manifest error in Washington

2026To raise a manifest error affecting a constitutional right on appeal, “‘the appellant must identify a constitutional error and show how the alleged error actually affected the [appellant]’s rights.’” State v. Gordon, 172 Wn.2d 671, 676 , 260 P.3d 884 (2011) (alteration in original) (internal quotation marks omitted) (quoting State v. O’Hara, 167 Wn.2d 91, 98 , 217 P.3d 756 (2009)).

2025Even if we were to find that Gaidaichuk raises an error that is truly of constitutional dimension, he fails to show that any such error is manifest. “ʻManifest error’” is an “‘error that is plain and indisputable, and that amounts to a complete disregard of the controlling law or the credible evidence in the record.”’ O’Hara, 167 Wn.2d at 91 , 100 n.1 (quoting BLACK’S LAW DICTIONARY 622 (9th ed. 2009)).

2026To constitute a manifest error, there must be “a nearly explicit statement by the witness that the witness believed the accusing victim.” Id.

2025This requirement “is consistent with our precedent holding the manifest error exception is narrow.” Kirkman, 159 Wn.2d at 936 .

2026Harmless Error Even where a manifest error of constitutional magnitude exists under RAP 2.5(a)(3), the rule “does not help a defendant when the asserted constitutional error is harmless beyond a reasonable doubt.” Scott, 110 Wn.2d at 687 .

2025Washington courts and even decisions internally have announced differing formulations for “manifest error.” First, a manifest error is one “truly of constitutional magnitude.” State v. Scott, 110 Wn.2d 682, 688 , 757 P.2d 492 (1988).

2020Gordon, 172 Wn.2d at 676 .; State v. McFarland, 127 Wn.2d 322, 333-34 , 899 P.2d 1251 (1995). 14 No. 52482-1-II Here, Salas neither argues nor shows that the alleged error was a manifest error.

2020Gordon, 172 Wn.2d at 676 .; State v. McFarland, 127 Wn.2d 322, 333-34 , 899 P.2d 1251 (1995). 14 No. 52482-1-II Here, Salas neither argues nor shows that the alleged error was a manifest error.

2019E.g., State v. Robinson, 171 Wn.2d 292, 304 , 253 P.3d 84 (2011)("The general rule in Washington is that a party's failure to raise an issue at trial waives the issue on appeal unless the party can show the presence of a '"manifest error affecting a constitutional right.'"" (quoting State v. Kirwin, 165 Wn.2d 818, 823 , 203 P.3d 1044 (2009)(quoting State v. McFarland, 127 Wn.2d 322, 333 , 899 P.2d 1251 (1995)))); State v. McNeal, 145 Wn.2d 352, 361-62 , 37 P.3d 280 (2002)("it cannot be said that the apparent inconsistency ofthe verdicts is a manifest error affecting a constitutional right . .

2018See State v. Robinson , 171 Wash.2d 292 , 304, 253 P.3d 84 (2011) (explaining that the general rule is that a failure to raise an issue before the trial court constitutes a waiver, unless the party can show a manifest error affecting a constitutional right); see also RAP 2.5(a).

2025“Manifest error” is an “‘error that is plain and indisputable, and that amounts to a complete disregard of the controlling law or the credible evidence in the record.’” Id. at 100 n.1 (quoting BLACK’S LAW DICTIONARY 622 (9th ed. 2009)).

2023Under RAP 2.5(a), we “may refuse to review any claim of error which was not raised in the trial court.” A party may raise a claimed error for the first time on appeal if it is a manifest error affecting a constitutional right, RAP 2.5(a)(3), but the error must be “truly of constitutional dimension.” State v. Kirkman, 159 Wn.2d 918, 926 , 155 P.3d 125 (2007).

2026To raise a manifest error affecting a constitutional right on appeal, “‘the appellant must identify a constitutional error and show how the alleged error actually affected the [appellant]’s rights.’” State v. Gordon, 172 Wn.2d 671, 676 , 260 P.3d 884 (2011) (alteration in original) (internal quotation marks omitted) (quoting State v. O’Hara, 167 Wn.2d 91, 98 , 217 P.3d 756 (2009)).

2025See State v. J.W.M., 1 Wn.3d 58 , 90, 524 P.3d 596 (2023) (concluding that a juvenile offender’s argument that the State violated his due process rights by failing to provide him with pretrial notice of the factual basis and aggravating factors supporting his manifest injustice sentence was not preserved and did not constitute a manifest error affecting a constitutional right). “ʻTo meet RAP 2.5(a) and raise an error for the first time on appeal, an appellant must demonstrate (1) the error is manifest and (2) the error is truly of constitutional dimension.’” J.W.M., 1 Wn.3d at 90 (quoting Stat

2021A manifest error is “‘unmistakable, evident or indisputable.’” State v. Burke, 163 Wn.2d 204, 224 , 181 P.3d 1 (2008) (quoting State v. Lynn, 67 Wn.

2021A manifest error is “‘unmistakable, evident or indisputable.’” State v. Burke, 163 Wn.2d 204, 224 , 181 P.3d 1 (2008) (quoting State v. Lynn, 67 Wn.

2019E.g., State v. Robinson, 171 Wn.2d 292, 304 , 253 P.3d 84 (2011)("The general rule in Washington is that a party's failure to raise an issue at trial waives the issue on appeal unless the party can show the presence of a '"manifest error affecting a constitutional right.'"" (quoting State v. Kirwin, 165 Wn.2d 818, 823 , 203 P.3d 1044 (2009)(quoting State v. McFarland, 127 Wn.2d 322, 333 , 899 P.2d 1251 (1995)))); State v. McNeal, 145 Wn.2d 352, 361-62 , 37 P.3d 280 (2002)("it cannot be said that the apparent inconsistency ofthe verdicts is a manifest error affecting a constitutional right . .

2018See State v. Robinson , 171 Wash.2d 292 , 304, 253 P.3d 84 (2011) (explaining that the general rule is that a failure to raise an issue before the trial court constitutes a waiver, unless the party can show a manifest error affecting a constitutional right); see also RAP 2.5(a).

2020Under RAP 2.5(a)(3), a defendant may claim a manifest error affecting a constitutional right for the first time on appeal. “[A] claim that a guilty plea pursuant to a plea agreement was involuntary due to a misunderstanding about the standard range sentence is the kind of constitutional error that RAP 2.5(a)(3) encompasses.” State v. Walsh, 143 Wn.2d 1, 8 , 17 P.3d 591 (2001).

2016Appellate courts generally will not consider issues raised for the first time on appeal.23 However, RAP 2.5(a)(3) allows a party to raise for the first time on appeal a manifest error affecting a constitutional right.24 "Manifest" requires a showing of actual prejudice.25 The party raising the issue must make a plausible showing that the asserted error had practical and identifiable consequences in the trial of the case.26 Lay witnesses may give opinions or inferences based upon rational perceptions that help the jury understand the witness's testimony and that are not based upon scientific or

2020Under RAP 2.5(a)(3), a defendant may claim a manifest error affecting a constitutional right for the first time on appeal. “[A] claim that a guilty plea pursuant to a plea agreement was involuntary due to a misunderstanding about the standard range sentence is the kind of constitutional error that RAP 2.5(a)(3) encompasses.” State v. Walsh, 143 Wn.2d 1, 8 , 17 P.3d 591 (2001).

2016Appellate courts generally will not consider issues raised for the first time on appeal.23 However, RAP 2.5(a)(3) allows a party to raise for the first time on appeal a manifest error affecting a constitutional right.24 "Manifest" requires a showing of actual prejudice.25 The party raising the issue must make a plausible showing that the asserted error had practical and identifiable consequences in the trial of the case.26 Lay witnesses may give opinions or inferences based upon rational perceptions that help the jury understand the witness's testimony and that are not based upon scientific or

2018In order to claim a manifest error affecting a constitutional right, the party "must Identify the constitutional error and show that it actually affected his or her rights at trial." This requires the party to "make a plausible showing that the error resulted in actual prejudice, which means that the claimed error had practical and identifiable consequences in the trial."80 "If the facts necessary to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and the error is not manifest."' After the jury was seated, the trial court instructed it that "Ninth you

2018In order to claim a manifest error affecting a constitutional right, the party "must Identify the constitutional error and show that it actually affected his or her rights at trial." This requires the party to "make a plausible showing that the error resulted in actual prejudice, which means that the claimed error had practical and identifiable consequences in the trial."80 "If the facts necessary to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and the error is not manifest."' After the jury was seated, the trial court instructed it that "Ninth you

2008See McDonald, 138 Wash.2d at 691 , 981 P.2d 443 .

2008See McDonald, 138 Wn.2d at 691 .

2019E.g., State v. Robinson, 171 Wn.2d 292, 304 , 253 P.3d 84 (2011)("The general rule in Washington is that a party's failure to raise an issue at trial waives the issue on appeal unless the party can show the presence of a '"manifest error affecting a constitutional right.'"" (quoting State v. Kirwin, 165 Wn.2d 818, 823 , 203 P.3d 1044 (2009)(quoting State v. McFarland, 127 Wn.2d 322, 333 , 899 P.2d 1251 (1995)))); State v. McNeal, 145 Wn.2d 352, 361-62 , 37 P.3d 280 (2002)("it cannot be said that the apparent inconsistency ofthe verdicts is a manifest error affecting a constitutional right . .

2016See State v. McNeal, 145 Wn.2d 352, 355 , 37 P.3d 280 (2002) (concluding that because the alleged inconsistency in the jury verdict was not a manifest error affecting a constitutional right, it could not be raised for the first time on appeal).

2026To raise a manifest error affecting a constitutional right on appeal, “‘the appellant must identify a constitutional error and show how the alleged error actually affected the [appellant]’s rights.’” State v. Gordon, 172 Wn.2d 671, 676 , 260 P.3d 884 (2011) (alteration in original) (internal quotation marks omitted) (quoting State v. O’Hara, 167 Wn.2d 91, 98 , 217 P.3d 756 (2009)).

2026To raise a manifest error affecting a constitutional right on appeal, “‘the appellant must identify a constitutional error and show how the alleged error actually affected the [appellant]’s rights.’” State v. Gordon, 172 Wn.2d 671, 676 , 260 P.3d 884 (2011) (alteration in original) (internal quotation marks omitted) (quoting State v. O’Hara, 167 Wn.2d 91, 98 , 217 P.3d 756 (2009)).

2020RAP 2.5(a)(3). 3 52852-5-II To show a manifest error affecting a constitutional right under RAP 2.5(a)(3), we utilize a two-part test: “‘(1) [h]as the party claiming error shown the error is truly of a constitutional magnitude, and if so, (2) has the party demonstrated that the error is manifest?’” State v. Grott, 195 Wn.2d 256, 267 , 458 P.3d 750 (2020) (quoting State v. Kalebaugh, 183 Wn.2d 578, 583 , 355 P.3d 253 (2015)).

2020RAP 2.5(a)(3). 3 52852-5-II To show a manifest error affecting a constitutional right under RAP 2.5(a)(3), we utilize a two-part test: “‘(1) [h]as the party claiming error shown the error is truly of a constitutional magnitude, and if so, (2) has the party demonstrated that the error is manifest?’” State v. Grott, 195 Wn.2d 256, 267 , 458 P.3d 750 (2020) (quoting State v. Kalebaugh, 183 Wn.2d 578, 583 , 355 P.3d 253 (2015)).

2020Generally, this court will not consider issues raised for the first time on appeal. 1 But, a party may raise an error for the first time on appeal if it concerns a manifest error affecting a constitutional right. 2 “The defendant has the initial burden of showing that (1) the error was ‘truly of constitutional dimension’ and (2) the error was ‘manifest.’” 3 “A defendant cannot simply assert that an error occurred at trial and label the error ‘constitutional.’” 4 “The defendant must identify a constitutional error and show how, in the context of the trial, the alleged error actually affected th

2013For the first time in his reply brief in this court, Kohlwes asks us to 6 Kohlwes does not challenge the court's conclusion stating, "Upon contacting the Defendant, Deputy Phillips developed the reasonable suspicion that the Defendant was driving under the influence of a controlled substance." CP 101. -6- 68422-1-1/7 review the search warrant issue as a manifest error affecting a constitutional right under RAP 2.5(a)(3).7 To benefit from RAP 2.5(a)'s manifest constitutional error exception, "[t]he defendant has the initial burden of showing that (1) the error was 'truly of constitutional dimen

2020RAP 2.5(a)(3). 3 52852-5-II To show a manifest error affecting a constitutional right under RAP 2.5(a)(3), we utilize a two-part test: “‘(1) [h]as the party claiming error shown the error is truly of a constitutional magnitude, and if so, (2) has the party demonstrated that the error is manifest?’” State v. Grott, 195 Wn.2d 256, 267 , 458 P.3d 750 (2020) (quoting State v. Kalebaugh, 183 Wn.2d 578, 583 , 355 P.3d 253 (2015)).

2020RAP 2.5(a)(3). 3 52852-5-II To show a manifest error affecting a constitutional right under RAP 2.5(a)(3), we utilize a two-part test: “‘(1) [h]as the party claiming error shown the error is truly of a constitutional magnitude, and if so, (2) has the party demonstrated that the error is manifest?’” State v. Grott, 195 Wn.2d 256, 267 , 458 P.3d 750 (2020) (quoting State v. Kalebaugh, 183 Wn.2d 578, 583 , 355 P.3d 253 (2015)).

2019E.g., State v. Robinson, 171 Wn.2d 292, 304 , 253 P.3d 84 (2011)("The general rule in Washington is that a party's failure to raise an issue at trial waives the issue on appeal unless the party can show the presence of a '"manifest error affecting a constitutional right.'"" (quoting State v. Kirwin, 165 Wn.2d 818, 823 , 203 P.3d 1044 (2009)(quoting State v. McFarland, 127 Wn.2d 322, 333 , 899 P.2d 1251 (1995)))); State v. McNeal, 145 Wn.2d 352, 361-62 , 37 P.3d 280 (2002)("it cannot be said that the apparent inconsistency ofthe verdicts is a manifest error affecting a constitutional right . .

2016See State v. McNeal, 145 Wn.2d 352, 355 , 37 P.3d 280 (2002) (concluding that because the alleged inconsistency in the jury verdict was not a manifest error affecting a constitutional right, it could not be raised for the first time on appeal).

2015Sublett, 176 Wn.2d at 77; RAP 2.5(a)(3).

2015Id. at 36-37 .

2015State v. Kronich, 160 Wn.2d 893 , 899 -901, 161 P. 3d 982 ( 2007), overruled on other grounds by State v. Jasper, 174 Wn.2d 96 , 271 P. 3d 876 ( 2012); RAP 2. 5( a)( 3). 7 45115 -8 -II The Sixth and Fourteenth Amendments to the United States Constitution guarantee an accused person the right to confront adverse witnesses.

2014State v. Kronich, 160 Wn.2d 893 , 899 -01, 161 P. 3d 982 ( 2007), overruled on other grounds; State v. Jasper, 174 Wn.2d 96, 116 , 271 P. 3d 876 ( 2012).

2015State v. Kronich, 160 Wn.2d 893 , 899 -901, 161 P. 3d 982 ( 2007), overruled on other grounds by State v. Jasper, 174 Wn.2d 96 , 271 P. 3d 876 ( 2012); RAP 2. 5( a)( 3). 7 45115 -8 -II The Sixth and Fourteenth Amendments to the United States Constitution guarantee an accused person the right to confront adverse witnesses.

2014State v. Kronich, 160 Wn.2d 893 , 899 -01, 161 P. 3d 982 ( 2007), overruled on other grounds; State v. Jasper, 174 Wn.2d 96, 116 , 271 P. 3d 876 ( 2012).