Full Opinion

Filed Washington State Court of Appeals Division Two November 3, 2026 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 61090-6-II Respondent, v. EERON LEE BUTLER, UNPUBLISHED OPINION Appellant. CRUSER, J.—A jury convicted Eeron Butler on two counts of second degree assault, each with a deadly weapon enhancement. Butler argues first that his second degree assault convictions must be vacated because there was insufficient evidence of his specific intent to cause fear and apprehension of bodily harm. Second, he argues that his deadly weapon enhancement was based on his use of a cane as a deadly weapon rather than on him being armed with a per se deadly weapon, and as such, the special verdict jury instruction relieved the State of its burden of proof because it instructed the jury on only a per se deadly weapon (a knife having a blade longer than three inches). The State responds that the evidence was sufficient for the jury to infer Butler acted with the requisite intent, and that under the invited error doctrine, Butler cannot challenge the deadly weapon instruction because he proposed the instruction. The State further argues that even if the claimed instructional error was not invited, the instruction was not erroneous because the deadly weapon enhancement was based on Butler being armed with a knife during the commission of the crime. No. 61090-6-II We conclude that Butler’s conviction is supported by sufficient evidence because a rational trier of fact could conclude that Butler acted with intent to create fear and apprehension of bodily harm. Additionally, we hold that even if the deadly weapon jury instruction had been erroneous, Butler invited the error by proposing the instruction. Accordingly, we affirm Butler’s convictions. FACTS I. BUTLER’S POLICE ENCOUNTER In August 2024, Tacoma Police were called to Billy B’s bar in Tacoma to deal with an unwanted individual at the bar. The individual was the defendant, Eeron Butler. The responding officers were familiar with Butler, having had previous recent contacts with him. As Officer Robert Jackson drove up to the bar, Butler called out to him. Butler was initially cooperative and started collecting his things, but when Officer Jackson confirmed for Butler that the business wanted him to leave, Butler became upset. As officers approached Butler to initiate the contact, Butler began threatening the officers and brandished a large, Bowie-style, fixed-blade knife. Officer Jackson described the knife blade as seven inches long and three inches wide. Butler was about 10 to 12 feet away from the officers when Butler told the officers that “he would skull [f***] [them] with his . . . knife and would kill [them].” 5 Verbatim Rep. of Proc. (VRP) at 2018. According to Officer Mohamud Ali, Butler “lunged at [them] when [they] first arrived, when he pulled [the knife] out, but then once [they] pulled out [their] gun[s], he backed up.” Id. at 2032. The officers ordered Butler to drop the knife, but he did not do so. Butler yelled at the officers to “back your bitch [a**] up.” Id. at 2061. During the encounter, Butler also held a walking cane. Officer Justin O’Brien described that Butler “looked [ ] like he was going to start swinging [the cane]. He raised it up in a manner 2 No. 61090-6-II as if he was going to swing it, and so I closed my door and locked it while the other officers” approached. Id. at 2093. Officer Jackson described Butler “pantomiming” with the cane, moving it between his legs. Id. at 2076. Butler eventually fled the scene but was later apprehended behind a nearby building. Footage of the incident was recorded on officers’ body cameras and admitted for the jury’s consideration. Butler can be seen holding a knife in one hand and swinging his cane with the other hand. Butler can also be seen stepping toward the officers while brandishing his knife. II. PROCEDURE AND TRIAL Butler was charged with two counts of assault in the second degree, and each charge was accompanied by a deadly weapon enhancement allegation.1 For purposes of the enhancement, the deadly weapon was alleged to be a knife. The jury was provided with a to-convict instruction as to each count,2 which instructed the jury that to find Butler guilty of second degree assault, it must find beyond a reasonable doubt that he assaulted the victim with a deadly weapon. Jury instruction 10 defined assault as an act done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury. Clerk’s Papers (CP) at 165. 1 Curiously, the information charged Butler with every alternative means of committing assault in the second degree despite the fact that the State did not assert, at any point in the case, any method of commission except for assault of another with a deadly weapon. 2 The information did not name a victim on either count of assault. In the to-convict instructions, count 1 was alleged to have been committed against Officer Ali and count 2 was alleged to have been committed against Officer Jackson. 3 No. 61090-6-II By way of definition, the jury was instructed that a “[d]eadly weapon means any weapon, device, instrument, substance, or article, which under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm.” Id. at 164. Butler proposed, and the trial court gave, the following instruction on the deadly weapon sentence enhancement: For purposes of a special verdict the State must prove beyond a reasonable doubt that the defendant was armed with a deadly weapon at the time of the commission of the crime. A person is armed with a deadly weapon if, at the time of the commission of the crime, the weapon is easily accessible and readily available for offensive or defensive use. The State must prove beyond a reasonable doubt that there was a connection between the weapon and the defendant [or an accomplice]. The State must also prove beyond a reasonable doubt that there was a connection between the weapon and the crime. In determining whether these connections existed, you should consider, among other factors, the nature of the crime and the circumstances surrounding the commission of the crime, including the location of the weapon at the time of the crime. A knife having a blade longer than three inches is a deadly weapon. Id. at 116, 170. 3 This instruction became jury instruction 15. III. THE STATE’S CLOSING ARGUMENT During closing arguments, the State asserted that both the cane, as Butler used it, and the knife were deadly weapons for the purposes of the second degree assault charge. It argued, Now, with a deadly weapon; deadly weapon is your Instruction No. 9. “A deadly weapon means any weapon, device, instrument, substance or article which under the circumstances in which it is used, attempted to be used or threatened to be used is readily capable of causing death or substantial bodily harm.” 3 This instruction mirrors WPIC 2.07.01 with the exception of the removal of the bracketed language “[or an accomplice].” Compare CP at 170, with 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 2.07.01 (5th Ed. 2024) (WPIC). 4 No. 61090-6-II A seven-inch fixed bladed knife, three inches wide, in an unpredictable man's hands; a cane being swung around, unpredictably, at law enforcement. .... I submit to you that both a knife that's seven inches in length and three -- approximately three inches in width that is metal, as well as this cane that is solid in nature being swung the way Mr. Butler was swinging it, both can be deadly weapons. So the State submits to you that, as it pertains to Assault in the Second Degree, the elements that, in fact, on or about August 11th of 2024, Mr. Butler did assault Officer Ali and Officer Jackson with a deadly weapon, and that this act occurred in the State of Washington. 6 VRP at 2507-2508 (emphasis added). The State then explained the special verdict instruction and clarified that the special verdict was distinct from the deadly weapon analysis as it pertained to assault in the second degree. The State remarked, Now, part of this instruction is there's a presumption that a knife having a blade longer than three inches is a deadly weapon. This instruction is talking about the deadly weapon special verdict. You have another deadly weapon instruction that we talked about earlier that goes straight to the element of the crime, deadly weapon, and then the deadly weapon special verdict. Those are different analyses. Id. at 2509 (emphasis added). Next, the State asserted that the knife qualified as a deadly weapon for the purposes of the special verdict based on its size and because one of the officers had seen the knife before. The State then immediately clarified that the cane was also a deadly weapon but only for the purposes of assault in the second degree. On rebuttal, the State again argued that the cane was a deadly weapon for the purposes of the assault charge and that the knife was a deadly weapon for the purposes of the special verdict. The State remarked, 5 No. 61090-6-II The cane isn't a red herring. Questions were asked about the cane. But you, as jurors, get to have Exhibit 15 with you in the jury room. Is it capable of death or substantial bodily harm how Mr. Butler was using it on August 11th of 2024? That's for the Assault in the Second Degree. You know for the Special Verdict Form, a knife that's seven inches in length and three-inches wide is legally a deadly weapon. He had it in his hand throughout the entirety of that Assault. That's the truth. Well, that's what the State submits to you has been presented in this case. Id. at 2528 (emphasis added). IV. VERDICT & APPEAL The jury found Butler guilty of both counts of second degree assault and answered “yes” on both deadly weapon special verdicts. CP at 178, 181. The trial court sentenced Butler to 30 months in prison, a sentence below the standard range. Butler appeals. DISCUSSION I. SUFFICIENCY OF THE EVIDENCE On appeal, Butler claims that the evidence is insufficient to sustain his convictions because, “at most,” his actions were menacing and did not demonstrate an intent to cause fear and apprehension of bodily injury. Br. of Appellant at 22. In response, the State argues that, when considering Butler’s conduct “in its entirety,” a rational trier of fact could conclude that Butler acted with the requisite intent. Br of Resp’t at 11. We agree with the State. A. Legal Principles We consider sufficiency of the evidence from the viewpoint of a rational trier of fact, and the evidence is sufficient when, having viewed the evidence in the light most favorable to the State, the rational trier of fact could find guilt beyond a reasonable doubt as to each element of the 6 No. 61090-6-II offense. State v. Bergstrom, 199 Wn.2d 23, 40-41, 502 P.3d 837 (2022). In arguing that the evidence is insufficient, the defendant admits the truth of the State’s evidence and all reasonable inferences drawn from that evidence. Id. at 41. Circumstantial evidence and direct evidence are considered equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). “Appellate courts defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.” State v. Roberts, 5 Wn.3d 222, 234, 572 P.3d 1191 (2025). “When intent is an element of the crime, ‘intent to commit a crime may be inferred if the defendant's conduct and surrounding facts and circumstances plainly indicate such an intent as a matter of logical probability.’ ” State v. Vasquez, 178 Wn.2d 1, 8, 309 P.3d 318 (2013) (quoting State v. Woods, 63 Wn. App. 588, 591, 821 P.2d 1235 (1991)). B. Application Butler argues that there was insufficient evidence for the jury to infer that he acted with the intent to assault the officers. Butler suggests that “at most, the State’s evidence only showed that Mr. Butler was acting menacingly and that the officers were not in danger.” Br. of Appellant at 22. Butler argues that because his “menacing” behavior was not directed at anyone in particular and because he was too far away from the officers to illicit a reasonable fear of harm, the jury had insufficient grounds from which to conclude that he intended to create fear and apprehension of bodily injury. Specifically, Butler argues that because he was not sufficiently close to the officers to inflict physical injury, his situation was analogous to an actor pointing an unloaded firearm at a victim who knew the gun was unloaded. Butler argues that in both situations, “the victim knows no harm can come from [the weapon] at that moment.” Id. at 26. 7 No. 61090-6-II We disagree with Butler’s assertions, as there was sufficient evidence that his actions were directed at the officers. Butler was calm when the officers first arrived, but after the officers told Butler that the bar owner wanted him to leave, Butler drew a large knife, stepped toward the officers, took a fighting stance, and threatened to kill them. Butler was standing about 10 to 12 feet away from the officers and did not follow the officers’ repeated orders for him to drop the knife. Instead, he continued shouting insults and threats while backing away and ultimately fled the scene. This sequence of events establishes that Butler’s conduct was specifically directed at the officers in response to their order that he leave the premises. Butler is also incorrect in suggesting that he was too far away from the officers for the jury to conclude that he acted with intent to cause fear and apprehension of bodily injury. Although specific intent may not be inferred where someone is threatened by a person with a weapon, but they know the person poses no real threat,4 that is not the case for Butler. Where an agitated individual, who is not otherwise immobilized, is in close proximity, brandishes a large blade, threatens to kill another person and advances toward that person, it is reasonable to conclude that person was in imminent physical danger and consequently that the actor intended to illicit fear of bodily harm. Particularly when admitting the truth of the State’s evidence and drawing all reasonable inferences in favor of the State, Butler’s arguments to the contrary fail. We therefore conclude that there was sufficient evidence for a jury to infer that Butler acted with intent to cause fear and apprehension of bodily injury. 4 See, e.g., State v. Miller, 71 Wn.2d 143, 146, 426 P.2d 986 (1967) (concluding that “[a]pprehension of a person at whom a revolver is pointed may be inferred, unless he knows it to be unloaded”). 8 No. 61090-6-II II. JURY INSTRUCTION 15 Butler next argues that jury instruction 15, the deadly weapon enhancement elements instruction, omitted an essential element and, therefore, erroneously relieved the State of its burden to prove that he committed assault in the second degree while armed with a deadly weapon. Specifically, he takes issue with the omission of the “as used” language from RCW 9.94A.825. The State responds that because Butler proposed the exact instruction that became jury instruction 15, review of this claim is barred by the invited error doctrine. The State further responds that the jury instruction was not erroneous. We agree with the State that review of this claim is barred by the invited error doctrine and decline to consider it. A. Legal Principles The invited error doctrine precludes appellate review of errors that an appealing party helped create, even when the alleged error involves constitutional rights. State v. Carson, 179 Wn. App. 961, 973, 320 P.3d 185 (2014), aff’d, 184 Wn.2d 207, 357 P.3d 1064 (2015). The doctrine was, at least in part, intended to prevent parties from receiving windfalls by misleading trial courts. State v. Momah, 167 Wn.2d 140, 153, 217 P.3d 321 (2009). An error is invited only if it results from an affirmative, knowing, and voluntary act. State v. Mercado, 181 Wn. App. 624, 630, 326 P.3d 154 (2014). If a defendant proposes a jury instruction and the court gives that instruction, they may not “ ‘later complain on appeal that the requested instruction was given.’ ” State v. Studd, 137 Wn.2d 533, 546, 973 P.2d 1049 (1999) (internal quotation marks omitted) (quoting State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990)). This is true even where the instruction in question was 9 No. 61090-6-II modeled on a Washington pattern jury instruction. Id. at 546-47. The supreme court held in Henderson that “even if error was committed, of whatever kind, it was at the defendant's invitation and he is therefore precluded from claiming on appeal that it is reversible error.” 114 Wn.2d at 870 (emphasis added). In a criminal case, the burden of proving invited error lies with the State. State v. Thomas, 150 Wn.2d 821, 844, 83 P.3d 970 (2004), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (20004). B. Application The State has met its burden of proving that Butler invited any alleged error regarding jury instruction 15. The instruction that Butler proposed is identical to the instruction that was actually given, with the exception of omitting any mention of an accomplice because there was no accomplice in Butler’s case. Compare CP at 116, with CP at 170. Additionally, the jury instruction mirrors the language of WPIC 2.07.01. Butler asserts that the State’s closing argument regarding the deadly weapon special verdict was confusing and rendered this jury instruction deficient. However, if that was the case, Butler had the opportunity to object during the State’s closing argument and failed to do so. Additionally, Butler could have sought a remedy based on the instruction itself at the conclusion of the State’s closing argument, such as asking the trial court to withdraw the instruction and reinstruct the jury with the instruction he now asserts should have been given. In sum, if error occurred, it could have been corrected by the trial court prior to the submission of the case to the jury. Such is the purpose of the invited error doctrine—to prevent a party from capitalizing on an error they caused. Under Studd and Henderson, Butler may not appeal an instruction that he proposed and did not object to at trial. Studd, 137 Wn.2d at 546; Henderson, 114 Wn.2d at 870. 10 No. 61090-6-II Butler further asserts that RAP 2.5(a) justifies our review of this claim for the first time on appeal because “it omitted an essential element and relieved the State of its burden to prove all elements beyond a reasonable doubt,” thereby violating due process. Br. of Appellant at 55. However, the invited error doctrine applies to claims of constitutional error. Carson, 179 Wn. App. at 973. We therefore conclude that if any error exists with jury instruction 15, Butler invited that error and may not challenge it on appeal.5 CONCLUSION When considering the totality of Butler’s conduct, there was sufficient evidence for a rational trier of fact to conclude that Butler intended to cause fear and apprehension of bodily harm. We further conclude that Butler invited any error related to jury instruction 15 and decline to consider his challenge to this instruction. Accordingly, we affirm Butler’s convictions. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered. 5 Although we hold that Butler invited this error, we do not agree that the court erred in giving this instruction. When considering both the language of the special verdict instruction in conjunction with the State’s closing argument, it would have been evident to the jury that the State intended to, and did, argue that the knife was the only instrument at issue for the purposes of the special verdict. Accordingly, the “as used” language was unnecessary and the instruction was therefore not erroneous. 11 No. 61090-6-II CRUSER, J. We concur: VELJACIC, C.J. PRICE, J. 12