STATE v. THEROFF

HICKS, J.

On October 30, 1976, petitioner Phillip Lee Theroff, then a 62-year-old farmer, encountered Steve Carpenter, 24, and his brother Glenn, 20, trespassing upon his farm. The land was posted "no trespassing". It was bird hunting season. The Carpenters were hunting, had been drinking and were undeterred by the "no trespassing" signs.

A heated exchange occurred between petitioner and one or both of the Carpenters. The sequence of events is disputed, but ultimately both petitioner and Glenn Carpenter were shot and wounded. From his wound, Glenn Carpenter died. Details are set forth with more particularity in State v. Theroff, 25 Wn.App. 590, 608 P.2d 1254 (1980).

Petitioner was charged by information in Franklin County with two counts of first degree murder — count 1, with premeditation, and count 2, with circumstances manifesting an extreme indifference to human life. At the time of filing the information, also filed was a separate notice advising defendant that the State,

Subsequently, the information was amended realleging the two counts originally charged and adding a count of second degree felony-murder. The State did not file another notice of intent to seek enhanced penalties in conjunction with the amended information. Consequently, neither the original nor the amended information contained an allegation of a violation of RCW 9.41.025 or 9.95.040. No intention to seek an enhanced penalty under any of the counts was indicated in either information.

Trial was had to a jury and petitioner was found guilty of second degree felony-murder based upon second degree assault. Of the other counts, the trial court had dismissed one prior to commencement of the trial and not guilty verdicts were returned on the other. A special interrogatory returned by the jury found petitioner was armed with a deadly weapon, a firearm, at the time. In keeping with the enhanced penalty provisions of RCW 9.41.025 and 9.95.040, petitioner was sentenced to the Division of Institutions for a period of not more than 20 years and not less than 5 years.

Petitioner appealed. Division Three of the Court of Appeals affirmed. State v. Theroff, supra. We granted discretionary review and we affirm the Court of Appeals in part.

[1] On appeal, Theroff questioned the sufficiency of the evidence to support the verdict of the jury. In disposing of this issue, the Court of Appeals at page 593 correctly stated the rule of substantial evidence extant in this state prior to Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560, 99 S.Ct. 2781 (1979) and State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980). Substantial evidence, however, is no longer the standard to be used by a reviewing court in a criminal case in which challenge is made to the sufficiency of the evidence to convict. The standard pronounced in Jackson and adopted by this court in Green is set forth in Green at page 221:

Here, we are satisfied there was sufficient evidence from which a rational trier of fact could reasonably find beyond a reasonable doubt that petitioner pointed his loaded shotgun at Glenn Carpenter in a threatening manner and Carpenter's death was a consequence of that act. Thus, the result reached by the Court of Appeals in disposing of petitioner's challenge to the sufficiency of the evidence was correct.

In his petition for discretionary review, petitioner challenges instructions Nos. 15, 17, 19 and 20. The Court of Appeals found Nos. 15 and 17 unobjectionable and then refused to review Nos. 19 and 20 because the error alleged on appeal was not raised in the trial court.

Petitioner's objections to instructions Nos. 15 and 17 were that they constituted impermissible comments by the trial judge in violation of Const. art. 4, § 16. This constitutional provision prohibits a judge from conveying to the jury his personal belief in the merits of the cause or some issue therein. See State v. Cerny, 78 Wn.2d 845, 480 P.2d 199 (1971).

The challenged instructions are:

Petitioner argues that under instruction No. 15, the jury is required to find he was the aggressor and provoked the conflict. He then asserts instruction No. 17 compels the jury to regard the Carpenters as nonviolent trespassers. Taken together, petitioner contends, the instructions effectively preclude his argument of self-defense.

[2] Both instructions are correct statements of the law when considered in the abstract. The question, of course, is whether there is evidence in the case upon which the instructions may be predicated. Each side is entitled to have the trial court instruct upon its theory of the case if there is evidence to support that theory. State v. Dana, 73 Wn.2d 533, 536, 439 P.2d 403 (1968). The jury is admonished to consider the instructions as a whole and not single out any particular one. It is up to counsel to persuade the jury from the evidence in the case that his theory should be accepted when the court instructs upon more than one.

The State's theory was, in part, that the Carpenter brothers were nonviolent trespassers upon petitioner's farm. As we noted earlier, the evidence presented is conflicting but there is considerable testimony upon which instructions Nos. 15 and 17 could be based. We conclude, as did the Court of Appeals, that there was sufficient evidence to entitle the State to have the jury instructed on its theory of the case.

On the theory of self-defense, two instructions were given by the trial court to which petitioner objects:

Petitioner contends that instructions Nos. 19 and 20 infringed his right to a fair trial. He predicates his argument on the general rule that one owning or lawfully in possession of property may use such force as is reasonably necessary under the circumstances to protect the property. See Peasley v. Puget Sound Tug & Barge Co., 13 Wn.2d 485, 125 P.2d 681 (1942).

A person's right to use force is dependent upon what a reasonably cautious and prudent person in similar circumstances would have done and whether he reasonably believed he was in danger of bodily harm. Actual danger need not be present. State v. Ladiges, 66 Wn.2d 273, 401 P.2d 977 (1965); State v. Miller, 141 Wn. 104, 105, 250 P. 645 (1926). Consequently, an instruction which fails to incorporate "the essential element that the person using the force need only reasonably believe, in light of all the facts and circumstances known to him, that he... is in danger," is erroneous. State v. Fesser, 23 Wn.App. 422, 423, 595 P.2d 955, review denied, 92 Wn.2d 1030 (1979).

Obviously, instruction No. 20 lacks the qualification that the one using force may lawfully do so if he reasonably believes that he is in danger of bodily harm. The instruction was erroneous.

[3] The Court of Appeals refused to consider the objection to instruction No. 20 because it had not been raised in the trial court. An instruction identical to No. 20 in this case was before the same division of the Court of Appeals in Fesser. The issue was the same, that the error had not been raised in the trial court. The court set out the rule in such a situation on pages 423-24:

The Court of Appeals then proceeded contrary to the rule and considered the "instructional defect" because "the evidence presented a close question on the issue of self-defense." Fesser, at 424.

In the instant case, the same division of the Court of Appeals refused to consider an "instructional defect" not raised in the trial court presumably because the court did not find that the evidence presented a close question. In Fesser, the appellate court determined that in a self-defense issue where the evidence is close, a flawed instruction on self-defense is so crucial that it may have affected defendant's constitutional right to a fair trial. Of course, if an error adversely affects a constitutional right such error may be urged for the first time on appeal. See State v. Wicke, 91 Wn.2d 638, 591 P.2d 452 (1979).

We have carefully reviewed the report of proceedings in this case. We are not of the view that the evidence was close on the issue of self-defense. The trial appears to have been in all respects fair. We perceive no reason in this instance why we should deviate from our rule that defects in instructions not called to the trial court's attention will not be considered when raised for the first time on appeal.

Finally, petitioner contends he was denied procedural due process because neither the information nor the amended information charging him with various offenses alleged violations of either RCW 9.41.025 (armed with a firearm) or RCW 9.95.040 (armed with a deadly weapon). Nor did either information indicate an intention to seek an enhanced penalty under any of the charges listed.

[4] A separate notice of intention to seek an enhanced penalty under RCW 9.41.025 and 9.95.040 was served and filed with the first information. This was not done with the amended information. In State v. Frazier, 81 Wn.2d 628, 503 P.2d 1073 (1972), we determined that intention to charge under RCW 9.41.025 should be set forth in the information. In State v. Cosner, 85 Wn.2d 45, 50-51, 530 P.2d 317 (1975), Justice Hamilton writing for the court, said:

(Citations omitted.)

We adopt the above language in this case. It is the rule in this state — clear and easy to follow. When prosecutors seek enhanced penalties, notice of their intent must be set forth in the information. Our concern is more than infatuation with mere technical requirements. As we said in Frazier, supra at 634:

Because the prosecutor here did not follow the rule, he may not now ask the court to impose the rigors of our enhanced penalty statutes upon the defendant. The conviction is otherwise affirmed and the case remanded to the trial court for resentencing consistent with this opinion.

UTTER, C.J., and STAFFORD, BRACHTENBACH, HOROWITZ, and WILLIAMS, JJ., concur.

ROSELLINI, J. (concurring in part; dissenting in part)

Mr. Theroff and his attorney were aware and had notice of the State's intent to seek the mandatory minimum sentence. No one was misled or deceived that the enhanced penalty would not be sought.

It seems to me that substance should prevail over form. I have great faith that the prosecutors will follow the rule in State v. Cosner, 85 Wn.2d 45, 530 P.2d 317 (1975). In the few cases such as this one, the letter of the Cosner case has not been followed. However, actual notice to seek the enhanced penalty was understood by everyone.

There has been no miscarriage of justice, and I would affirm the enhanced penalty.

DOLLIVER, J., concurs with ROSELLINI, J.

Reconsideration denied February 13, 1981.