State v. Orn

S
            FILE                                                                 THIS OPINION WAS FILED
                                                                                FOR RECORD AT 8 A.M. ON
       IN CLERK’S OFFICE                                                             MARCH 18, 2021
SUPREME COURT, STATE OF WASHINGTON
        MARCH 18, 2021
                                                                                   SUSAN L. CARLSON
                                                                                 SUPREME COURT CLERK




              IN THE SUPREME COURT OF THE STATE OF WASHINGTON


         STATE OF WASHINGTON,                             NO. 98056-0

                               Respondent,                 EN BANC

                v.                                         Filed :________________
                                                                   March 18, 2021

         NICHOLAS CONAN ORN,

                               Petitioner.

               GORDON MCCLOUD, J.—Both the federal and state constitutions protect

        the rights of criminal defendants to present a complete defense and to confront

        adverse witnesses. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; Davis v.

        Alaska, 

415 U.S. 308

, 316, 

94 S. Ct. 1105

, 

39 L. Ed. 2d 347

(1974); Chambers v.

        Mississippi, 

410 U.S. 284

, 294, 

93 S. Ct. 1038

, 

35 L. Ed. 2d 297

(1973); State v.

        Jones, 

168 Wash. 2d 713

, 720, 

230 P.3d 576

(2010); State v. Darden, 

145 Wash. 2d 612

,

        620, 

41 P.3d 1189

(2002) (citing Washington v. Texas, 

388 U.S. 14

, 23, 

87 S. Ct.

1920

, 

18 L. Ed. 2d 1019

(1967)). “The primary and most important component” of

        the confrontation right “is the right to conduct a meaningful cross-examination of
State v. Orn (Nicholas Conan), No. 98056-0


adverse witnesses.” 

Darden, 145 Wash. 2d at 620

(citing State v. Foster, 

135 Wash. 2d

441

, 455-56, 

957 P.2d 712

(1998) (plurality opinion)). Cross-examination designed

to expose a witness’s bias has long been recognized as particularly important

because it reveals a “witness’ motivation in testifying.” 

Davis, 415 U.S. at 316

.

      In this case, we are asked whether the trial court violated petitioner Nicholas

Conan Orn’s rights to confrontation and to present a complete defense when it

barred him from cross-examining the State’s key witness to expose the witness’s

bias. Orn was charged with attempted first-degree murder after he shot and

wounded Thomas Seamans in Kent, Washington in 2016. At trial, Orn sought to

cross-examine Seamans on the nature and extent of Seamans’s work as a

confidential informant for the Kent Police Department (KPD). But the trial court

limited Orn’s proposed line of cross-examination to a single, misleading question:

“[I]sn’t it true that . . . you have actually worked with the Kent Police?” 8

Verbatim Report of Proceedings (VRP) (Jan. 16, 2018) at 875. The Court of

Appeals affirmed in an unpublished opinion, and we granted review. State v. Orn,

No. 78089-1-I (Wash. Ct. App. Nov. 18, 2019) (unpublished),

http://www.courts.wa.gov/opinions/pdf/780891.pdf, review granted, 

195 Wash. 2d

1018

(2020).




                                          2
State v. Orn (Nicholas Conan), No. 98056-0


      We reiterate our prior decisions holding that highly relevant bias evidence,

such as the defense-proffered evidence of Seamans’s agreement to work as a

confidential informant, is admissible unless the State articulates a compelling

interest for excluding it. We further hold that the single question the trial court

allowed the defense to ask in this case tended to obfuscate, rather than highlight,

any potential bias. As a result, the trial court’s decision to exclude all other

evidence related to that informant agreement violated constitutional protections

and constituted an abuse of discretion. The State, however, has carried its burden

of proving beyond a reasonable doubt that this constitutional error was harmless.

Orn’s challenge to the trial court’s jury instruction on the elements of the offense

also fails. We therefore affirm.

                                        FACTS

      In 2016, Orn lived with his girlfriend, Kimberly Boals, in an apartment

complex in Kent. 5 VRP (Jan. 9, 2018) at 360. They were both acquainted with

Seamans, who was living in a nearby garage unit in the same complex. 7 VRP

(Jan. 11, 2018) at 762, 769. Orn moved out of the apartment after he and Boals

broke up in July 2016, but he left some personal property behind. 5 VRP (Jan. 9,

2018) at 367-68. Some of that property ended up in Seamans’s garage.

Id. at 369-

71.

3

State v. Orn (Nicholas Conan), No. 98056-0


      Orn was upset about this, and over the next few weeks there was conflict

between the three individuals as Orn attempted to get his belongings back.

Id. at

372, 384-85, 449.

Boals warned Seamans that Orn was “highly upset,” “unstable,”

and had access to a gun.

Id. at 448.

She testified that the two men conveyed

threats to one another through her.

Id. at 449.

Seamans, however, denied having

been threatened by Orn directly or through Boals and said that he’d never made

any threats, either. 7 VRP (Jan. 11, 2018) at 783.

      In any case, around 7:30 p.m. on August 2, 2016, Orn sent a barrage of

angry text messages to Boals. 8 VRP (Jan. 16, 2018) at 1025-27. Around 8:30, he

arrived at Boals’s apartment with a .22 rifle. 5 VRP (Jan. 9, 2018) at 389-90. Orn

appeared “angry, irrational, not in a good state of mind,” and Orn told Boals that

he was going to “go confront Thomas.”

Id. at 390.

Orn loaded his gun in the

kitchen, and a frightened Boals told Orn she’d call the police if he didn’t stop

making threats.

Id. at 390-92.

Orn then said “something to the effect of . . . I don’t

want to hurt you as well . . . don’t do that.”

Id. at 392.

      Orn left the apartment, went to Seamans’s nearby garage, and “yanked

open” the garage door. Id.; 7 VRP (Jan. 11, 2018) at 784. Inside, Seamans was

lying on the couch. 7 VRP (Jan. 11, 2018) at 784. According to Seamans, Orn then

opened fire, shooting Seamans in the face, chest, arm, hand, back, and buttock as



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State v. Orn (Nicholas Conan), No. 98056-0


Seamans ran toward the back of the garage for cover.

Id. at 787-89; 8

VRP (Jan.

16, 2018) at 982-88. Orn fired 11 rounds in all. 8 VRP (Jan. 16, 2018) at 943. Orn

returned to Boals’s apartment and told her, “I just shot Thomas like 20 times.” 5

VRP (Jan. 9, 2018) at 393. Boals ran outside, found the injured Seamans, and had a

neighbor call 911.

Id. at 395.

Officers from the KPD arrived shortly after, and Orn

was arrested at the scene.

Id. at 329-34, 497.

At trial, his lawyer acknowledged that

Orn fired the shots but argued that they were fired in self-defense.

      Fortunately, Seamans survived the shooting. Several months later, in

December 2016, Seamans was investigated by the Kirkland Police Department for

felony theft and identity theft. Supplemental Clerk’s Papers (Suppl. CP) at 5. Soon

after, the KPD contacted Seamans and made him an offer: if Seamans worked as a

confidential informant on two controlled buys of drugs, stolen property, or

firearms, his Kirkland felony charges would not be forwarded to the King County

Prosecuting Attorney’s Office. 2 VRP (Jan. 3, 2018) at 16-17; Suppl. CP at 2-4.

Seamans accepted and signed a written agreement. Suppl. CP at 2-4.

                               PROCEDURAL HISTORY

      At Orn’s trial, the court granted the State’s motion in limine to exclude

Seamans’s informant agreement and to bar Orn from asking Seamans any

questions about the nature and extent of the agreement. Clerk’s Papers (CP) at 184;



                                          5
State v. Orn (Nicholas Conan), No. 98056-0


2 VRP (Jan. 3, 2018) at 21. Ultimately, the only question defense counsel was

permitted to ask Seamans about the agreement at trial was “[I]sn’t it true that since

this incident, you have actually worked with Kent Police Department?”, to which

Seamans responded, “Yes.” 8 VRP (Jan. 16, 2018) at 875.

      Orn was convicted of attempted murder in the first degree with a firearm

enhancement. CP at 135-36. On appeal, he argued that the exclusion of any

evidence related to the informant agreement violated his Sixth Amendment rights

to present a defense and to cross-examine adverse witnesses, requiring reversal.

Orn, No. 78089-1-I, slip op. at 13. He also assigned error to the trial court’s

instruction to the jury on the elements of attempted first-degree murder.

Id. at 7.

      The Court of Appeals affirmed.

Id. at 1.

It rejected Orn’s jury instruction

argument.

Id. at 10.

And it rejected Orn’s Sixth Amendment claims using

deferential abuse-of-discretion review.

Id. at 20-21.

The appellate court

characterized the issue as solely a question of admissibility of bad character

evidence; hence it failed to separately analyze whether the evidence was relevant

or admissible, under the constitution, to show bias.

Id. Orn petitioned for

review,

which we granted without limitation.




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State v. Orn (Nicholas Conan), No. 98056-0


                                STANDARD OF REVIEW

       We review de novo whether the trial court’s evidentiary rulings abridged a

defendant’s Sixth Amendment rights. State v. Arndt, 

194 Wash. 2d 784

, 797, 

453

P.3d 696

(2019) (citing 

Jones, 168 Wash. 2d at 719

); State v. Clark, 

187 Wash. 2d 641

,

648-49, 

389 P.3d 462

(2017); State v. Iniguez, 

167 Wash. 2d 273

, 280-81, 

217 P.3d

768

(2009). If a claim is raised under the Evidence Rules (ER), we review that for

abuse of discretion. 

Arndt, 194 Wash. 2d at 797

(citing State v. Yates, 

161 Wash. 2d 714

,

762, 

168 P.3d 359

(2007)). No such ER claim was raised in this case; even if one

had been, “An abuse of discretion is found if the trial court . . . applies the wrong

legal standard[] or bases its ruling on an erroneous view of the law,” 1 so a court

“‘necessarily abuses its discretion by denying a criminal defendant’s constitutional

rights.’” 2

       We review de novo a challenged jury instruction. State v. DeRyke, 

149

Wash. 2d 906

, 910, 

73 P.3d 1000

(2003) (citing State v. Pirtle, 

127 Wash. 2d 628

, 656,

904 P.2d 245

(1995)).




       1
         State v. Lord, 

161 Wash. 2d 276

, 284, 

165 P.3d 1251

(2007) (citing Mayer v. Sto
Indus., Inc., 

156 Wash. 2d 677

, 684, 

132 P.3d 115

(2006)).
       2
        

Iniguez, 167 Wash. 2d at 280

(quoting State v. Perez, 

137 Wash. App. 97

, 105, 

151
P.3d 249

(2007)).

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State v. Orn (Nicholas Conan), No. 98056-0


                                       ANALYSIS

   I.      A trial court violates a defendant’s Sixth Amendment rights when it
           effectively hides the fact that the prosecution’s key witness worked as a
           confidential informant for the same police department that investigated
           the case

        Seamans was the State’s key witness and the only testifying eyewitness to

the shooting. Orn sought to cross-examine Seamans to expose the clear possibility

that Seamans was motivated to testify in order to curry favor with the police

department and the prosecutor’s office holding the power to prosecute him—the

same police department and prosecutor’s office that were involved in Orn’s case.

The trial court acknowledged the relevance of this evidence but excluded nearly all

of it by implied reference to ER 403, determining that the evidence’s probative

value was substantially outweighed by unfair prejudice or confusion of issues. It

specifically refused to permit “any questioning regarding the agreement itself or

the nature of the agreement or the case.” 2 VRP (Jan. 3, 2018) at 21. The court

proceeded to limit cross-examination on the topic to a single, misleading question.

Id. at 21-22.

        But the right to present evidence of a witness’s bias is essential to the

fundamental constitutional right of a criminal defendant to present a complete

defense, which encompasses the right to confront and cross-examine adverse

witnesses. 

Davis, 415 U.S. at 316

; 

Chambers, 410 U.S. at 294

; Jones, 

168 Wash. 2d

8

State v. Orn (Nicholas Conan), No. 98056-0


at 720; 

Darden, 145 Wash. 2d at 620

(citing 

Washington, 388 U.S. at 23

). The right to

cross-examine for bias is especially important where, as here, that bias stems from

a witness’s motive to cooperate with the State based on the possibility of leniency

or the desire to avoid prosecution. Delaware v. Van Arsdall, 

475 U.S. 673

, 677,

106 S. Ct. 1431

, 

89 L. Ed. 2d 674

(1986). Orn’s right to present a defense was

violated by the single, misleading question, combined with the exclusion of other

proffered evidence on this topic.

      We stress, however, that if the single question allowed was not misleading,

this case would be much more difficult. Neither the right to confront nor the right

to present a defense are without limitation. 

Darden, 145 Wash. 2d at 621

; 

Jones, 168

Wash. 2d at 720

. For example, a defendant has no right to present irrelevant evidence.

State v. Hudlow, 

99 Wash. 2d 1

, 15, 

659 P.2d 514

(1983) (citing 

Washington, 388

U.S. at 16

). And “the Constitution permits judges ‘to exclude evidence that is

“repetitive . . . only marginally relevant” or poses an undue risk of “harassment,

prejudice, [or] confusion of the issues.”’” Holmes v. South Carolina, 

547 U.S. 319

,

326-27, 

126 S. Ct. 1727

, 

164 L. Ed. 2d 503

(2006) (alterations in original) (quoting

Crane v. Kentucky, 

476 U.S. 683

, 689-90, 

106 S. Ct. 2142

, 

90 L. Ed. 2d 636

(1986)

(quoting Van 

Arsdall, 475 U.S. at 679

)). Washington’s ER 403 serves just such a

permissible purpose, allowing exclusion of relevant evidence if, inter alia, “its



                                          9
State v. Orn (Nicholas Conan), No. 98056-0


probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury.”

      If, on de novo review, we determined as a matter of law that the question

had not been misleading and that the excluded evidence was not critically

important, then the court’s decision to admit or exclude the evidence should have

been subject to the normal abuse of discretion standard applied to a trial judge’s

evidentiary decisions under ER 403 and ER 404(b). See 

Hudlow, 99 Wash. 2d at 22

(“[s]ince the scope of such cross-examination is within the discretion of the trial

court and is to be disturbed only upon abuse of discretion” (citing State v. Krausse,

10 Wash. App. 574

, 577, 

519 P.2d 266

(1974)). Hudlow considered whether the

defendant’s right to present a defense was violated by the trial court’s application

of the rape shield statute to exclude evidence of the victims’ prior sexual history.

Id. at 3.

The test we articulated in Hudlow asks (1) whether the excluded evidence

was at least minimally relevant, (2) whether the evidence was “so prejudicial as to

disrupt the fairness of the factfinding process at trial,” and, if so, (3) whether the

State’s interest in excluding the prejudicial evidence outweighs the defendant’s

need to present it.

Id. at 15.

Hudlow did not specify the standard of review that we

applied to each of those three factors. A trial court’s rulings on relevance and

prejudice, however, are generally reviewed for abuse of discretion, while a trial



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State v. Orn (Nicholas Conan), No. 98056-0


court’s rulings on Sixth Amendment claims are generally reviewed de novo. Even

under the abuse of discretion standard, the trial court erred in barring Orn from

cross-examining Seamans on the nature and extent of the confidential informant

agreement to expose possible bias.

          A. Evidence of Seamans’s bias was far more than minimally relevant

      A witness’s bias is “‘always relevant as discrediting the witness and

affecting the weight of his testimony.’” 

Davis, 415 U.S. at 316

(quoting 3A JOHN

HENRY WIGMORE, EVIDENCE § 940, at 775 (Chadbourn rev. ed. 1970)). And “the

more essential the witness is to the prosecution’s case, the more latitude the

defense should be given to explore fundamental elements such as motive, bias, [or]

credibility.” 

Darden, 145 Wash. 2d at 619

.

      Here, Seamans was just such an “essential” witness in the State’s case. Orn

did not testify. Thus, as the only testifying eyewitness to the shooting, Seamans

was the only witness providing direct evidence of Orn’s actions and expressions of

intent within the garage, and the only source of evidence about his own response

when Orn entered. 7 VRP (Jan. 11, 2018) at 784. Thus, Seamans’s credibility was

critical to the State’s ability to prove that Orn premeditated and did not act in self-

defense—meaning that as an initial matter, Orn should have had wide latitude to

explore Seamans’s bias and motivation to testify. 

Darden, 145 Wash. 2d at 619

.



                                          11
State v. Orn (Nicholas Conan), No. 98056-0


      Evidence of bias is particularly probative of a witness’s credibility when it

stems from a witness’s motive to cooperate with the State based on the possibility

of leniency or the desire to avoid prosecution. See, e.g., Van 

Arsdall, 475 U.S. at

679

; 

Davis, 415 U.S. at 318

; State v. Portnoy, 

43 Wash. App. 455

, 461, 

718 P.2d 805

(1986) (quoting State v. Brooks, 

25 Wash. App. 550

, 551-52, 

611 P.2d 1274

(1980));

see also Giglio v. United States, 

405 U.S. 150

, 154-55, 

92 S. Ct. 763

, 

31 L. Ed. 2d

104

(1972). Such evidence serves as a “more particular attack on the witness’

credibility” because it exposes a witness’s motivation in testifying. 

Davis, 415 U.S.

at 316

. And “[t]he right of cross-examination allows more than the asking of

general questions concerning bias; it guarantees an opportunity to show specific

reasons why a witness might be biased in a particular case.” 

Brooks, 25 Wash. App.

at 551-52

(emphasis added) (citing Davis, 

415 U.S. 308

); see also State v. Fisher,

165 Wash. 2d 727

, 753, 

202 P.3d 937

(2009); State v. Robbins, 

35 Wash. 2d 389

, 396,

213 P.2d 310

(1950).

      Here, Orn was not permitted to ask Seamans any questions about the nature

of his work for the KPD that would elicit the specific reasons why Seamans might

have been biased. The single, vague question permitted—“[I]sn’t it true that since

this incident, you have actually worked with Kent Police Department?”—could not

apprise the jury of those specific reasons. And in fact, this question is affirmatively



                                          12
State v. Orn (Nicholas Conan), No. 98056-0


misleading—a reasonable listener would not likely interpret “worked with” to

indicate “worked as a confidential informant to avoid being charged himself.” But

the bias that an informant working off charges has to curry favor with the police

and prosecutor’s office holding the power to prosecute him is qualitatively

different than the potential bias of a regular employee of the police. Seamans’s

desire to avoid prosecution clearly could have “furnished [Seamans with] a motive

for favoring the prosecution in his testimony.” Van 

Arsdall, 475 U.S. at 679

. His

status as an informant at the time of Orn’s trial was highly relevant to his bias and

easily satisfied Hudlow’s minimal relevance requirement.

          B. The evidence was not unfairly prejudicial

      Because the evidence of Seamans’s potential bias far exceeded Hudlow’s

threshold of minimal relevance, it could not be excluded unless the State showed

“a compelling interest to exclude prejudicial or inflammatory evidence.” 

Darden,

145 Wash. 2d at 621

(citing 

Hudlow, 99 Wash. 2d at 16

). To justify exclusion, the State

must show that the evidence is “so prejudicial as to disrupt the fairness of the

factfinding process.” 

Hudlow, 99 Wash. 2d at 15

.

      The State did not make that showing here. It argued that admitting evidence

of the informant agreement would “disparag[e]” the KPD and King County

prosecutor by implying that they would give Seamans “some kind of backdoor



                                          13
State v. Orn (Nicholas Conan), No. 98056-0


favor if he testified favorably” for them. 2 VRP (Jan. 3, 2018) at 18. Assuming this

were true, the State still did not articulate how “disparaging” the state entities

responsible for investigating and prosecuting Seamans would create unfair

prejudice rather than reveal true risks to taking Seamans’s word at face value. See

Wilson v. Olivetti N. Am., Inc., 

85 Wash. App. 804

, 814, 

934 P.2d 1231

(1997)

(prejudice is unfair “only if it has the capacity to skew the truth-finding process”

(citing 

Hudlow, 99 Wash. 2d at 12-13

)). Nothing about the nature of the excluded

evidence suggests that it would inflame the jury or influence jurors’ ability to make

a rational decision. Lockwood v. AC&S, Inc., 

109 Wash. 2d 235

, 257, 

744 P.2d 605

(1987) (unfair prejudice prototypically results when jury is presented with

“evidence that is more likely to cause an emotional response than a rational

decision” (citing 5 KARL B. TEGLAND, WASHINGTON PRACTICE: WASHINGTON

EVIDENCE LAW AND PRACTICE § 106, at 249-50 (2d ed. 1982))). Instead, this was

classic bias evidence of the type at issue in Davis and Van Arsdall.

          C. Even if the State could show the evidence was unfairly prejudicial, its
             interest in excluding it is outweighed by Orn’s need for it

      Because the State cannot show that the evidence was unfairly prejudicial, the

inquiry should end here under the Hudlow analysis. But even if the State could

show such prejudice, Orn’s need to present the evidence outweighed it: Seamans




                                          14
State v. Orn (Nicholas Conan), No. 98056-0


was a key prosecution witness and the only testifying eyewitness to the crime,

making his motive and credibility crucially important.

      The State argues that Orn was still able to impeach Seamans’s credibility by

cross-examining Seamans on prior inconsistent statements, and that Boals’s

testimony portraying Seamans as dishonest further damaged his credibility. Suppl.

Br. of Resp’t at 22. This testimony certainly may have cast some doubt on

Seamans’s credibility. But the error in excluding evidence relating to the

agreement was specifically because it showed Seamans’s bias—not just that it

damaged his credibility generally. See 

Davis, 415 U.S. at 311

.

      The State also asserted interests in preventing interference with ongoing

investigations, retaining police’s ability to use informants in the future, and

protecting Seamans’s safety. 2 VRP (Jan. 3, 2018) at 19. To the extent that these

asserted interests are grounded in “the public need for effective law enforcement”

rather than a state interest in “precluding evidence” that may interfere with fairness

of trial, our analysis should be governed by the rule we set forth in 

Darden. 145

Wash. 2d at 622

, 626. But the State cannot prevail under that rule, either.

      In Darden, the defendant sought to cross-examine a police officer on the

precise location of a secret surveillance post. The State’s proffered justification for

excluding this line of questioning was a general safety concern for the owners of



                                          15
State v. Orn (Nicholas Conan), No. 98056-0


the premises used as a surveillance post.

Id. We held that

the Hudlow test does not

apply when the State asserts an interest stemming from “the public need for

effective law enforcement” rather than from an interest in excluding prejudicial

evidence.

Id. at 622.

But we applied an analysis similar to the one used in Hudlow,

anyway: we determined that establishing the surveillance post’s location was

relevant to the defense and that the State had not provided “a lawful justification to

withhold that evidence.”

Id. at 625

(citing ER 403). Thus, we held that the

“defendant’s confrontation right to challenge the accuracy and veracity of a key

witness for the State triumphs over the State’s asserted interest to not reveal the

precise location of an observation post.”

Id. at 615.

      The State’s justification fails for similar reasons here. Just as in Darden, the

State here has not offered a sufficient “lawful justification” to exclude the defense-

proffered evidence because it failed to show that its interest in exclusion outweighs

Orn’s interest in testing Seamans’s bias. The State argued that because the

investigations involving Seamans as an informant were ongoing, allowing

testimony on the nature and extent of Seamans’s agreement would undermine

police ability to use informant agreements generally. 2 VRP (Jan. 3, 2018) at 19.

But this generic concern with the efficacy of a law enforcement tool is even more

attenuated than the argument we rejected in Darden—and, as in Darden, such



                                          16
State v. Orn (Nicholas Conan), No. 98056-0


generic concerns provide “no ground to prevent relevant cross-examination of the

State’s key 

witness.” 145 Wash. 2d at 626

. And while Orn sought to question

Seamans on the nature of the agreement, he did not seek to elicit details regarding

any specific ongoing investigation. 2 VRP (Jan. 3, 2018) at 21.

       Finally, the State’s asserted interest in protecting Seamans’s identity is not

persuasive, since his identity had already been revealed in open court.

Id. at 19;

see

Roviaro v. United States, 

353 U.S. 53

, 60, 

77 S. Ct. 623

, 

1 L. Ed. 2d 639

(1957).

       We therefore agree with Orn that even under an abuse of discretion standard,

his need to present this evidence outweighed any purported state interest in

excluding it. See State v. Ahlfinger, 

50 Wash. App. 466

, 475 n.4, 

749 P.2d 190

(1988) (“Clearly, the State’s interest in keeping information about plea bargains or

offers of leniency from the jury is outweighed by the defendant’s right to confront

the witnesses and alert the jury to their potential bias.”). The trial court’s limitation

of cross-examination to the misleading question whether Seamans had “worked

with” the KPD denied Orn his rights to confrontation and to present a defense. 3


       3
           The error was compounded when the trial court later denied Orn’s renewed
request to cross-examine Seamans about the agreement, this time after Seamans
improperly bolstered his good character on direct examination. In response to the
prosecutor’s request that Seamans say “a little bit about [him]self,” Seamans replied that
he was “a proactive pothead,” explaining, “I work hard every day, I visit my family, and I
. . . just stay proactive in not doing anything out of the question really.” 7 VRP (Jan. 11,
2018) at 760. Orn argued that Seamans’s assertion that he does not “do[] anything out of
the question” opened the door to cross-examination on the informant agreement and the

                                            17
State v. Orn (Nicholas Conan), No. 98056-0


Because the trial court excluded evidence in violation of Orn’s constitutional

rights, the exclusion also constitutes an abuse of discretion in applying ER 403.

Iniguez, 167 Wash. 2d at 280

-81.

   II.      The trial court’s error was harmless beyond a reasonable doubt

         Violations of the rights to present a defense and to confront adverse

witnesses at trial are subject to constitutional harmless error review. State v.

Romero-Ochoa, 

193 Wash. 2d 341

, 347, 

440 P.3d 994

(2019) (citing

Van 

Arsdall, 475 U.S. at 684

; State v. Lui, 

179 Wash. 2d 457

, 495, 

315 P.3d 493

(2014); 

Jones, 168 Wash. 2d at 724

), cert. denied, 

141 S. Ct. 398

(2020). “An error is

harmless and not grounds for reversal if the appellate court is assured [by the State]

beyond a reasonable doubt that the jury would have reached the same verdict

without the error.”

Id. (citing Lui, 179

Wn.2d at 495; 

Jones, 168 Wash. 2d at

724

; Van 

Arsdall, 475 U.S. at 684

). Where impeachment evidence has been

erroneously excluded, “‘[t]he correct inquiry is whether, assuming that the

damaging potential of the cross-examination were fully realized, [we can]


charged crimes leading up to it.

Id. at 819-21;

see State v. Stockton, 

91 Wash. App. 35

, 40
& n.3, 

955 P.2d 805

(1998) (trial court may admit otherwise inadmissible evidence on
cross-examination “if the witness ‘opens the door’ during direct examination and the
evidence is relevant to some issue at trial”). Seamans’s testimony violated ER 608(a)—
which generally bars a witness from testifying about his good character using specific
instances of conduct on direct examination—and thus increased the need for, and
relevance of, counterbalancing impeachment evidence. See State v. Lord, 

117 Wash. 2d 829

,
892-94, 

822 P.2d 177

(1991); State v. Gefeller, 

76 Wash. 2d 449

, 455, 

458 P.2d 17

(1969).

                                           18
State v. Orn (Nicholas Conan), No. 98056-0


nonetheless say that the error was harmless beyond a reasonable doubt.’”

Id. at 348

(alterations in original) (quoting Van 

Arsdall, 475 U.S. at 684

). To that end, we

must “find the error harmless if, in light of the entire trial record, we are convinced

that the jury would have reached the same verdict absent the error.”

Id. We

consider factors

including “the properly admitted direct and circumstantial

evidence . . . and the overall significance of the erroneously admitted or excluded

evidence in this context (e.g., whether it was cumulative or corroborated, or

consistent with the defense theory).” Id. (citing Van 

Arsdall, 475 U.S. at 684

).

      Here, the “damaging potential” of the prohibited cross-examination was its

potential to cast Seamans’s entire testimony in a different light by revealing a self-

interested motive to fabricate or exaggerate. Van 

Arsdall, 475 U.S. at 684

. But

even if the damaging potential of the proposed cross-examination had been

realized—indeed, even had Seamans not testified at all—we are convinced, based

on the entire record, that the jury would have reached the same verdict.

      Uncontradicted evidence linked Orn to the shooting. Orn owned a .22 caliber

long rifle. 5 VRP (Jan. 9, 2018) at 375. Orn confessed to Boals immediately after

the shooting.

Id. at 393.

A short time thereafter, police arrested Orn in front of

Boals’s apartment; inside, they found a 10/22 .22 long rifle and a Butler Creek

extended magazine capable of holding 25 cartridges. 3 VRP (Jan. 8, 2018) at 97; 6



                                          19
State v. Orn (Nicholas Conan), No. 98056-0


VRP (Jan. 10, 2018) at 690-92. Orn’s DNA (deoxyribonucleic acid) was on the

rifle. 8 VRP (Jan. 16, 2018) at 910. The rifle had one cartridge in the chamber; the

magazine contained 13 cartridges. 6 VRP (Jan. 10, 2018) at 704. Eleven empty

shell casings were found inside Seamans’s garage.

Id. at 747.

      Because Orn did not testify, we have no direct evidence of his mental state at

the time of the shooting. But uncontradicted evidence established premeditation.

One to two hours before the shooting, Orn sent Boals multiple text messages

expressing his anger at her and Seamans—among them, “I hope . . . [you’re] gone

when I come back there. I don’t want to hurt you, too,” “Honestly, I feel like going

on a fucking rampage right now,” and concluding with “I don’t even need time to

make a decision at this point. I’m certain as to what I’m going to do.” 8 VRP (Jan.

16, 2018) at 1025-27. And after arriving at Boals’s apartment that night, Orn

expressed to Boals that he was going to “threaten and/or shoot” Seamans while, or

shortly after, loading his gun. 5 VRP (Jan. 9, 2018) at 390-91. Thus, the jury was

able to consider Orn’s state of mind right before his entry into the garage along

with his confession afterward.

      There were some small utility knives on shelves in Seamans’s garage, along

with a heavy crowbar, but none of these items were taken into evidence because

they did not appear to have been used in the altercation, thus corroborating



                                         20
State v. Orn (Nicholas Conan), No. 98056-0


Seamans’s testimony that he did not provoke Orn. 7 VRP (Jan. 11, 2018) at 782,

827; 8 VRP (Jan. 16, 2018) at 991. Finally, the number of shots fired—11—and

the extent of Seamans’s wounds also corroborate Seamans’s testimony that Orn

was not acting in self-defense. 6 VRP (Jan. 10, 2018) at 747; 8 VRP (Jan. 16,

2018) at 943; see, e.g., State v. Asaeli, 

150 Wash. App. 543

, 598, 

208 P.3d 1136

(2009) (an “excessively forceful response to [a] perceived threat” may provide a

basis for jury to reject defendant’s claim of self-defense); State v. Brigham, 52 Wn.

App. 208, 210, 

758 P.2d 559

(1988) (trial court properly declined to give self-

defense instruction where defendant stabbed victim eight times in the back; this

“was excessive force as a matter of law under the circumstances, and could not be

successfully interjected as self-defense”). We therefore hold that while the trial

court’s exclusion of the above-discussed bias evidence was error, it was harmless

beyond a reasonable doubt in light of the entire record.

   III.      The challenged jury instruction was correct under our controlling
             decisions

          Orn raises a second issue: whether the to-convict jury instruction on

attempted first-degree murder relieved the State of its burden to prove that he acted

with premeditation. We hold that it did not.

          Jury instructions satisfy due process “when, taken as a whole, they properly

inform the jury of the applicable law, are not misleading, and permit the defendant


                                            21
State v. Orn (Nicholas Conan), No. 98056-0


to argue his theory of the case.” State v. Tili, 

139 Wash. 2d 107

, 126, 

985 P.2d 365

(1999) (citing State v. Theroff, 

95 Wash. 2d 385

, 389, 

622 P.2d 1240

(1980)). When

the trial court gives a to-convict instruction, that instruction must “contain all of

the elements of the crime because it serves as a ‘yardstick’ by which the jury

measures the evidence to determine guilt or innocence.” State v. Smith, 

131 Wash. 2d

258

, 263, 

930 P.2d 917

(1997) (quoting State v. Emmanuel, 

42 Wash. 2d 799

, 819,

259 P.2d 845

(1953)).

      The statutory crime of attempt “contains two essential elements the State has

to prove to secure a conviction: (1) intent to commit a specific crime and (2) any

act constituting a substantial step toward the commission of that crime.” State v.

Nelson, 

191 Wash. 2d 61

, 71, 

419 P.3d 410

(2018) (citing State v. Aumick, 

126

Wash. 2d 422

, 429, 

894 P.2d 1325

(1995)); RCW 9A.28.020. Therefore, while a to-

convict instruction for an attempt crime must contain these essential elements, it

need not also set out the elements of the substantive crime attempted. 

DeRyke, 149

Wash. 2d at 911

; 

Nelson, 191 Wash. 2d at 72

. Instead, the elements of the substantive

crime attempted may be contained in a separate, definitional jury instruction.

DeRyke, 149 Wash. 2d at 911

.




                                           22
State v. Orn (Nicholas Conan), No. 98056-0


       That is exactly what happened here. The State proposed the following

instruction for attempted first-degree murder based on the WPICs 4:

                To convict the defendant of the crime of attempted murder in the first
           degree . . . each of the following elements of the crime must be proved
           beyond a reasonable doubt:
                (1) That on or about August 2, 2016, the defendant did an act that was
           a substantial step toward the commission of murder in the first degree;
                (2) That the act was done with the intent to commit murder in the first
           degree; and
                (3) That the act occurred in the State of Washington.

CP at 68. Orn requested that the second element be altered to read, “[That] the act

was done with the premeditated intent to commit murder in the first degree.” 10

VRP (Jan. 18, 2018) at 1116 (emphasis added). The court denied Orn’s request,

explaining that this would be “redundant” because “the definition of [first-degree]

murder includes premeditation.”

Id. A separate instruction

defined first-degree

murder as follows:

             A person commits the crime of murder in the first degree when, with a
       premeditated intent to cause the death of another person, he or she causes the
       death of such person unless the killing is justifiable.

CP at 71.5 Thus, as the Court of Appeals explained, the jury could not have

convicted Orn of attempted first degree murder without finding that he took a


       11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:
       4

CRIMINAL 100.02, at 434 (4th ed. 2016) (WPIC).
       5
         The trial court gave separate instructions on premeditation, intent, and substantial
step, also following the WPICs. CP at 69-72.

                                             23
State v. Orn (Nicholas Conan), No. 98056-0


substantial step toward committing first-degree murder with the premeditated

intent to cause the death of another. Orn, No. 78089-1-I, slip op. at 13. The to-

convict instruction did not omit any essential element of the crime of attempt, and

“taken as a whole,” the jury instructions “properly inform[ed] the jury of the

applicable law.” 

Tili, 139 Wash. 2d at 126

(citing 

Theroff, 95 Wash. 2d at 389

). There

was no error.

                                    CONCLUSION

      We hold that the trial court’s decision to exclude defense-proffered bias

evidence was both an abuse of discretion and a violation of Orn’s constitutional

rights to present a defense and to confront and cross-examine witnesses. However,

after a careful examination of the entire record, we hold that the State carried its

burden of proving that the error was harmless beyond a reasonable doubt. And the

trial court’s instruction to the jury on the elements of attempted murder complied

with our cases and with constitutional requirements.

      We therefore affirm the Court of Appeals, but on different grounds.




                                          24
State v. Orn (Nicholas Conan), No. 98056-0




                                             __________________________




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