State Of Washington v. Abdoul H. Kafando ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
June 18, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 51268-8-II
Respondent, UNPUBLISHED OPINION
v.
ABDOUL H. KAFANDO,
Appellant.
GLASGOW, J. — Abdoul Kafando was convicted of second degree assault for stabbing his
brother-in-law, Alto Powell, in the abdomen. Kafando appeals from his conviction, contending
that the State failed to present sufficient evidence that he did not act in self-defense when
stabbing Powell, the trial court misstated the law in response to a jury question, and his defense
counsel was ineffective for agreeing to the trial court’s answer in response to the jury question.
Kafando also appeals from his sentence, asserting that we should remand for the trial
court to strike a criminal filing fee and an interest accrual provision in his judgment and sentence
in light of recent statutory amendments to the legal financial obligation statutes.
We affirm Kafando’s conviction but remand solely for the trial court to strike the
criminal filing fee and to correct the interest accrual provision in his judgment and sentence.
No. 51268-8-II
FACTS
Kafando and his wife, Yasha Bolton, were involved in a dispute at their apartment.
Bolton’s three teenage daughters and two of Bolton’s friends were at the home during the
dispute. After Kafando began yelling at one of Bolton’s friends, Bolton led Kafando to their
bedroom to try to diffuse the situation. While in the bedroom, Bolton put her hand on Kafando’s
chest. Kafando grabbed Bolton’s hand, pulled it behind her back, and repeatedly pushed her
against a wall. Bolton’s daughters tried to enter the bedroom while yelling at Kafando to get his
hands off of their mom. Kafando eventually left the bedroom and stormed out of the apartment.
Bolton’s brother, Powell, came to Bolton’s apartment the next day. While Bolton was
telling Powell about what transpired the previous day, Kafando knocked on the door. Powell
opened the door and confronted Kafando. Powell asked Kafando if he put his hands on his sister
and said, “[p]ut your hands on me like you did my sister.” Report of Proceedings (RP) at 301.
Kafando and Powell began to fight. Powell stated that during the fight, he punched Kafando in
the face and wrestled him to the ground.
The next day, Bolton obtained a temporary protection order prohibiting Kafando from
contacting her or coming to the apartment. Bolton decided that she wanted to end her
relationship with Kafando and removed his name from their joint accounts. She did not notify
Kafando of the protection order.
The following day, Kafando communicated with Bolton by text message. Kafando was
upset that Bolton removed his name from their joint accounts and told her that he was coming to
the apartment. Bolton was at work, and she told Kafando not to come to the apartment until she
was at home later that week. Kafando insisted.
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No. 51268-8-II
Soon after, Bolton’s daughters called Bolton at work and told her that Kafando was at the
apartment building. Bolton called the police out of concern for her daughters’ safety. Bolton
also called Powell and asked him to go to the apartment to serve Kafando with the protection
order.
Powell drove to the apartment with his girlfriend, Alexa Rodriguez, and saw Kafando
moving boxes to his car. As Powell approached Kafando with the protection order, Rodriguez
sat in the car and video recorded the interaction with her cell phone. The video was played for
the jury at trial.
As Powell approached Kafando, he said, “I’m over the other day. I’m not trying to fight
with you. I just want you to get your stuff and leave. You’re scaring my nieces.” RP at 275.
Powell handed Kafando the protection order, and Kafando became angry and started cursing at
Powell. As Powell walked back to his car, Kafando started calling him names and said that he
would beat him up. Powell walked back toward Kafando and asked him what he was talking
about. Kafando then lunged at Powell and stabbed him in the abdomen with a knife.
Powell stumbled backwards and grabbed his abdomen. Kafando told Powell that he
would kill him. Powell got in the car, and as Rodriguez began driving away, Kafando jabbed the
knife in the open driver’s side window.
Rodriguez drove Powell to the hospital. A surgeon treated Powell’s stab wound and
closed it with staples; the injury did not cause damage to any of Powell’s vital organs.
Tacoma Police Officer Thomas Perry went to the apartment complex to serve Kafando
with the protection order shortly after Bolton called police. As Perry approached the area,
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No. 51268-8-II
Kafando flagged him down. Kafando told Perry that he was being followed. Another vehicle
arrived shortly thereafter, and one of the occupants told Perry that Kafando had stabbed Powell.
Kafando told Perry that Powell had handed him a protection order and told him to leave
the area. Kafando said that Powell ran at him and threatened to beat him up as he was packing
his belongings. Kafando said that he stabbed Powell in the stomach because he feared that
Powell would beat him up.
The State charged Kafando by amended information with first degree assault and, in the
alternative, second degree assault. The matter proceeded to a jury trial where witnesses testified
to the facts as stated above.
The trial court provided a self-defense jury instruction that stated:
Instruction No. 17
It is a defense to a charge of Assault that the force used was lawful as
defined in this instruction.
The use of force upon or toward the person of another is lawful when used
by a person who reasonably believes that he or she is about to be injured in
preventing or attempting to prevent an offense against the person, and when the
force is not more than is necessary.
The person using the force may employ such force and means as a
reasonably prudent person would use under the same or similar conditions as they
appeared to the person, taking into consideration all of the facts and circumstances
known to the person at the time of and prior to the incident.
The State has the burden of proving beyond a reasonable doubt that the force
used by the defendant was not lawful. If you find that the State has not proved the
absence of this defense beyond a reasonable doubt, it will be your duty to return a
verdict of not guilty as to this charge.
Clerk’s Papers (CP) at 78.
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No. 51268-8-II
During its deliberations, the jury submitted a question asking, “[d]o we have to be 100%
in agreement to say that it was or was not self defense (i.e. Instruction 17)?” CP at 88. After
discussing the jury’s question with the parties, the parties and the trial court agreed to answer the
question, “yes.” RP at 433-37; CP at 88.
The jury returned verdicts finding Kafando not guilty of first degree assault and guilty of
second degree assault. The jury also returned special verdicts finding that Kafando and Powell
were members of the same family or household and that Kafando was armed with a deadly
weapon during his commission of second degree assault.
At sentencing, the trial court imposed legal financial obligations, including a then-
mandatory $200 criminal filing fee. Kafando’s judgment and sentence includes a provision
stating that “[t]he financial obligations imposed in this judgment shall bear interest from the date
of the judgment until payment in full.” CP at 189. Kafando appeals from his second degree
assault conviction and sentence.
ANALYSIS
I. SUFFICIENCY OF THE EVIDENCE
Kafando contends that the State failed to present sufficient evidence to support his second
degree assault conviction. Specifically, Kafando asserts that the State failed to present sufficient
evidence to prove that he did not act in self-defense when stabbing Powell. We disagree.
Evidence is sufficient to support a conviction if it permits any reasonable trier of fact to
find the essential elements of the crime beyond a reasonable doubt when viewed in the light most
favorable to the State. State v. Condon, 182 Wash. 2d 307, 314, 343 P.3d 357 (2015). When
evaluating sufficiency of the evidence, we assume the State’s evidence is true and adopt
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No. 51268-8-II
reasonable inferences that a trier of fact could draw from that evidence. Id. Circumstantial
evidence is no less reliable than direct evidence in this context. State v. Ozuna, 184 Wash. 2d 238,
248, 359 P.3d 739 (2015). We “defer to the trier of fact on issues of conflicting testimony,
credibility of witnesses, and the persuasiveness of the evidence.” State v. Thomas, 150 Wash. 2d
821, 874-75, 83 P.3d 970 (2004).
A person acts in self-defense when they reasonably believe they are about to be injured
and use no more force than necessary “to prevent an offense against [their] person.” RCW
9A.16.020(3); State v. Kyllo, 166 Wash. 2d 856, 863, 215 P.3d 177 (2009). A jury evaluates
evidence of self-defense both subjectively and objectively. State v. Walden, 131 Wash. 2d 469,
474, 932 P.2d 1237 (1997). The subjective portion requires the jury to consider the apparent
threat from the defendant’s point of view. Walden, 131 Wash. 2d at 474. The objective portion
requires the jury to consider what a reasonably prudent person would have done in the
defendant’s situation. Walden, 131 Wash. 2d at 474. “Accordingly, the degree of force used in
self-defense is limited to what a reasonably prudent person would find necessary under the
conditions as they appeared to the defendant.” Walden, 131 Wash. 2d at 474.
Where, as here, a defendant offers some evidence tending to demonstrate self-defense,
the State has the burden to prove beyond a reasonable doubt the absence of self-defense. State v.
Jordan, 180 Wash. 2d 456, 465, 325 P.3d 181 (2014). We hold that the State presented sufficient
evidence to meet its burden.
Powell testified that he approached Kafando carrying only the protection order. Powell
told Kafando that he was over their previous fight and did not want to fight with him again.
Powell handed Kafando the protection order and began walking back toward his vehicle.
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No. 51268-8-II
Kafando became angry, started cursing, and told Powell that he would beat him up. When
Powell turned and asked Kafando what he had said, Kafando lunged at him with a knife and
stabbed him in the abdomen. A video of the incident shows Powell standing in a carport with his
hands at his sides immediately before Kafando lunged and stabbed him.
Viewing this evidence in a light most favorable to the State, a jury could find that a
reasonably prudent person in Kafando’s situation would not have perceived Powell as posing an
imminent threat of injury. Alternatively, a jury could find from this same evidence that stabbing
Powell in the abdomen was more force than was necessary to prevent any imminent injury that
Kafando may have anticipated. Accordingly, we hold that the State presented sufficient
evidence to prove Kafando did not act in self-defense when he stabbed Powell.
II. RESPONSE TO JURY QUESTION
Next, Kafando contends that the trial court misstated the law when it answered “yes” to
the deliberating jury’s question: “Do we have to be 100% in agreement to say that it was or was
not self defense (i.e. Instruction 17)?” CP at 88. In the alternative, Kafando contends that his
defense counsel was ineffective for agreeing that “yes” was the appropriate answer to the jury
question. On both contentions, we disagree.
A. Misstatement of Law
“Jury instructions are sufficient if they are supported by substantial evidence, [they]
allow the parties to argue their theories of the case, and when read as a whole [they] properly
inform the jury of the applicable law.” State v. Clausing, 147 Wash. 2d 620, 626, 56 P.3d 550
(2002). A trial court has discretion to provide further instruction to the jury after it has begun its
deliberations. State v. Sublett, 156 Wash. App. 160, 183, 231 P.3d 231 (2010), aff’d, 176 Wash. 2d
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58 (2012). But where, as here, a defendant claims the trial court misstated the law in response to
a deliberating jury’s question, we review the trial court’s response de novo, “in the context of the
instructions as a whole.” Id. (internal quotations omitted). Self-defense instructions, read as a
whole, must make the relevant legal standard manifestly apparent to the average juror. State v.
Sullivan, 196 Wash. App. 277, 291-92, 383 P.3d 574 (2016).
Kafando argues that the trial court’s response to the jury’s question misstated the law
because it suggested that he had the burden to prove self-defense. We disagree.
As an initial matter, the State asserts that the invited error doctrine prevents Kafando
from raising this claim on appeal because he agreed to the trial court’s response to the jury’s
question. Because we conclude that the trial court’s response to the jury question did not
misstate the law, we do not address whether Kafando’s agreement to the response constituted
invited error.
Here, the jury question asking whether it had to be 100 percent in agreement as to
whether Kafando did or did not act in self-defense explicitly referenced instruction 17. That
instruction clearly and unambiguously provided that the State had the burden of proving the
absence of self-defense beyond a reasonable doubt. The instruction also stated that the jury was
required to find Kafando not guilty of the assault charges if it determined that the State did not
meet this burden. The jury’s question did not express any confusion with regard to this clear and
unambiguous directive regarding the State’s burden. Rather, the jury question merely requested
clarification as to whether it had to be unanimous in finding whether the State had or had not met
its burden of proving the absence of self-defense beyond a reasonable doubt.
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No. 51268-8-II
The trial court’s answer “yes” to the question of whether the jury had to be unanimous in
its finding on self-defense, an essential element of the charged crime, was a correct statement of
law. See, e.g., State v. Strange, 188 Wash. App. 679, 691, 354 P.3d 917 (2015) (“Under the
Washington and United States Constitutions, a criminal defendant is entitled to a unanimous jury
verdict rendered by an impartial jury.”). Accordingly, we hold that the trial court did not
misstate the law when responding to the jury question.
B. Ineffective Assistance of Counsel
Next, Kafando contends in the alternative that his defense counsel was ineffective for
failing to object to the trial court’s response to the jury question. We disagree.
To demonstrate ineffective assistance of counsel, Kafando must show both that defense
counsel performed deficiently and that the deficient performance resulted in prejudice. State v.
Linville, 191 Wash. 2d 513, 524, 423 P.3d 842 (2018). Because the trial court did not misstate the
law in response to the jury question for the reasons explained above, Kafando cannot make either
showing. Accordingly, his ineffective assistance of counsel claim fails, and we affirm his
conviction of second degree assault.
III. LEGAL FINANCIAL OBLIGATIONS
Finally, Kafando challenges the imposition of a $200 criminal filing fee in light of recent
amendments to the legal financial obligation statutes. He also challenges the inclusion of
language on his judgment and sentence stating, “[t]he financial obligations imposed in this
judgment shall bear interest from the date of the judgment until payment in full.” CP at 189.
The State concedes that Kafando is indigent and that remand is required for the trial court to
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No. 51268-8-II
strike the criminal filing fee and to eliminate language stating that interest will accrue on
Kafando’s nonrestitution legal financial obligations. We accept the State’s concession.
RCW 36.18.020(h) now prohibits trial courts from imposing criminal filing fees on
indigent defendants, and RCW 10.82.090(1) prohibits interest from accruing on nonrestitution
legal financial obligations. LAWS OF 2018, ch. 269. These statutes apply prospectively to cases
that are on appeal. State v. Ramirez, 191 Wash. 2d 732, 747, 426 P.3d 714 (2018).
We remand to the trial court to strike the criminal filing fee and to correct Kafando’s
judgment and sentence to eliminate language stating that interest will accrue on nonrestitution
legal financial obligations.
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.
Glasgow, J.
We concur:
Worswick, P.J.
Cruser, J.
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