* State of Washington v. Gary Brandon Ault

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
GARY BRANDON AULT,
Appellant.
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No. 40421-8-III
PUBLISHED OPINION
LAWRENCE -B ERREY , C.J. — Gary Ault murdered Richard Purdy. The State
charged Ault with aggravated first degree murder, in addition to two other felony
charges. The aggravator instruction included the Washington Pattern Jury Instructions:
Criminal (WPIC) phrase that asked the jury whether the premeditated murder happened
“in the course of, or in furtherance of, or in immediate flight from” a burglary. The
instruction omitted the WPIC sentence that informed the jury that the burglary needed to
begin before the murder. Ault argues that this omission relieved the State of its burden to
prove all the elements of the aggravator and that his counsel was ineffective for failing to
object to the instruction.
FILED
MARCH 3, 2026
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
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No. 40421-8-III
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2
We conclude that the omitted sentence is not an additional element to prove the
aggravator. Instead, it clarifies the phrase, “in the course of, in furtherance of, or in
immediate flight from.” And because a failure to clarify an element is not constitutional
instructional error, we conclude that defense counsel’s failure to object to the instruction
waived his claim of error. We also reject Ault’s ineffective assistance of counsel claim
because he fails to establish the prejudice prong of that claim.
FACTS
Gary Ault did not know Richard Purdy, an elderly man. But sometime before 5:00
p.m. one winter’s day, Ault was inside Purdy’s home.
Just before, at around 4:30 p.m., Purdy left a friend’s home to get ready for a 5:30
dinner at Terry LaVigne’s home. Purdy lived 15 minutes away from his friend’s home,
so Purdy likely arrived at his home around 4:45.
Purdy never arrived for 5:30 dinner at LaVigne’s home. Around 5:45, LaVigne
called Purdy several times, but he did not answer. At 6:15, LaVigne went to Purdy’s
house to check on her friend. LaVigne used Purdy’s hidden key to enter the house.
LaVigne saw several guns lined up in the hallway. When she entered Purdy’s office, she
saw Purdy’s body on the floor and called 911.
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No. 40421-8-III
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Law enforcement arrived and looked over the crime scene. Purdy’s front window
was broken and a damaged window screen was found in the snow near the house.
Although blood was found both outside and inside the house, the body’s location in the
office and the significant amount of blood spatter and pooling in that room suggests that
the fatal attack occurred in the office.
A desk drawer in the office contained an empty knife sheath. Purdy’s body had 27
stab wounds, including fatal wounds to his spleen, liver, and one lung. An initial search
of Purdy’s house did not find a bloody knife. But as the deputies processed the crime
scene, the snow began to melt outside, revealing the hilt of a knife protruding from a
snowbank near Purdy’s backdoor. Blood was on the knife’s blade. DNA testing showed
that Purdy’s blood was on the knife’s blade and that Purdy’s and Ault’s DNA were on the
knife’s hilt. The State charged Ault with three felonies, including aggravated first degree
murder.
Procedure
The parties presented their evidence to the jury. The court instructed the jury that
to convict Ault of first degree murder, it must unanimously find beyond a reasonable
doubt that Ault acted with the intent to cause Purdy’s death, that the intent to cause the
death was premeditated, and that Purdy died as a result of the defendant’s acts. With
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No. 40421-8-III
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respect to the aggravating circumstance of first degree murder, the court instructed the
jury:
For purposes of a special verdict in Count 1, the State must prove
beyond a reasonable doubt that the defendant committed the murder in the
course of, or in furtherance of, or in immediate flight from the crime of
First Degree Burglary and/or Residential Burglary.
A person commits the crime of residential burglary when he or she
enters or remains unlawfully in a dwelling with intent to commit a crime
against a person or property therein.
Dwelling means any building or structure that is used or ordinarily
used by a person for lodging.
Clerk’s Papers at 111. The court also instructed the jury that it must be unanimous as to
the aggravating circumstance to answer the special verdict form. Defense counsel did not
object to any of the court’s instructions.
The jury convicted Ault of all three counts and found the presence of the
aggravating circumstance. Consistent with the jury’s verdict, the trial court sentenced
Ault to a mandatory life term without the possibility of parole.
Ault timely appealed.
ANALYSIS
I NSTRUCTIONAL ERROR CLAIM
Ault argues his right to due process was violated because the aggravating
instruction omitted an essential element—that the burglary began before the murder. The
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No. 40421-8-III
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State responds that the instruction given, fairly construed, informed the jury that it had to
find that the burglary began before the murder. The State argues that the instruction’s
failure to clarify the sequential requirement is not a constitutional error and we should
decline to address the unpreserved claim of error. We agree with the State.
We begin our analysis by recognizing several governing principles. Due process
requires the State to prove every fact necessary to constitute the charged crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d
560 (1979). Consistent with this principle, “[j]ury instructions . . . ‘must convey to the
jury that the State bears the burden of proving every essential element of a criminal
offense beyond a reasonable doubt.’” 	State v. Porter, 186 Wn.2d 85, 93, 375 P.3d
664 (2016) (quoting State v. Bennett, 161 Wn.2d 303, 307, 165 P.3d 1241 (2007)).
“RCW 10.95.020 aggravating circumstances are elements for Sixth Amendment purposes
because they are not limited to proof of a prior conviction and, by law, they increase the
minimum penalty for first degree murder.” State v. Allen, 192 Wn.2d 526, 539, 431 P.3d
117 (2018). “Instructions satisfy the requirement of a fair trial when, taken as a whole,
they properly inform the jury of the applicable law, are not misleading, and permit the
defendant to argue [their] theory of the case.” State v. Tili, 139 Wn.2d 107, 126, 985
P.2d 365 (1999).
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No. 40421-8-III
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Before applying these general principles, we first consider the State’s argument
that Ault’s failure to object to the aggravator instruction waived his claim of error relating
to that instruction. Failure to object at trial to a jury instruction generally precludes
appellate review of that instruction. State v. Cardenas-Flores, 189 Wn.2d 243, 267, 401
P.3d 19 (2017). An exception to this rule allows review of instructional errors of
constitutional magnitude. Id. Yet, the failure to define nontechnical terms in an
instruction is not an instructional error. In re Det. of Pouncy, 168 Wn.2d 382, 390, 229
P.3d 678 (2010). Thus, to determine whether Ault’s claim of error is an instructional
error of constitutional magnitude, we must examine if the instruction omitted an
aggravator element or if it merely failed to define nontechnical terms.
We now examine the aggravator elements for first degree murder. “A person is
guilty of aggravated first degree murder, a class A felony, if he or she commits first
degree murder . . . and . . . [t]he murder was committed in the course of, in furtherance of,
or in immediate flight from . . . [b]urglary in the first or second degree or residential
burglary.” RCW 10.95.020(11)(c). “A person is guilty of aggravated first degree
murder if the murder was committed ‘in the course of’ an enumerated felony,
RCW 10.95.020(11), not if the enumerated felony is committed in the course of the
murder.” State v. Hacheney, 160 Wn.2d 503, 518, 158 P.3d 1152 (2007) (emphasis
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No. 40421-8-III
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omitted). “[F]or a killing to have occurred ‘in the course of’ [burglary], logic dictates
that the [burglary] must have begun before the killing.” Id.
The pattern instruction advises a jury that if it found the defendant guilty of
premeditated murder in the first degree, it must then determine if the following
aggravating circumstance exists:
[The murder was committed in the course of, in furtherance of, or in
immediate flight from [burglary in the first . . . degree] [or] [residential
burglary] . . . . [For this aggravating circumstance to exist, the State must
prove that the . . . [burglary] . . . began before the killing].
11 W ASHINGTON PRACTICE : W ASHINGTON PATTERN JURY INSTRUCTIONS : CRIMINAL
30.03, at 469 (5th ed. 2021).
As noted above, the trial court’s aggravator instruction included the first quoted
sentence but omitted the second quoted sentence. Ault argues that the omitted language
is an element of the charged aggravator. Whereas the State argues that the omitted
language merely clarifies the element “in the course of, in furtherance of, or in immediate
flight from.” We agree with the State.
State v. Brown, 132 Wn.2d 529, 940 P.2d 546 (1997), is instructive. There, the
defendant appealed his conviction for aggravated first degree murder. Id. at 539. During
jury deliberations, the jury asked the trial court for a legal definition of “in furtherance
of” and “in immediate flight.” Id. at 611. The trial court refused defense’s request for a
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No. 40421-8-III
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proposed instruction. Id. On appeal, the defendant argued the trial court committed
reversible error by not defining the terms for the jury. Id.
The Brown court explained, “Trial courts must define technical words and
expressions used in jury instructions, but need not define words and expressions that are
of ordinary understanding or self-explanatory.” Id. at 611-12. “[F]ailure to give a
definitional instruction is not failure to instruct on an essential element.” Id. at 612.
Appellant complains the phrases “in the course of,” “in furtherance of,”
“in flight from,” and “immediate flight” are technical terms in the context
of this case and the court should have instructed the jury concerning them.
A term is “technical” when it has a meaning that differs from common
usage. . . . We conclude the phrases are expressions of common
understanding to be given meaning from their common usage.
Id. at 611 (footnote omitted). The Brown court concluded, “the trial court instructed the
jury on all essential elements of the crimes charged. . . . Appellant’s claim is without
merit.” Id. at 612-13 (footnote omitted).
After Brown, the pattern instructions committee added the second sentence to the
instruction, quoted above. Notably, Brown—by concluding that the trial court instructed
the jury on all essential elements—rejected the notion that any additional language was
required in the aggravator instruction.
Per Brown, the language “in the course of, in furtherance of, or in immediate flight
from” are terms of common understanding, not technical terms. And when given their
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No. 40421-8-III
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common meaning, “logic dictates that the [burglary] must have begun before the killing.”
Hacheney, 160 Wn.2d at 518. The chronology element is logically included in the
“in the course of, in furtherance of, or in immediate flight from” language. Therefore, the
second sentence merely clarifies what the first sentence dictates.
We conclude that the second sentence is not an additional element, that there was
no constitutional instructional error, and that Ault’s failure to object to the aggravator
instruction waived this claim of error.1
I NEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Ault argues his trial counsel was ineffective by failing to object to the aggravator
instruction. We disagree.
An ineffective assistance of counsel claim requires Ault to show (1) his trial
counsel’s representation fell below an objective standard of reasonableness, and
(2) there is a reasonable probability that, except for the counsel’s unprofessional errors,
the result of the proceeding would have been different. State v. Crawford, 159 Wn.2d 86,
1 Ault argues the second sentence would be rendered superfluous unless we
construed it as adding an additional element. Reply Br. of Appellant at 2. We disagree.
Clarification of a standard instruction does not amount to an indictment of earlier
versions. State v. Holzknecht, 157 Wn. App. 754, 765, 238 P.3d 1233 (2010). Accord
11 WPIC 0.10, at 6 (The WPIC committee often updates instructions “to improve the
wording of what was already an accurate statement of the law.”).
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No. 40421-8-III
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97, 147 P.3d 1288 (2006). Ault argues, “[t]he precise circumstances and chronology of
the alleged burglary vis-à-vis the killing are simply not known.” Reply Br. of Appellant
at 6. First, Ault’s argument that one chronology is as likely as the other fails to satisfy his
burden that there is a reasonable probability the result of the trial would have been
different if his counsel had objected to the instruction.
Second, we disagree that either chronology is as likely. Here, Ault did not know
Purdy. Purdy had recently arrived at his home before the attack. Ault murdered Purdy
with Purdy’s knife. The knife’s hilt had Purdy’s and Ault’s DNA. Viewing these and
other facts in the record together, it is likely that Purdy had just returned home when Ault
broke into Purdy’s house through a window, and that Ault assaulted Purdy and directed
Purdy to open the safe in Purdy’s office. In the office, Purdy removed his knife from its
sheath and a struggle ensued during which Ault disarmed the older man and used Purdy’s
own knife to kill him. Had Ault’s original purpose been to kill a stranger, noisily
breaking a window to gain entry would not have been a good plan. Also, had Ault’s
original purpose been to kill a stranger, he would have brought and used his own weapon.
The only weapon used in the attack belonged to Purdy. Because the evidence showed
that Ault likely murdered Purdy in the course of a burglary, a clearer instruction requiring
that the burglary begin first would not have likely resulted in a different outcome.
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No. 40421-8-III
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We conclude that Ault has failed to establish the second prong of his ineffective
assistance of counsel claim.
Affirmed.
_________________________________
Lawrence-Berrey, C.J.
WE CONCUR:
______________________________ 	_________________________________
Staab, J. 	Murphy, J.
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