Court of Appeals Division I 

State of Washington
Opinion Information Sheet


Docket Number: 64568-4
Title of Case: State Of Washington, Respondent V. Richard D. Peters, Appellant
File Date: 09/19/2011


SOURCE OF APPEAL
----------------
Appeal from Snohomish Superior Court
Docket No: 08-1-02803-2
Judgment or order under review
Date filed: 12/01/2009
Judge signing: Honorable Michael T Superior Court Administration Downes


JUDGES
------


COUNSEL OF RECORD
-----------------

Counsel for Appellant(s)
Washington Appellate Project
Attorney at Law
1511 Third Avenue
Suite 701
Seattle, WA, 98101


Lila Jane Silverstein
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3647

Counsel for Respondent(s)
Thomas Marshal Curtis
Snohomish County Pros Ofc
3000 Rockefeller Ave # 504
Everett, WA, 98201-4060



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View the Opinion in PDF Format



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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE

STATE OF WASHINGTON, No. 64568-4-I
)
Respondent, )
)
v. ) PUBLISHED OPINION
)
RICHARD D. PETERS, )
)
Appellant. ) FILED: September 19, 2011
)
Schindler, J. -- The State charged Richard Peters with felony murder in the

second degree of his six-year-old daughter S.P. based on the predicate offense of

assault, and manslaughter in the first degree with a firearm. The court also instructed

the jury on the lesser-included offense of manslaughter in the second degree. The jury

found Peters not guilty of felony murder but guilty of manslaughter in the first degree.

Contrary to State v. Gamble, 154 Wn.2d 457, 114 P.3d 646 (2005) and 11 Washington

Practice: Washington Pattern Jury Instructions: Criminal 10.03 (3d ed. 2008) (WPIC),

the trial court erroneously instructed the jury that in order to convict Peters of

manslaughter in the first degree, the State need only prove that he knew of and

disregarded "a substantial risk that a wrongful act may occur," rather than "a substantial

risk that death may occur." Because the erroneous jury instruction was not harmless

No. 64568-4-I/2

beyond a reasonable doubt, we reverse and remand for a new trial.

FACTS

Following his service in the Navy, Richard Peters worked for Boeing. In 2008,
43-year-old Peters lived in Marysvillewith his spouse Kristina1 and their three children,

eight-year-old G.P., six-year-old S.P., and three-year-old Q.P. Peters and Kristina

owned a number of guns and would go target shooting with friends. Peters said that he

grew up using guns and believed it was important to teach his children about guns and

gun safety. Except for the Colt Double Eagle .45 caliber semiautomatic handgun that

he kept on the nightstand in his bedroom, and the 9 mm gun Kristina kept in the

kitchen, Peters stored the other guns in a gun safe.

On November 16, Peters and Kristina spent the day at home with the children.

That afternoon, Peters played with the children outside. Later in the day, Peters and

S.P. watched The Wizard of Oz on the television in the family room downstairs.

Kristina said that while talking on the phone, she saw S.P. walk past her on the way to

the family room carrying a handgun. A few moments later, Kristina heard a loud bang

and Peters screaming to call 911.

When the medics and police arrived, S.P. was lying on the floor with a gunshot

wound through her forehead and was not breathing. After successfully reviving her, the

medics airlifted S.P. to Harborview Medical Center. While S.P. was being treated at

the hospital, the police questioned Peters. During a lengthy taped interview, Peters

described what happened and at times was emotional and distraught.

Peters told the police that he had talked to his mother on the phone earlier in the

1 For clarity, we refer to Richard Peters by last name and Kristina Peters by first name.

2

No. 64568-4-I/3

day, and told her he was going to give her his Colt .45 after he "put a front site on it."

3

No. 64568-4-I/4

Peters explained that his mother was "not very strong," but she could easily "pull that

slide back" and use the Colt .45. Peters told the police there was a magazine in the

Colt .45 but there was never a bullet in the chamber. "There's never nothing in the

chamber. . . . That gun that's upstairs . . . is always . . . nothing chambered . . . ever."

Peters said that while he and S.P. were watching the movie, he asked her to "go

up and grab" his Colt .45 from the nightstand in the bedroom and "bring it down."

Peters told the police that he had been through a number of gun safety trainings.

Peters said that he taught his children about gun safety, and he often asked the

children to get his guns for him.

Instead of bringing down the Colt .45, S.P. "brought down the magazine" for a

different gun. Peters said that he told S.P. "no, that's not what I want. I want the gun.

And she went back up and brought down the gun." When S.P. returned with the Colt

.45, she held the gun by the grip, pointed down. According to Peters, S.P. handed the

gun to him and then backed away, laughing. Peters said he was sitting on the couch

and S.P. was off to the side, "[p]robably three or four feet" away. Peters told the police

that "somehow the trigger was . . . ready to go which it shouldn't a been." Peters said

that when S.P. handed him the gun there must have been a round already chambered,

"and the trigger must've been all the way back." Peters said he "didn't even pay

attention to it cuz normally I never . . . I never have the gun racked," and there is "not

supposed to be a bullet in [the chamber]." Peters told the police "my daughter should

never have got that [gun] for me. . . . I should've got off my lazy ass and got the gun

myself."

4

No. 64568-4-I/5

Throughout the interview, Peters repeatedly said that he did not know there was

a bullet in the chamber and when he barely touched the trigger, the gun fired and shot

S.P. in the forehead.

I was stupid. I shouda known. I pulled the magazine out but then . . . I
don't know . . . that trigger on that .45 of mine is a hair trigger and it went
off when I touched it. . . . [T]here shouldn't a been nothing ready . . .
nothing in the chamber. . . . I hit the trigger and the trigger is, like I said,
it's a hair trigger. . . . If you touch it just a slight bit . . . it's gonna fire. . . .
Somehow the trigger was . . . ready to go which [it] shouldn't a been. . . .
And that shot my daughter in the head.

Peters said that immediately after the gun went off, he went over to his daughter.

She fell backwards. Just, just backwards and I didn't know what to think
and her face turned blue and I'm sitting there screaming and my wife
came down and she freaked out and I didn't know what to do. I had her
head and . . . I don't know. I, I lost . . . I, I didn't realize what . . . I, I
couldn't . . . I, I'm CPR-trained and I couldn't even function.

Peters admitted that he had consumed four or five doubles of vodka and Coke

that day. Peters said that he was "under the influence" and "should not drive," but

denied alcohol affected his ability to handle guns. "[A]lcohol has never really been . . .

an issue . . . . I've always handled my guns." During the interview, Peters also

described an incident at a pumpkin shoot with some friends in November when he

accidentally discharged a shotgun.

At the end of the interview, the police asked Peters if there was anything else he

wanted to add. Peters cried and said, "I just want her back, man." Following the

interview, the police drove Peters to the hospital to obtain a blood draw. The blood

sample that was taken at approximately 2:30 a.m. showed Peters had a blood-alcohol

level of .11 grams per 100 milliliters.

5

No. 64568-4-I/6

During the search of Peters' house, the police found a half-gallon of vodka and a

half-case of Diet Coke near the couch in the family room. There was a newly-made

mixed drink, a .45 caliber Para Ordnance handgun, and a magazine on the table

located in front of the couch. The Colt .45 and a magazine were on the couch. The

gun safe in the family room contained a number of other guns. The police also found a

loaded handgun on a table upstairs. Several hours after the shooting, S.P. died at the

hospital.

The State charged Peters with felony murder in the second degree with a firearm

based on assault as the predicate offense, Count I, and manslaughter in the first

degree with a firearm, Count II. As to Count I, the State alleged that during the

commission of the assault, Peters caused the death of his daughter S.P. As to Count

II, the State alleged that Peters recklessly caused the death of S.P.

Before trial, Peters filed a motion in limine to exclude all gun evidence except the

Colt .45. Peters argued that the evidence was more prejudicial than probative. Peters

also moved to exclude testimony about the accidental discharge of a shotgun at the

pumpkin shoot, and the testimony of his neighbor John E. "Jes" Smith that in October,

Peters showed him a .45 caliber handgun that was underneath some newspapers on

the couch, and Peters asked his son to go to his truck to get a gun.

The court denied the motion to exclude the evidence. The court ruled:

This evidence of the defendant having handled a weapon less than
two weeks prior to the death of his daughter, in which it's alleged that he
was handling a weapon that went off, is directly relevant to his knowledge
of a substantial risk. It's hard to conceive of how much more -- how other
evidence might -- could be any more directly relevant to his knowledge.
It's a situation . . . that makes it imminently clear that [Peters] knew that in
the handling of a gun it could go off even if you didn't intend for it to. So it

6

No. 64568-4-I/7

is highly relevant.
. . . .
With regard to the guns in this case, particularly the method of handling
the weapon or weapons in the home, seems to me to be directly relevant
to the issue of recklessness. The defendant's disregard of the -- of a
known risk.
. . . .
The probative value of this evidence outweighs any prejudicial
effect that it might have, and the weapons will be allowed in.[2]

The firefighters, medics, and police who responded to the 911 call, as well as

the police detectives, Peters' neighbor Smith, and a co-worker testified at trial. Smith

said that when he saw Peters the night of the shooting, he appeared "inebriated" but

was "in shock" and "extremely upset." Smith also testified that he had previously
expressed to Peters that he was concerned about the guns Peters kept in the house.3

Deputy Sherriff Brock Adams also testified that when he talked to Peters the night of

the shooting, "[h]is eyes were red and watery. He had slurred speech. I could smell

the intoxicant." Peters' co-worker George Wilson testified about the incident at the

pumpkin shoot in November.

The State also called a doctor with a specialty in forensic pathology, a forensic

toxicologist, and a firearms expert to testify at trial. The State presented evidence

2 The trial court also ruled:
It would not be appropriate for anyone to argue, and the Court will not allow
anybody to argue or suggest, that because the defendant is a gun owner and because he
has multiple weapons in his home, he is somehow or other a bad person or that the
ownership of the weapons is bad. He has a constitutional right pursuant to a recent
United States Supreme Court case to have guns.
But that doesn't mean that the State can't bring into evidence the fact that he
has them, where they are and how he handled them. That, again, goes directly to the
issue of recklessness, and directly to the issue of the defendant's disregard of this risk
that a bad act could occur.
3 Smith testified:
I expressed my concern that these -- the weapons were loaded and they could possibly,
you know, handle them or fire them. I don't remember -- recall my exact wording. But I
expressed my concern to him. And he told me that all the kids had been taught not to
touch these weapons.

7

No. 64568-4-I/8

about the trajectory of the bullet in an attempt to show S.P. was not off to the side but

was standing in front of Peters. The court also admitted Peters' tape-recorded

interview with the detectives into evidence. The State provided the jury with a 34-page

transcript and played the 40-minute tape recording to the jury. The police detectives

testified that contrary to Peters' assertion that he removed the magazine from the Colt

.45, the evidence showed Peters did not remove the magazine. Family members and

friends testified on behalf of Peters, describing him as "devastated." Peters did not

testify.

At the conclusion of the evidence, the defense requested the court instruct the
jury on the lesser-included offense of manslaughter in the second degree.4 To convict

Peters of manslaughter in the second degree, the State has the burden of proving that

he acted with criminal negligence, and that he was not aware of the risk of death but

should have been aware of it. The State did not object to giving instructions on the

lesser-included offense of manslaughter in the second degree. The State conceded

the evidence supported giving the lesser-included offense instructions.

The instructions proposed by the State on manslaughter in the second degree

included a jury instruction that defined reckless. The proposed instruction states:

A person is reckless or acts recklessly when he knows of and disregards
a substantial risk that death may occur and this disregard is a gross
deviation from conduct that a reasonable person would exercise in the

4 Under RCW 9A.32.070:
(1) A person is guilty of manslaughter in the second degree when, with criminal negligence,
he causes the death of another person.
(2) Manslaughter in the second degree is a class B felony.
RCW 9A.08.010(1)(d) defines criminal negligence as:
A person is criminally negligent or acts with criminal negligence when he or she fails to be
aware of a substantial risk that a wrongful act may occur and his or her failure to be aware of
such substantial risk constitutes a gross deviation from the standard of care that a reasonable
person would exercise in the same situation.

8

No. 64568-4-I/9

same situation.[5]

The defense agreed with the proposed instruction. However, the trial court disagreed

with giving the proposed instruction defining reckless. The court stated the WPIC

required only "a substantial risk that a wrongful act may occur. . . . [T]he WPIC does

not require a substantial risk of death, and neither does the law." Neither the State nor

the defense objected to the court's decision to define reckless as knowing and
disregarding a substantial risk that a wrongful act may occur.6

The court instructed the jury on manslaughter in the first degree and

manslaughter in the second degree. Instruction 11 on manslaughter in the first degree

states:

To convict the defendant of the crime of manslaughter in the first
degree, as alleged in Count II, each of the following elements of the crime
must be proved beyond a reasonable doubt:
(1) That on or about the 16th day of November, 2008, the
defendant engaged in reckless conduct;
(2) That [S.P.] died as a result of defendant's reckless acts; and
(3) That any of these acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been

5 (Emphasis added.)
6 THE COURT: [Instruction] 11 would be manslaughter 1 elements. . . .
[Instruction] 12 would be reckless. . . . Mr. Stern, you were going to perhaps propose
some different language other than death?
[State]: Exactly.
THE COURT: You know what that might be?
[State]: Whatever Mr. Fine advises. I will try to figure that out. I think there is --
THE COURT: Ms. Halverson, you are going to make a note. You obviously
[are] going to want to look at it when it gets here. I will tell you that the WPIC itself says
a person is reckless or acts recklessly when he or she knows of and disregards
substantial risk that a wrongful act may occur. And then it has a place to fill in --
[Defense]: What's the number?
THE COURT: 10.03. And after wrongful act it has a place, fill in more particular
description of act, if applicable. So pursuant to the WPIC, wrongful act appears to be
fine. In fact, appears to be the suggested language, unless you want to get --
[Defense]: That's fine.
THE COURT: -- more specific.
[State]: We don't want to do that.
THE COURT: So are you fine with wrongful act?
[Defense]: I am.
THE COURT: Why don't you take out death and put in wrongful act?
9

No. 64568-4-I/10

proved beyond a reasonable doubt, then it will be your duty to return a
verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a
reasonable doubt as to any one of these elements, then it will be your
duty to return a verdict of not guilty.

Jury Instruction 12 defines reckless as follows:

A person is reckless or acts recklessly when he knows of and
disregards a substantial risk that a wrongful act may occur and this
disregard is a gross deviation from conduct that a reasonable person
would exercise in the same situation.[7]

Jury Instructions 13, 14, and 15 address the lesser-included offense of manslaughter in

the second degree. Instruction 13 states:

The defendant is charged with Manslaughter in the First Degree in
Count II. If, after full and careful deliberation on this charge, you are not
satisfied beyond a reasonable doubt that the defendant is guilty, then you
will consider whether the defendant is guilty of the lesser crime of
Manslaughter in the Second Degree.
When a crime has been proved against a person, and there exists
a reasonable doubt as to which of two or more degrees that person is
guilty, he shall be convicted only of the lowest degree.

Instruction 14 states:

To convict the defendant of the crime of manslaughter in the
second degree, each of the following elements of the crime must be
proved beyond a reasonable doubt:
(1) That on or about the 16th day of November, 2008, the
defendant engaged in criminally negligent conduct;
(2) That [S.P.] died as a result of defendant's negligent acts;
and
(3) That any of these acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been
proved beyond a reasonable doubt, then it will be your duty to return a
verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a
reasonable doubt as to any one of these elements, then it will be your
duty to return a verdict of not guilty.

7 (Emphasis added.)

10

No. 64568-4-I/11

Instruction 15 defines criminal negligence as follows:

A person is criminally negligent or acts with criminal negligence
when he or she fails to be aware of a substantial risk that a wrongful act
may occur and this failure constitutes a gross deviation from the standard
of care that a reasonable person would exercise in the same situation.
When criminal negligence as to a particular result is required to
establish an element of a crime, the element is also established if a
person acts intentionally or recklessly as to that result.

In closing, the State argued that the evidence showed Peters pointed the gun

directly at S.P., that he was guilty of felony murder in the second degree based on

assault, and that S.P. died as a result of his reckless conduct. The defense argued

there was no evidence establishing that Peters pointed the gun at S.P. and Peters was

responsible for negligently causing the accidental death of S.P.

The jury found Peters not guilty of felony murder but guilty of manslaughter in

the first degree with a firearm. With an offender score of zero, the court imposed a

standard range sentence. Peters appeals.

ANALYSIS

Jury Instruction Defining Reckless

Peters contends that contrary to the holding in Gamble and the WPIC, the trial

court improperly instructed the jury that in order to convict on manslaughter in the first

degree, the State needed to only prove that he knew of and disregarded a substantial

risk that a wrongful act may occur, rather than a substantial risk that death may occur.

Peters argues the erroneous instruction violated his due process rights by lowering the

State's burden of proving manslaughter in the first degree. We agree.

Jury instructions must inform the jury that the State bears the burden of proving

11

No. 64568-4-I/12

each essential element of a criminal offense beyond a reasonable doubt. In re

Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Schulze,

116 Wn.2d 154, 167-68, 804 P.2d 566 (1991). It is reversible error to "instruct the jury

in a manner" that would relieve the State of the burden of proof. State v. Pirtle, 127

Wn.2d 628, 656, 904 P.2d 245 (1995). Accordingly, Peters may challenge the jury

instruction defining reckless for the first time on appeal. RAP 2.5(a)(3). We review

alleged errors of law in jury instructions de novo. State v. Levy, 156 Wn.2d 709, 721,

132 P.3d 1076 (2006).

Under RCW 9A.32.060(1)(a), a person is guilty of manslaughter in the first
degree if "[h]e recklessly causes the death of another person."8 RCW 9A.08.010(1)(c)

defines recklessness:

A person is reckless or acts recklessly when he or she knows of and
disregards a substantial risk that a wrongful act may occur and his or her
disregard of such substantial risk is a gross deviation from conduct that a
reasonable person would exercise in the same situation.

In Gamble, the court addressed the reckless element of manslaughter in the first

degree in the context of analyzing whether manslaughter in the first degree is a lesser-

included offense of felony murder in the second degree based on the predicate offense

of assault. Gamble, 154 Wn.2d at 462. The court held that manslaughter is not a

lesser-included offense of felony murder. Gamble, 154 Wn.2d at 468.

[T]o prove manslaughter the State must show Gamble "[knew] of and
disregard[ed] a substantial risk that a [homicide] may occur." [RCW
9A.08.010(1)(c)]. On the contrary, to achieve a felony murder conviction
here, the State was required to prove only that Gamble acted intentionally
and "disregard[ed] a substantial risk that [substantial bodily harm] may
occur." Id. Significantly, the risk contemplated per the assault statute is
of "substantial bodily harm," not a homicide as required by the

8 (Emphasis added.)

12

No. 64568-4-I/13

manslaughter statute. As such, first degree manslaughter requires proof
of an element that does not exist in the second degree felony murder
charge.

Gamble, 154 Wn.2d at 467-68 (alterations in original). In distinguishing the elements

of the two crimes and the State's burden of proof, the court held that the "wrongful act"

for purposes of manslaughter in the first degree requires the State to prove beyond a

reasonable doubt that the defendant knew of and disregarded a substantial risk that

death may occur. Gamble, 154 Wn.2d at 467-68.

Looking to the "wrongful act" caused by a defendant's actions, to prove
manslaughter the State must show Gamble "[knew] of and disregard[ed] a
substantial risk that a [homicide] may occur."

Gamble, 154 Wn.2d at 467-68 (citation omitted). As the court notes, "recklessly

causing a death and recklessly causing [a wrongful act] are not synonymous." Gamble,

154 Wn.2d at 468 n.8.

Following the supreme court's decision in Gamble, the Washington Supreme

Court Committee on Jury Instructions revised the definition of recklessness. As

amended, WPIC 10.03 makes clear that the mens rea instruction defining reckless for

manslaughter in the first degree must state that the defendant disregarded a

substantial risk of death. WPIC 10.03 provides, in pertinent part:

RECKLESSNESS -- DEFINITION
A person is reckless or acts recklessly when he or she knows of
and disregards a substantial risk that a [wrongful act] [(fill in more
particular description of act, if applicable] may occur and this disregard is
a gross deviation from conduct that a reasonable person would exercise
in the same situation.
[When recklessness [as to a particular [result] [fact]] is required to
establish an element of a crime, the element is also established if a
person acts [intentionally] [or] [knowingly] [as to that [result] [fact]].]

13

No. 64568-4-I/14

The Note on Use states:

Use bracketed material as applicable. For a discussion of the first
paragraph's bracketed alternatives relating to wrongful act, see the
Comment below.

The Comment states, in pertinent part:

For manslaughter, the definition of recklessness is more
particularized than is the general statutory requirement of a substantial
risk that a wrongful act may occur. The Supreme Court has held in a
manslaughter case that the definition of recklessness requires proof of
disregarding a substantial risk that a death, rather than simply a wrongful
act, may occur. . . . Gamble, 154 Wn.2d [at] 467-68 . . . (in the context of
analyzing whether first degree manslaughter is a lesser included offense
of second degree felony murder with assault as the predicate felony).
Accordingly, for a manslaughter case, the instruction above should be
drafted using the word "death" rather than "wrongful act."

We hold the jury instruction given in this case that defines reckless to mean

Peters knew of and disregarded "a substantial risk that a wrongful act may occur,"

rather than that "a substantial risk that death may occur" is contrary to Gamble and

WPIC 10.03. The instruction impermissibly relieved the State of the burden of proving

beyond a reasonable doubt that Peters knew of and disregarded a substantial risk that

death may occur, and allowed the jury to convict Peters of only a wrongful act.

Harmless Error

An erroneous jury instruction that misstates the law is subject to a harmless error

analysis. State v. Thomas, 150 Wn.2d 821, 844, 83 P.3d 970 (2004). A misstatement

of the law in a jury instruction is harmless if the element is supported by uncontroverted

evidence. State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002) (citing Neder v.

United States, 527 U.S. 1, 15, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)). In order to

determine whether the error is harmless, we must "'conclude beyond a reasonable

14

No. 64568-4-I/15

doubt that the jury verdict would have been the same absent the error.'" Brown, 147

Wn.2d at 341 (quoting Neder, 527 U.S. at 19). The State bears the burden of showing

that the error is harmless beyond a reasonable doubt. Delaware v. Van Arsdall, 475

U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986); State v. Guloy, 104 Wn.2d

412, 425, 705 P.2d 1182 (1985).

Here, the uncontroverted evidence does not establish that Peters knew of and

disregarded a substantial risk that death may occur, and the State conceded that the

evidence at trial supported instructing the jury on the lesser-included offense of

manslaughter in the second degree. Peters denied pointing the gun at S.P. and said

she was off to the side, three or four feet away. Throughout the interview with the

police, Peters repeatedly stated he did not know there was a bullet in the chamber of

the Colt .45 and he did not know that the gun was ready to discharge.

I never . . . leave a round chambered. . . . I have no idea but . . . there's
no way you can touch it and make it fire like it did. . . . The trigger must've
been all the way back. . . . [S]omehow the trigger was . . . ready to go
which [it] shouldn't a been. . . . I took the magazine out and it went off. It
just . . . it shot. . . . [T]hen I hit the trigger and the trigger is, like I said, it's
a hair trigger. . . . [T]he only gun I, I have one gun that I leave a round
chambered and that's in my safe.

Further, in closing argument, the State expressly relied on the erroneous

definition of reckless in Instruction 12 to argue that reckless meant that Peters knew

"something really bad could happen."

[S.P.] died as a result of the defendant's reckless conduct: . . . he in fact
engaged in reckless conduct. What is reckless conduct What does it
mean in this room? On the next page, we tell you. In Instruction Number
12, we tell you what reckless conduct means. We tell you that a person is
reckless or acts recklessly when he knows of and disregards a substantial
risk that a wrongful act will happen. He knows that something really bad
could happen, a substantial risk that a wrongful act will occur, and that

15

No. 64568-4-I/16

this disregard is a gross deviation from the conduct that a reasonable
person would exercise.
Now, later on -- excuse me for skipping around -- we describe
negligence: and the only difference between the two is, the reckless says
he knows of and disregards a substantial risk; and negligence says he
fails to be aware of a substantial risk. In both, the disregard is a gross
deviation.

The State has not carried its burden of showing that the error was harmless. It is

not clear beyond a reasonable doubt that the outcome of the trial would have been the

same absent the erroneous jury instruction. Because the erroneous jury instruction

defining recklessness relieved the State of its burden of proof and the instruction is not
harmless beyond a reasonable doubt, we reverse and remand for a new trial.9

WE CONCUR:

9 Because we conclude that the court erred in instructing the jury on the mens rea definition of
recklessness and remand for a new trial, we need not address Peters' argument that his attorney provided
ineffective assistance of counsel and the court erred in admitting gun evidence. Nonetheless, we note that
while an individual has the right to possess guns, relevant evidence concerning the use of guns may be
admissible. State v. Hancock, 109 Wn.2d 760, 767-68, 748 P.2d 611 (1988).
16