State Of Washington, Resp v. Seth Thomas Davis, App, 75070-4

On her birthday, Lauren Cross went to a restaurant with male coworkers; Seth Davis arrived and sat with the group, leading to a dispute with coworker Timothy Fielding.
A physical altercation ensued during which Fielding suffered a broken nose.
Davis was charged with and convicted by a jury of second-degree assault.
At close of the State’s case Davis moved to dismiss second-degree assault and sought to proceed with fourth-degree assault, but he did not object to the omission of a fourth-degree instruction when jury instructions were settled.
The trial court gave an initial aggressor instruction drawn from WPIC 16.04; Davis did not object at trial.
The trial court found Davis indigent for appeal; the State sought appellate costs but did not show a significant postjudgment improvement in Davis’s finances.

Issue	Plaintiff's Argument (Davis)	Defendant's Argument (State)	Held
Whether the court erred by not instructing the jury on lesser included offense (4th-degree assault)	The facts warranted a lesser included offense instruction and the omission was reversible error	Davis waived the issue by failing to object at trial; failure to give lesser included instruction is not manifest constitutional error	Waived; appellate review declined because failure to object forfeited the claim
Whether the initial aggressor instruction was legally incorrect	Instruction was erroneous because it required only an "intentional" act (not also "unlawful") and did not state the provocation standard as what a reasonable person would find "reasonably likely" to provoke	Instruction followed WPIC 16.04 and controlling precedent; language is proper and not vague	No error: WPIC language appropriate; "intentional" is constitutionally required and "reasonably likely" supplies the objective provocation standard
Whether the State is entitled to appellate costs despite an indigency finding	Appellant argues indigency remains unless rebutted by significant improvement	State argues evidence (employment on work-release form) shows ability to pay	State failed to rebut indigency; costs denied

State v. Sublet, 176 Wn.2d 58 (discusses preservation and record objections to jury instructions)
State v. O'Brien, 164 Wn. App. 924 (failure to object to instructions waives appellate review)
State v. O'Hara, 167 Wn.2d 91 (framework for manifest constitutional error review)
State v. Arthur, 42 Wn. App. 120 (holding that phrasing using "unlawful" in aggressor instruction is unconstitutionally vague)
State v. Cyrus, 66 Wn. App. 502 (discusses use of "intentional" in aggressor instruction)
State v. Wingate, 155 Wn.2d 817 (approves WPIC language and rejects revival of "unlawful act" phrasing)
State v. Riley, 137 Wn.2d 904 (approved WPIC 16.04 aggressor instruction)

Decision: Affirmed.