The City of Seattle, Respondent, v. Paul H. Patu, Petitioner, 147 Wash. 2d 717

Chambers, J. — We are asked to determine whether the invited error doctrine precludes consideration of the petitioner’s complaint that an essential element was omitted from the jury instructions at his trial. We conclude that it does. In November 1994, Paul H. Patu and his friend, J.T. Loveless, joined a group of late night revelers in Othello Park. Shortly thereafter, Seattle police responding to a complaint of noise investigated Loveless for an alcohol violation. When the police attempted to arrest Loveless on outstanding warrants, he resisted.

Concerned about possible use of excessive force as police attempted to subdue Loveless, Patu kept rushing at the officers, yelling obscenities and ignoring orders to stay back. Patu was charged with physically interfering with an officer and with refusing to leave a crime scene when requested to do so by police. He was tried by jury in Seattle Municipal Court. The Seattle obstruction ordinance provides in relevant part: A. A person is guilty of obstructing a public officer if, with knowledge that the person obstructed is a public officer, he or she: 1.

Intentionally and physically interferes with a public officer; or 5. Intentionally refuses to leave the scene of an investigation of a crime while an investigation is in progress after being requested to leave by a public officer. Seattle Municipal Code 12A. 16.010. The trial court adopted defense counsel’s proposed “to convict” instruction, which did not refer to obstruction as an element. The jury convicted Patu on both counts. His appeal to the superior court was stayed pending the outcome of a constitutional challenge to Seattle’s obstruction ordinance. See City of Seattle v. Abercrombie, 85 Wn.

App. 393, 945 P.2d 1132 (1997). In Abercrombie, the Court of Appeals held that in order to preserve its constitutionality, the obstruction ordinance must be read as a whole, including the elements of “actual obstruction” and “known public officer” found in the introductory language of

section A. When Abercrombie was decided, the superior court lifted Patu’s stay and affirmed his conviction. Patu appealed to the Court of Appeals, arguing that the “to convict” instruction violated due process by relieving the State of its burden of proving every element beyond a reasonable doubt, thereby depriving him of a fair trial. See, e.g., State v. Stein, 144 Wn.2d 236, 241, 27 P.3d 184 (2001). The Court of Appeals concluded that the “to convict” instruction was defective but declined to reverse the conviction because the error was invited. City of Seattle v. Patu, 108 Wn.

App. 364, 375, 30 P.3d 522 (2001). The State does not challenge the Court of Appeals holding that the instruction was defective. The only issue before us is whether the instructional error was invited. We therefore do not address the constitutionality of the Seattle obstruction ordinance. The original goal of the invited error doctrine was to “prohibit [] a party from setting up an error at trial and then complaining of it on appeal.” State v. Pam, 101 Wn.2d 507, 511, 680 P.2d 762 (1984), overruled on other grounds by State v. Olson, 126 Wn.2d 315, 893 P.2d 629 (1995).

In Pam, the State intentionally set up an error in order to create a test case for appeal. Pam, 101 Wn.2d at 511. Since then, the doctrine has been applied even in cases where the error resulted from neither negligence nor bad faith. See, e.g., State v. Studd, 137 Wn.2d 533, 547, 973 P.2d 1049 (1999). In Studd, a consolidated case, the six defendants all proposed instructions that erroneously stated the law of self-defense. Id. at 545. Some, however, also proposed an instruction that effectively remedied the error.

While concluding that the error was of constitutional magnitude and therefore presumed prejudicial, we held that those defendants who had proposed the erroneous instruction without attempting to add a remedial instruction had invited the error and could not therefore complain on appeal. Id. at 546-47. This court has treated missing elements with especial care. Nevertheless, the invited error doctrine has been applied in cases where, as here, the “to convict” instruction omitted an essential element of the crime. See, e.g., State v.

Henderson, 114 Wn.2d 867, 869, 792 P.2d 514 (1990) (failing to specify the intended crime in a conviction for attempted burglary); State v. Summers, 107 Wn. App. 373, 380-82, 28 P.3d 780 (2001) (omitting the knowledge element of unlawful possession of a firearm). We affirm our holding in Studd. “ ‘ “A party may not request an instruction and later complain on appeal that the requested instruction was given.” ’ ” Studd, 137 Wn.2d at 546 (quoting Henderson, 114 Wn.2d at 870 (emphasis omitted in Studd) (quoting State v. Boyer, 91 Wn.2d 342, 345, 588 P.2d 1151 (1979))).

Accordingly, we affirm the Court of Appeals and remand this case to Seattle Municipal Court for reimposition of the sentence. Alexander, C.J., and Smith, Ireland, Bridge, and Owens, JJ., concur.