 

yard and stopped.  Clinton first hid behind some bushes and then ran to the back of the house.  

Before attempting to arrest Clinton, Jank confirmed the arrest warrant. Because Jank knew that 

Clinton always carried a knife, Jank called for backup and for a K-9 unit.  Responding to the call 

for backup, Deputy Dennis Miller drove behind Stephens' residence looking for Clinton.  Jank 

then saw Clinton return to the front yard and, despite Jank's command to stop, Clinton entered 

Stephens' house.

       Stephens came out into the yard to speak with Jank.  When Jank asked Stephens to tell 

Clinton to come outside,  Stephens replied that she had not seen Clinton go into the house.  

According to Stephens, Jank reiterated that he had seen Clinton run into the house and that he 

had a "felony" warrant for his arrest; Stephens reiterated that she had not seen Clinton go inside.  

III VRP at 125.  When Jank asked her to step aside so that he could go inside her home to arrest 

Clinton, Stephens asked to see the warrant, asserting that she had a constitutional right to see the 

warrant before she let Jank into her home.

       Jank told Stephens that he did not need to show her the warrant, that he did not have a 

physical copy of the warrant with him, and that the warrant was for Clinton's arrest.  Stephens 

                                               2 

No.  40238-6-II

told Jank that she knew he did not have a felony warrant for Clinton because Clinton had pled 

guilty to only a gross misdemeanor.  Jank told Stephens that if she did not get out of the way, he 

could arrest her for obstructing.  Stephens walked back to the porch, stating that she was not 

letting the deputies inside her house without their first displaying a warrant.1

       Based on a similar previous encounter with Stephens, Jank believed that she was going to 

lock the door behind her; so he followed her to the porch.  As Stephens entered the house and 

closed the sliding door hard behind her, Jank caught and held the door, which struck and pinned 

his arm against the door jamb.  Jank pushed the door open and put Stephens in a hold by grabbing 

her wrist and arm while she struggled and yelled profanities at him.  Miller joined Jank on the 

porch, where Jank restrained Stephens with handcuffs and put her in a chair.  Stephens continued 

to struggle until Miller threatened to use his taser if she did not calm down.  Jank arrested 

Stephens for third degree assault and put her in the back seat of his patrol vehicle.2

                                         II.  Procedure

       The State charged Stephens with one count of third degree assault, based on her closing 

the door on Jank and pinning his arm, and one count of obstructing a law enforcement officer, 

based on her conduct in hindering Clinton's arrest.

       The State moved in limine to exclude as irrelevant Stephens' testimony that she believed 

(1) her constitutional protections prevented police from entering her home without her consent or 

1 The record does not show that the deputies attempted to obtain a paper copy of the warrant or 
otherwise to show Stephens that one existed.

2 When the K-9 arrived shortly thereafter, Jank removed a barricade that Clinton had erected at 
the back door, and the K-9 entered the home and secured Clinton.  III VRP at 90-91.

                                               3 

No.  40238-6-II

a warrant; and (2) police could not lawfully enter her home merely by telling her they had an 

arrest warrant without showing her the actual document.  Ruling Stephens' beliefs relevant, the 

trial court denied the State's motion and noted, "[I]f the State wants to look into some kind of 

jury instruction regarding the status of the law, that's something we can discuss later."3 1 VRP

(Dec. 15, 2009) at 7.

       At trial, Miller described (1) the charged incident as based on Stephens' having closed the 

door "hard" and "aggressively" on Jank's arm, and (2) his (Miller's) belief that Stephens had tried 

to close the door on Jank because the door "was slammed closed" and she had stood face to face 

with Jank.  VRP (Dec.15, 2009) at 26.  Jank testified that 15 months earlier, he had gone to 

Stephens' home to arrest Clinton and had spoken with Stephens through a back window; she had 

denied that Clinton was in the house.  After he (Jank) had reiterated to Stephens that he knew 

Clinton was inside, she had tried to close the window, but he had stopped her and she had walked 

away from the window.  A few minutes later, Stephens had allowed Jank to come in the front 

door to arrest Clinton.

       Stephens testified that (1) she has no convictions, that she had lived in her home for seven 

years, and that Clinton lived at her house "most of the time"4; (2) after talking with Jank outside 

her home, she wanted to return inside because she was concerned about Clinton's 18-year-old 

3 The State also moved in limine for admission of a prior incident that had occurred on March 15, 
2008, when Jank had previously arrested Clinton at Stephens' home.  The trial court granted the 
State's motion over Stephens' objection.  This fact, though relevant to one of the issues that 
Stephens raises on appeal, does not pertain to the dispositive jury instruction issue.

4 III VRP at 122.

                                               4 

No.  40238-6-II

autistic nephew inside and about her pets, one of whom had just had extensive veterinary work on 

a shattered jaw; (3) she was not sure whether she had explained these circumstances to Jank; (4) 

she believed that Jank had lied to her about having a "felony"5 warrant because she knew that 

Clinton had pled guilty to only a misdemeanor offense; (5) she believed she had a constitutional 

right to refuse  police  entry into her home without presentation of a warrant; and (6) as she 

attempted to close the door, Jank stuck his arm in the door, which then hit him.  She denied 

having intentionally closed the door on Jank's arm and having tried to hinder or to delay Clinton's 

arrest.

       On cross-examination, the State asked Stephens if Clinton typically lived at her house; she 

replied, "[Y]eah, on occasion." III VRP at 137 (emphasis added).  The State also asked Stephens 

if she believed she could deny police entry if they did not show her the warrant.  She stated that 

she had believed that was her constitutional right, adding:

              STEPHENS:  . . .  If I had looked through the house and found [Clinton], I 
       would have done what I did before, opened the door and let them in.
              [STATE]:  You're not saying that you were cooperative with the police 
       officers on the different occasions that they had come to try to contact Mr. 
       Clinton, are you?
              STEPHENS:  I was -- I didn't have the opportunity to be cooperative on 
       the second occasion.  I was on the first one.

III VRP at 144.6

5 III VRP at 129.

6 Outside the jury's presence, the trial court (1) granted the State's request to impeach Stephens'
testimony by cross-examining her about a later incident, on December 4, 2009; and (2) ruled that 
Stephens had "opened the door" to her level of cooperation with police.  III VRP at 148.  In the 
jury's presence, Stephens testified that she had answered police officers' questions to the best of 
her ability, but the police had not said that they had a warrant or that they wanted to come into 
the house to arrest Clinton on that other occasion.  After Stephens rested, the State recalled Jank 

                                               5 

No.  40238-6-II

       The State proposed two jury instructions about police authority to serve an arrest warrant:

       Jury Instruction 11
       To make an arrest in criminal actions, the officer may break open any outer or 
       inner door, or windows of a dwelling house or other building, or any other 
       [e]nclosure, if after notice of his office and purpose, he be refused admittance.

       Jury Instruction 12
       A valid misdemeanor arrest warrant gives police authority to enter a suspect's 
       residence to make the arrest.  The officer need not possess a physical copy of the 
       warrant to make the arrest.

CP at 41-42.

       Although initially equivocal about whether she opposed instruction 12, Stephens objected

on the record to both jury instructions.  She first objected to instruction 11:

       I have some questions.  I guess an objection as to the first one. . . . The second 
       instruction [instruction 12] I think is appropriate, dealing with some of the issues 
       that came up.  Just to clarify the officer's authority [under instruction 12], whether 
       Ms. Stephens believed it at the time or not.  I think that's an appropriate 
       instruction, given the case and the facts we've heard.  But the other one 
       [instruction 11], I just don't see the purpose in it.

III VRP at 160-61.  The State responded that (1) instruction 11 mirrored RCW 10.31.0407 almost 

verbatim; and (2) it had proposed instruction 11 to make clear that the police can lawfully enter a 

residence to arrest on a warrant, stating, "With the arrest warrant, [police] can then enter the 

to testify further about this other incident.  Again, this fact, though relevant to one of the issues 
that Stephens raises on appeal, does not pertain to the issues we address and resolve in this 
opinion.

7 RCW 10.31.040 provides:
       To make an arrest in criminal actions, the officer may break open any outer or 
       inner door, or windows of a dwelling house or other building, or any other 
       [e]nclosure, if, after notice of his or her office and purpose, he or she be refused 
       admittance.

                                               6 

No.  40238-6-II

residence. . . .  And, in fact, they could actually knock the door down, if need be." III VRP at 

161.

       Before ruling on instruction 11, the trial court asked if Stephens' counsel had "anything 

further." Her counsel responded:  "No, Your Honor.  I think it kind of encompasses the second 

instruction [instruction 12] though, where police have authority to enter a suspect's residence and 

make an arrest if they have a warrant."  III VRP at 161.  The following colloquy ensued:

              THE COURT:  I'm going to go ahead and give that proposed instruction 
       [instruction 11].  It is -- plainly it's a statement of the law given and it's out of the 
       RCW.  Is that a quote, I take it, from the RCW?
              [STATE]:  Yes.  The first instruction [instruction 11] is exactly from 
       [RCW] 10.31.040.
              THE COURT:  Okay.  I think I understand why the State wants to offer it.  
       I'm going to overrule the objection to that first supplemental instruction.   And 
       there's no objection to the second supplemental instruction?

III VRP at 162 (emphasis added.)

       Stephens then objected to this "second supplemental instruction" 128:

              [DEFENSE COUNSEL]:  I do have a question on the second one. . . .  
       Just because I don't know -- I read State v. Hatch [sic][9] I didn't think inside that 
       opinion it indicated that an officer need not possess the physical copy of the 
       warrant to make an arrest.  Is that in [RCW] 10.31.030[10]?

8 Although Stephens did not expressly state, "I object," to oppose Instruction 12, she engaged in 
an extensive colloquy with the State and the trial court, raising the same issue that she now argues 
on appeal.  The trial court also treated this colloquy as sufficiently specific to raise an objection 
when it ruled, "I'm going to go ahead and give both of those instructions [Instructions 11 and 
12]." III VRP at 164.

9 We believe that the trial court and counsel intended to cite State v. Hatchie, 161 Wn.2d 390, 
166 P.3d 698 (2007), throughout this entire colloquy.  See also State v. Hatchie, 133 Wn. App. 
100, 135 P.3d 519 (2006), aff'd, 161 Wn.2d 390, 166 P.3d 698 (2007).

10 RCW 10.31.030 provides, in relevant part:
       The officer making an arrest must inform the defendant that he or she acts under 
       authority of a warrant, and must also show the warrant: PROVIDED, That if the 

                                               7 

No.  40238-6-II

              [STATE]:  I think in [RCW] 10.31.030, the defendant has a right to ask to 
       see a copy of the warrant, but the officer need not have it on his person, but when 
       they are arrested and brought to the jail, then the officer is to try to get them the 
       ability to see it. . . .  I guess I'm [talking] by analogy, clearly, if that's the only right 
       a defendant would have, that clearly I think . . . supports that someone in Ms. 
       Stephens' position does not have any greater rights [than the criminal suspect] . . 
       . .
              [DEFENSE COUNSEL]:  It is . . . an interesting question.  I mean, prior 
       to our case and looking this up, I was . . . questioning whether or not an officer, 
       when they come to a residence, if it's not the residence of the individual who's 
       going to be arrested -- in this case Ms. Stephens didn't have a warrant for 
       her -- what their authority was to enter the house without showing or providing a 
       copy to the homeowner.  And I wasn't able to find anything that said, yes, an 
       officer must or needn't have an actual physical copy of a warrant on him.
              Certainly, the first statement is somewhat of an applicable type case on the 
       misdemeanor arrest warrant.  The officers in State v. Hatch [sic], [they] went into 
       the residence to arrest someone on a misdemeanor warrant.  I believe my 
       recollection is that residence wasn't the residence of the person who was arrested, 
       either.
              [STATE]:  In Hatch [sic]?
              [DEFENSE COUNSEL]:  Yes.
              [STATE]:  I don't recall specifically.  I would just note for the record, I 
       think clearly, even from her testimony, I mean, this was, if not his permanent 
       residence, a place where he clearly, if not always, stayed.  That was her testimony 
       on the stand.  If there had been other . . .  evidence of something different, I'm 
       sure it would have been brought up or some type of motion would have been 
       made.
              [DEFENSE COUNSEL]:  My only concern is I don't want to misstate the 
       law. If that's not the law -- 
              THE COURT:  Well, in reading RCW 10.31.030, I think that is a 
       reasonable construction of that part of it. . . .  So I'm going to go ahead and give 
       both of those instructions.

III VRP at 162-64 (emphasis added).

       Believing that instructions 11 and 12 correctly stated the law, the trial court overruled 

       officer does not have the warrant in his or her possession at the time of arrest he 
       or she shall declare that the warrant does presently exist and will be shown to the 
       defendant as soon as possible on arrival at the place of intended confinement.
 (Emphasis added.)

                                               8 

No.  40238-6-II

Stephens' objections and gave  both instructions.    Neither the State nor Stephens requested 

additional instructions; thus, the trial court gave no other instructions on this area of law.  The 

jury found Stephens guilty of both counts.  Stephens appeals.

                                          ANALYSIS

       Stephens argues that the trial court erred by giving the State's proposed jury instructions 

11 and 12, which, she contends, misstated the applicable law and constituted an impermissible 

comment on the evidence.  The State counters that (1) Stephens failed to object with sufficient 

specificity11 to both instructions below and, therefore, failed to preserve these instruction issues 

for appeal; but (2) if even preserved, jury instruction 11 accurately presented the law12 and was 

not an impermissible court comment on the evidence because it did not refer to elements of the 

charges.13 We disagree with the State that Stephens failed to preserve for appellate review the 

error in jury instruction 12;14 we agree with Stephens that instruction 12 misstated the law and

11 Although some cases suggest that a party must propose an appropriate substitute instruction if 
the one given by the trial court is a correct statement of law, the State does not make this 
argument here.  See Hoglund v. Raymark Indus., Inc., 50 Wn. App. 360, 368-69, 749 P.2d 164 
(1987); Harris v. Burnett, 12 Wn. App. 833, 843, 532 P.2d 1165 (1975).  Accordingly, we 
decline to invoke these cases as a potential bar to Stephens' otherwise preserved instructional 
error.

12 The State apparently drafted these instructions based on RCW 10.31.030 and RCW 10.31.040.  
Neither instruction, however, appears to have been based on any Washington Pattern Jury 
Instructions.

13 The State does not address the merits of Stephens' challenge to instruction 12.

14 Because we conclude that Stephens preserved her claim of error in instruction 12, which is 
dispositive, we do not address whether she also  sufficiently preserved her claim of error in
instruction 11.

                                               9 

No.  40238-6-II

requires reversal of her convictions.

                                    A.  Preservation of Error

       An appellate court may refuse to review any claim of error which was not raised in the 

trial court. RAP 2.5(a); State v. O'Hara, 167 Wn.2d 91, 97-98, 217 P.3d 756 (2009).  To claim 

error on appeal, an appellant must first show that she took exception to that instruction in the trial 

court and that her objection apprised the trial court of the precise points of law involved and 

reasons upon which she argued that the instruction was erroneous.   CrR 6.15(c); State v. Bailey

114 Wn.2d 340, 345, 787 P.2d 1378 (1990) (citations omitted).  Appellate courts have deemed an 

alleged instructional error preserved for review where the record reflects that the parties engaged 

in "extended discussions" concerning jury instructions and the trial court understood the basis for 

a party's objection.  Crossen v. Skagit County, 100 Wn.2d 355, 359, 669 P.2d 1244 (1983).

       Contrary to the State's assertion, the record shows that Stephens' objection to instruction 

12 was sufficiently specific to apprise the trial court of her reasons for questioning whether the 

instruction was erroneous.  After her initially equivocal statement, "I do have a question on the 

second one,"15 Stephens immediately engaged the trial court and the State in a lengthy colloquy 

about the same issue she now raises on appeal -- whether the instruction accurately stated the law.  

Stephens cited both Hatchie, 161 Wn.2d 390, 166 P.3d 698 (2007), and  RCW 10.31.030 in 

questioning (1) whether the police could lawfully enter her home to arrest Clinton, who, Stephens 

asserted was a nonresident, without presenting a warrant; and (2) whether the police needed to 

present a warrant at the time of entry into her home.  Whether the police needed to present 

15 III VRP at 162.

                                               10 

No.  40238-6-II

Clinton's arrest warrant before entering Stephens' home was not dispositive below; nor is it 

dispositive on appeal.  Nevertheless, in referencing Hatchie (involving police authority to enter a 

third party's home), Stephens sufficiently drew to the trial court's attention the legal distinction 

between an accused's and a third party's privacy rights when police seek entry into a private 

residence to serve an arrest warrant. Moreover, as we discuss later in this opinion, it was critical 

for the trial court to instruct the jury about this important legal distinction for use in deciding the 

integrally-related factual issue of whether the State had proved the elements of the charged crimes 

beyond a reasonable doubt.

       We hold that Stephens' colloquy with the trial court and counsel was sufficient to apprise

the trial court of the legal issue involved in instruction 12 and, therefore, that she preserved her 

challenge to this instruction for appeal. We now address the merits of that challenge.16

                                    B.  Standard of Review

       We review jury instructions de novo as questions of law.  State v. Steen, 155 Wn. App. 

243, 247, 228 P.3d 1285 (2010).  To satisfy constitutional provisions for a fair trial, "jury 

instructions, when read as a whole, must correctly tell the jury of the applicable law, not be 

misleading, and permit the defendant to present [her] theory of the case."  O'Hara, 167 Wn.2d at 

105.  Jury instructions, however, "'must more than adequately convey the law.  They must make 

the relevant legal standard manifestly apparent to the average juror.'"  State v. Borsheim, 140 

Wn. App. 357, 366, 165 P.3d 417 (2007) (emphasis added) (quoting State v. Watkins, 136 Wn. 

16 Because we hold that Stephens adequately preserved the error in instruction 12, we need not 
address her alternate argument that, if she failed to preserve either instructional error, she may still 
argue them both on appeal because the errors are of constitutional magnitude.

                                               11 

No.  40238-6-II

App. 240, 241, 148 P.3d 1112 (2006)).17   Washington  courts have held jury instructions 

inadequate where a single instruction was a correct statement of law but, when read as a whole, 

the jury instructions did not fully inform the jury about the relevant legal standard.  See e.g., State 

v. Allery, 101 Wn.2d 591, 595, 682 P.2d 312 (1984) ("[S]tanding by itself, without additional 

instructions from the trial court, this instruction does not make the subjective self-defense 

standard 'manifestly apparent to the average juror.'") (quoting State v. Painter, 27 Wn. App. 708, 

713, 620 P.2d 1001 (1980)) (internal quotation marks omitted).

                                    C.  Misstatement of Law

       Stephens argues that instruction 12 (1) misstated the law and effectively removed the 

ultimate question from the jury -- whether Stephens was resisting lawful police action when she 

did not allow the officers into her home; and (2) thereby essentially directed the jury to conclude 

that the police did not overstep their authority when they entered her home to arrest Clinton 

without her permission or a search warrant.     We largely agree.   Whether  Clinton resided  at 

Stephens' home was a disputed factual issue central to Stephens' defense.  Properly instructed, if 

the jury had a reasonable doubt about whether Clinton resided at Stephens' home, then it could 

not find that the State had proved the elements of the charged crimes.18

17 Accord State v. Dana, 73 Wn.2d 533, 537, 439 P.2d 403 (1968) (jury instructions must be 
"readily understood and not misleading to the ordinary mind").
18 As we discuss in more detail later in this opinion, the factual issue of whether Clinton resided in 
Stephens' home bore directly on critical issues concerning the following elements of the two 
charged crimes:  (1) whether Stephens closed the door on the officer's arm with intent to prevent 
or to resist the execution of any "lawful" process or mandate of any court officer or the "lawful"
apprehension of a person, or while the officer was performing his "official" duties, RCW 
9A.36.031(1)(a), (g) (third degree assault); and (2) whether the police actions Stephens hindered, 
delayed, or obstructed were "official" powers or  duties,  RCW 9A.76.020(1) (obstructing).

                                               12 

No.  40238-6-II

       Due process requires the State to prove every essential element of a crime beyond a 

reasonable doubt.  In re Winship, 397 U.S. 358, 363-64, 90 S. Ct. 1068, 25 L. Ed. 2d 368 

(1970); State v. Deal, 128 Wn.2d 693, 698, 911 P.2d 996 (1996).  Here, the State charged 

Stephens with third degree assault and obstructing a law enforcement officer; thus, the burden 

was on the State to prove all elements of these offenses.

       Article IV, section 16 of the Washington Constitution prohibits giving an instruction that 

implies that the law establishes matters that the fact finder should determine.19  State v. Levy, 156 

Wn.2d 709, 721, 132 P.3d 1076 (2006).  Stephens argues that instruction 12 constituted a "patent 

misstatement of the law" because (1) the instruction explained only the police officers' authority

to enter a suspect's residence, not their authority to enter the home of a third party; and (2) 

whether Clinton actually resided at Stephens' home was a question of mixed law and fact, the 

legal portion of which the trial court failed to resolve and the factual portion of which the 

improper instruction removed from the jury's purview.  Br. of Appellant at 13.  We agree.

       Under the Fourth Amendment to the United States Constitution, police officers may enter 

a suspect's home to arrest him if the officers have (1) a warrant for the suspect's arrest and (2) 

reason to believe that the suspect is inside the dwelling at the time of their entry.  Payton v. New 

York, 445 U.S. 573, 603, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980) ("[A]n arrest warrant founded 

19 Article IV, section 16 of the Washington Constitution provides:  "Judges shall not charge juries 
with respect to matters of fact, nor comment thereon, but shall declare the law."            We 
acknowledge that Stephens also challenges these instructions as impermissible comments by the 
trial court about its personal opinion on the merits of the case.  We do not reach this argument, 
however, because we agree with Stephens that instruction 12 was an incomplete and incorrect 
statement of the law that rendered her trial fundamentally unfair.

                                               13 

No.  40238-6-II

on probable cause implicitly carries with it the limited authority to enter a dwelling in which the 

suspect lives when there is reason to believe the suspect is within.") (Emphasis added).  But 

when, as here, the residence of the person named in the arrest warrant is disputed, third party 

privacy rights are implicated.  State v. Winterstein, 167 Wn.2d 620, 630, 220 P.3d 1226 (2009).  

In order to protect these third party privacy interests, our courts have interpreted our state 

constitution more broadly than federal law:20 Under article I, section 721, the police must have 

"probable cause" to believe that the suspect named in the arrest warrant is a resident of the home

that they wish to enter.  Hatchie, 161 Wn.2d at 404 ("probable cause" is the minimum standard 

for determining when police have reason to believe a place to be entered is the suspect's 

residence); State v. Hatchie, 133 Wn. App. 100, 113-14, 135 P.3d 519 (2006), aff'd, 161 Wn.2d 

390, 166 P.3d 698 (2007).    If, based on objective evidence, the police lack probable cause to 

believe that the subject of the arrest warrant is a resident of the home they wish to enter, then the 

arrest warrant does not authorize the police to enter the home.  Winterstein, 167 Wn.2d at 630; 

see also Hatchie, 161 Wn.2d at 403.

       Thus, "[t]he existence of an arrest warrant and the belief that the subject may be a guest in 

a third party's home is insufficient legal authority to enter the home." State v. Anderson, 105 Wn. 

20 In Hatchie, the Washington Supreme Court recognized that most state courts, and many federal 
circuit courts, have interpreted Payton's "reason to believe" language as requiring a "less 
exacting" standard than "probable cause" to believe that the subject of the arrest warrant is a 
resident of the entered home.  Hatchie, 161 Wn.2d at 404.  Our supreme court further explained 
that our state's "probable cause" requirement is a protection of third party privacy interests that 
comes into play when the police enter the home of a non-suspect.  Winterstein, 167 Wn.2d at 
629.

21 Wash. Const. art. I, § 7.

                                               14 

No.  40238-6-II

App. 223, 231, 19 P.3d 1094 (2001); see also Steagald v. United States, 451 U.S. 204, 213, 101 

S. Ct. 1642, 68 L. Ed. 2d 38 (1981).  Absent the homeowner's consent or exigent circumstances, 

the police must obtain a search warrant to enter a third party's home to serve the arrest warrant.  

See Hatchie, 161 Wn.2d at 402; Steagald, 451 U.S. at 213-14, 216.  To intrude into a third 

party's residence, the police need the homeowner's consent, exigent circumstances, or a search 

warrant because

       [a] third party's privacy interest in being free from unreasonable invasion of [her]
       home is distinguishable from [a]  suspect's interest in avoiding unreasonable 
       seizure.  It is the rights of the homeowner that the issuing magistrate must balance 
       with the necessity for the search.  Unless the third party's interests are considered, 
       the search is no more reasonable than if no [arrest] warrant had been issued.  To 
       allow an arrest warrant for a nonviolent misdemeanor to create carte blanche for 
       searching the homes of third parties creates the risk of the sort of abuse 
       complained of here:  using the arrest warrant as a "pretext for entering a home in 
       which the police have a suspicion, but not probable cause to believe, that illegal 
       activity is taking place."

Hatchie, 161 Wn.2d at 402-03 (emphasis added) (second emphasis omitted) (quoting Anderson, 

105 Wn. App. at 232).

       Contrary to the State's assertion that non-suspect  Stephens'      rights were not  "any

greater"22 than arrestee Clinton's rights, the law clearly  provides greater safeguards to a third-

party homeowner than it provides to a criminal suspect.  Steagald, 451 U.S. at 215-16.  

Washington law has long held:

       An arrest warrant for a suspect only suffices to allow entry into the suspect's own 
       residence, not the residence of a third person.  Absent consent or exigent 
       circumstances, which may include hot pursuit, entry into the home of a third party 
       to conduct a search or make an arrest is unreasonable unless done pursuant to a 
       [search] warrant.

22 III VRP at 162-63.

                                               15 

No.  40238-6-II

Hocker v. Woody, 95 Wn.2d 822, 825, 631 P.2d 372 (1981) (citations omitted).  Here, because 

Stephens was not the subject of the arrest warrant, she was a "third party" when the police sought 

entry into her home to arrest Clinton.

       To resolve the legal issues pertinent to rendering verdicts on the charges against Stephens,

the jury needed to resolve the underlying factual issue of whether Clinton "resided" with Stephens 

in her home or whether Clinton was merely in Stephens' residence temporarily:  In other words, 

were the police entering suspect Clinton's home (shared jointly with Stephens) or entering only 

third-party non-suspect Stephens' home in which Clinton was a guest. If the jury decided that the 

State had proved beyond a reasonable doubt the fact that Clinton shared the home with Stephens, 

then Clinton's arrest warrant was sufficient to allow the police to enter the home without her 

consent.  But if the jury decided that the State had not proved beyond a reasonable doubt the fact 

that Clinton shared the home with Stephens, then Clinton's arrest warrant was insufficient to 

allow the police to enter the home without Stephens' consent.23   Instruction    12, however, 

failed to delineate this critical distinction between police authority to enter the home of a suspect 

and the more restricted police authority to enter the home of a non-suspect third party when 

serving an arrest warrant.  Instruction 12 told the jury only:

       A valid misdemeanor arrest warrant gives police authority to enter a suspect's 
       residence to make the arrest.  The officer need not possess a physical copy of the 
       warrant to make the arrest.

23 We do not address the other possibilities for lawful entry because there is nothing in the record 
suggesting that the police also had a search warrant or that there were exigent circumstances 
justifying their entry.

                                               16 

No.  40238-6-II

CP at 42.  Although instruction 12 accurately summarized some statutory language and correctly 

informed the jury that "[a] valid misdemeanor arrest warrant gives police authority to enter a 

suspect's residence to make the arrest,"24 this language covered only part of the applicable law in 

light of the pivotal factual dispute about whether Clinton resided in the home.  Neither instruction 

12 nor any other instruction informed the jury about the legal limits on police authority, or lack of 

authority, to enter a private home that is not the suspect's residence. Stephens' jury received no 

instruction that, in these circumstances, the law requires the police (1) to obtain the third party's 

consent; (2) if the third party does not consent, to obtain a search warrant for the third party's 

home; or (3) otherwise, to justify the entry with legally recognized exigent circumstances, such as 

"hot pursuit."  Hocker, 95 Wn.2d at 825; Hatchie, 161 Wn.2d at 402-04.25

       To provide a complete and, thus, accurate statement of the applicable law, it was essential 

for the trial court to include these legal restrictions in the jury instructions because (1) Stephens 

was not the subject of the arrest warrant, (2) she had refused consent for the police to enter her 

home, and (3) they had no search warrant or exigent circumstances separately authorizing entry

24 The State proposed instruction 12 to summarize RCW 10.31.030 for the jury, specifically, that 
(1) although an arrestee has a right "to see" a copy of his arrest warrant, the arresting officer need 
not have the warrant on his person at the time of the arrest; and (2) he may show the warrant to 
the arrestee after arresting him and bringing him to jail.  III VRP at 162.  Outside of the jury's 
presence, the State further explained its purpose for proposing instruction 12:
       . . . I'm [talking] by analogy, clearly, if that's the only right a defendant would 
       have, that clearly I think . . . supports that someone in Ms. Stephens' position does 
       not have any greater rights, and certainly would not have a right to insist that 
       there be a physical copy of the warrant at the time it's being served.
III VRP at 162-63 (emphasis added).

25 See also Steagald, 451 U.S. at 215-16.

                                               17 

No.  40238-6-II

into her home to arrest Clinton.  As we have previously noted, instruction 12's failure to instruct 

the jury about third-party rights and these restrictions on police authority presented the jury with 

an incomplete and incorrect statement of the law relating to the factual issues that the jury needed 

to resolve in the course of deciding whether the State proved Stephens' guilt of the charged 

crimes beyond a reasonable doubt:  That the "victim," Officer Jank, acted within the scope of his 

"official" powers or duties at the time of the crimes is an element of both third degree assault26

and obstructing a law enforcement officer.27

       If, however, Officer Jank lacked lawful  authority to enter Stephens' home to arrest 

Clinton, then Jank was not acting within the scope of his "official" powers or duties at the time 

that Stephens refused  his  entry and thereby allegedly committed  the  charged offenses.   As 

Stephens notes, (1) the trial court neither determined as a matter of law nor instructed the jury

about whether the police had probable cause to believe Clinton actually resided at her home; and 

(2) the jury could have interpreted jury  instruction 12 as a  directive that Stephens acted 

26 A person is guilty of assault in the third degree if she:
       (a) With intent to prevent or resist the execution of any lawful process or mandate 
       of any court officer or the lawful apprehension or detention of himself, herself, or 
       another person, assaults another; or 
       . . . 
       (g) Assaults a law enforcement officer or other employee of a law enforcement 
       agency who was performing his or her official duties at the time of the assault; . . . 
RCW 9A.36.031 (1) (emphasis added).

The legislature amended RCW 9A.36.031 in 2011, but these amendments are not relevant here. 
Laws of Washington 2011, ch. 336 §359.

27 A person is guilty of obstructing a law enforcement officer "if the person willfully hinders, 
delays, or obstructs any law enforcement officer in the discharge of his or her official powers or 
duties." RCW 9A.76.020(1) (emphasis added).

                                               18 

No.  40238-6-II

improperly by demanding to see a copy of Clinton's arrest warrant and questioning Officer Jank's

authorityto enter her home when he told her he did not have a warrant with him.28

       Furthermore, the record does not support the State's assertion that Stephens' testimony 

showed Clinton was a resident in her home.  When the State asked if Clinton typically lived at her 

house, Stephens replied, "[Y]eah, on occasion"; and her general testimony indicated that she 

considered the house to be her home, which Clinton regularly visited.  III VRP at 137.  

Additionally, both Clinton's arrest warrant and his summons listed an address other than 

Stephens' address.  Thus, the matter of Clinton's residence was neither clear nor settled.  

Clinton's residence was a critical factual question for the State to prove beyond a reasonable 

doubt and for the jury to decide and to resolve in Stephens' favor if the evidence was lacking.  In 

28 Arguably, if instruction 12 expressly pertained only to a "suspect's residence," the jury might 
have disregarded this instruction if it believed that the residence was third-party Stephens', not 
arrestee Clinton's; we reiterate, however, that the evidence was inconclusive on this factual point.  
Moreover, the trial court provided neither additional language in instruction 12 nor any additional 
separate instruction clarifying the legal effect of this limiting factor -- whose residence was this?  
Thus, instruction 12 impliedly and erroneously conflated suspects' rights and non-suspect third 
parties' rights with respect to (1) the scope of lawful police entry to effectuate an arrest warrant 
and (2) a third-party's right to refuse such entry.  And the jury received no other proper 
instruction on the law distinguishing third-party-homeowners' highly protected privacy rights 
from suspects' more limited rights in this context or on the corresponding different scopes of 
police authority depending on whether the suspect lives at the residence that the police seek to 
enter.  Hatchie, 161 Wn.2d at 392-93.
       Furthermore, at Stephens' trial, the parties focused on whether the police were legally 
required to show a copy of Clinton's arrest warrant to non-suspect resident Stephens.  The parties 
did not squarely address whether Clinton was actually a resident of Stephens' home.  For 
example, outside of the jury's presence, the State opined:
       [E]ven from [Stephens'] testimony, I mean, this was, if not his permanent 
       residence, a place where he clearly, if not always, stayed.  That was her testimony 
       on the stand.  If there had been other . . . evidence of something different, I'm sure 
       it would have been brought up or some type of motion would have been made.
III VRP at 163-64 (emphasis added).

                                               19 

No.  40238-6-II

the absence of another instruction explaining to the jury the legal consequence of Clinton's 

residence or lack of residence in Stephens' home, instruction 12 had the effect of taking this 

crucial issue of fact away from the jury.

       Without such a clarifying instruction or a trial court determination that the police had 

probable cause to believe that Clinton resided at Stephens' residence, the jury could readily have 

read instruction 12 as implying that Officer Jank acted within the scope of his duties when he 

entered Stephens' home to arrest Clinton, despite his lack of her consent, his lack of a search 

warrant, and his lack of exigent circumstances.  Because there was no instruction informing the 

jury that it needed to consider whether Officer Jank had authority to enter Stephens' home, the 

jury  could have inferred from the incomplete, and therefore, erroneous, instruction 12, that 

Stephens  unlawfully  questioned police authority and unlawfully refused to allow  their  entry

without first displaying Clinton's arrest warrant.

       As we have already noted, due process requires the State to prove all elements of a crime

beyond a reasonable doubt, Deal, 128 Wn.2d at 698; and jury instructions, when read as a whole, 

must tell the jury of the applicable law, not be misleading, and permit a defendant to present her 

theory of the case, O'Hara, 167 Wn.2d at 105.  In the absence of additional "readily understood"

instructions, instruction 12 was  "misleading to the ordinary mind" in omitting critical legal 

standards governing the scope of police authority to enter a third party's home to arrest a non-

resident suspect. State v. Dana, 73 Wn.2d 533, 537, 439 P.2d 403 (1968).  We hold, therefore,

that instruction 12 did not make the relevant legal standard "manifestly apparent" to the jury29 and 

29 Borsheim, 140 Wn. App. at 366 (quoting State v. Watkins, 136 Wn. App. 240, 241, 148 P.3d 
1112 (2006)).

                                               20 

No.  40238-6-II

that, read as a whole, the jury instructions did not satisfy constitutional requirements for a fair trial

for Stephens in that they were "misleading," did not "correctly tell the jury of the applicable law,"

and did not permit Stephens "to present [her] theory of the case."  O'Hara, 167 Wn.2d at 105.

       We reverse and remand for a new trial.

       A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so 

ordered.

                                                 Hunt, J.
We concur:

Penoyar, C.J.

Quinn-Brintnall, J.

                                               21