# State v. O'Hara

> Court of Appeals of Washington · November 29, 2007 · 141 Wash. App. 900

URL: https://www.frixlaw.com/law-library/cases/4751748

## Case

- **Full name:** The State of Washington v. Ryan J. O'Hara
- **Court:** Court of Appeals of Washington
- **Decided:** November 29, 2007
- **Citations:** 141 Wash. App. 900
- **Precedential status:** Published
- **Opinion:** Concurring in part by Brown
- **Judges:** Brown, Kulik, Stephens
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Brown, J.
¶27 (concurring in part, dissenting in part) — I agree the evidence sufficiently supports conviction. I disagree with Ryan O’Hara that the trial court erred in discretionarily shaping the malice definition to fit the case facts.
¶28 First, I do not believe Mr. O’Hara’s claimed instructional error can be considered for the first time on appeal, considering he failed to object below or offer an alternative definitional instruction. State v. Lyskoski, 47 Wn.2d 102, 111 , 287 P.2d 114 (1955) (defendant may not object to the failure to give a definitional instruction if one not offered by defendant at trial); State v. Hoffman, 116 Wn.2d 51, 111-12 , 804 P.2d 577 (1991) (no error when no instruction requested). Even if constitutional, the claimed error is not “manifest” because Mr. O’Hara fails to show “ ‘practical and identifiable consequences’ ” since he was able to and did argue his case theory under the court’s instructions. State v. Kronich, 160 Wn.2d 893, 899 , 161 P.3d 982 (2007) (quoting State v. Kirkpatrick, 160 Wn.2d 873, 879-80 , 161 P.3d 990 (2007)).
¶29 Second, I disagree with Mr. O’Hara that the trial court erred in defining malice. The court has broad discretion when to give and how to construct definitional instructions. The average juror commonly understands malice concepts. See Hall v. State Farm Fire & Cas. Co., 109 Wn. App. 614, 621 , 36 P.3d 582 (2001) (“willful and malicious” are commonly understood terms not requiring definition). Judges need not instruct on terms commonly understood by the average juror. Lyskoski, 47 Wn.2d at 111 .
*913 ¶30 Third, even if “malice” has a technical meaning, the missing sentence, allowing a permissive inference of malice from an act done in willful disregard of another’s rights, did not handicap Mr. O’Hara. The omitted sentence does not limit or set the rights that may be argued from the facts and emphasizes the permissiveness of the inference, leaving the parties to argue what predicate facts have been established and suggest what conclusions might follow. See State v. Ratliff, 46 Wn. App. 325, 330 , 730 P.2d 716 (1986) (“[a] permissive inference suggests to the jury a possible conclusion to be drawn” if the “predicate facts” are proved “but does not require” that conclusion). Nothing prevented Mr. O’Hara from arguing to the jury that they accept the necessary predicate facts showing Mr. Loree interfered with his keys and car trunk or arguing that those predicate facts constituted interference with his property rights with “malice” as defined. Indeed, Mr. O’Hara made that very argument, but the jury was not persuaded.
¶31 I would affirm. Accordingly, I respectfully dissent.
Review granted at 164 Wn.2d 1002 (2008).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4751748. Public record. Not legal advice.