State Of Washington v. Donald Calvin ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON,
No. 67627-0-1
Respondent,
ORDER GRANTING
v. RESPONDENT'S MOTION
FOR RECONSIDERATION
DONALD L. CALVIN AND AMENDING OPINION
Appellant.
The respondent, State of Washington, filed a motion for reconsideration. The
appellant, Donald Calvin, has filed an answer. A panel of the court has determined that
the motion should be granted, and the published opinion filed May 28, 2013 shall be
amended. Now, therefore, it is hereby
ORDERED that the motion is granted; it is further
ORDERED that the published opinion filed May 28, 2013 be amended as follows:
DELETE the last two sentences of the first paragraph on page 1 that read:
We affirm his convictions. Because there is no evidence to support the trial
court's finding that Calvin has the ability to pay court costs and the record does
not otherwise show that the trial court considered Calvin's financial resources, we
remand for the trial court to strike the finding and the imposition of court costs.
REPLACE those sentences with the following sentence:
We affirm.
No. 67627-0-1/2
DELETE section V. Legal Financial Obligations, which begins on page 20 and
ends on page 22, in its entirety.
REPLACE that section with the following:
V. Legal Financial Obligations
The trial court ordered Calvin to pay a total of $1,300 in legal financial
obligations (LFOs), including $450 in court costs. It also entered a boilerplate
finding stating that had the ability to pay LFOs:
The court has considered the total amount owing, the defendant's past,
present and future ability to pay legal financial obligations, including the
defendant's financial resources and the likelihood that the defendant's status will
change. The court finds that the defendant has the ability or likely future ability to
pay the legal financial obligations imposed herein.
Calvin challenges the imposition of $450 in court costs, arguing that the
boilerplate finding is not supported by evidence, and that the trial court was
required to determine whether he had the ability to pay before ordering the
payment of costs. The State argues that Calvin did not preserve this issue for
review and cannot raise it for the first time on appeal. We agree with the State.
Under RCW 10.01.160(3), "[t]he court shall not order a defendant to pay
costs unless the defendant is or will be able to pay them. In determining the
amount and method of payment of costs, the court shall take account of the
financial resources of the defendant and the nature of the burden that payment of
costs will impose." Our Supreme Court has made several things clear about this
2
No. 67627-0-1/3
statute. First, the sentencing court's consideration of the defendant's ability to
pay is not constitutionally required. State v. Blank. 131 Wash. 2d 230, 241-42, 930
P.2d 1213 (1997) ("the Constitution does not require an inquiry into ability to pay
at the time of sentencing"). Accordingly, the issue raised by Calvin is not one of
constitutional magnitude that can be raised for the first time on appeal under
RAP 2.5(a).
Second, the imposition of costs under this statute is a factual matter
"within the trial court's discretion." State v. Curry. 118 Wash. 2d 911, 916, 829 P.2d
166 (1992). Failure to identify a factual dispute or to object to a discretionary
determination at sentencing waives associated errors on appeal. In re Pers.
Restraint of Goodwin. 146 Wash. 2d 861, 874-75, 50 P.3d 618 (2002); In re Pers.
Restraint of Shale. 160 Wash. 2d 489, 494-95, 158 P.3d 588 (2007). Calvin's failure
to object below thus precludes review.
Third, "[njeither the statute nor the constitution requires a sentencing court
to enter formal, specific findings" regarding a defendant's ability to pay. Curry,
118 Wash. 2d at 916. The boilerplate finding is therefore unnecessary surplusage.
If a challenge to the court's discretion were properly before us, striking the
boilerplate finding would not require reversal of the court's discretionary decision
unless the record affirmatively showed that the defendant had an inability to pay
both at present and in the future.
Finally, even if the finding were properly before us for review, we would
conclude that it is not clearly erroneous.1 Calvin testified to his high school
3
No. 67627-0-1/4
education, some technical training, and his past employment as a carpenter,
including a brief time in the union. Calvin also had retained, not appointed,
counsel at trial. These facts are sufficient to support the challenged finding under
the clearly erroneous standard.
Calvin also challenges the imposition of a $250 fine pursuant to RCW
9A.20.021. That provision, however, merely enumerates the maximum sentence
for Calvin's convictions. It does not contain a requirement that the court even
take a defendant's financial resources into account before imposing a fine, let
alone enter findings. Calvin has not articulated any basis for striking the fine.
1 We review the trial court's decision to impose discretionary financial
obligations under the clearly erroneous standard. State v. Baldwin. 63 Wash. App.
303, 312, 818 P.2d 1116, 837 P.2d 646, 837 P.2d 646 (1991). "A finding of fact
is clearly erroneous when, although there is some evidence to support it, review
of all of the evidence leads to a 'definite and firm conviction that a mistake has
been committed.'" Schrvvers v. Coulee Cmtv. Hosp.. 138 Wash. App. 648, 654,
158 P.3d 113 (2007) (quoting Wenatchee Sportsmen Ass'n v. Chelan County.
141 Wash. 2d 169, 176, 4 P.3d 123 (2000)).
DELETE the first paragraph on page 24 with reads:
We affirm Calvin's convictions and remand for the trial court to strike the
finding that Calvin has the present or future ability to pay LFOs and the
imposition of $450 in court costs.
4
No. 67627-0-1/5
REPLACE that paragraph with the following paragraph:
We affirm.
DATED this "fl^dav of UCz\x>\>-C^ 2013.
WE CONCUR:
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(NO "i-cf
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 67627-0-1
Respondent,
DIVISION ONE
v.
PUBLISHED OPINION ^ cog
DONALD L, CALVIN
Appellant. FILED: May 28, 2013
CD -="0,
trffr..-.
Appelwick, J. —After an altercation with a park ranger, Calvin was convicted^
—4r-j
assault in the third degree and resisting arrest. He argues that his convictions a§ n§t-£
supported by substantial evidence, that he was entitled to a self-defense instruction,
that he was prejudiced by prosecutorial misconduct, that the trial court erred by
correcting and replacing an instruction during jury deliberations, and that there is no
evidence to support a finding that he has the ability to pay legal financial obligations.
We affirm his convictions. Because there is no evidence to support the trial court's
finding that Calvin has the ability to pay court costs and the record does not otherwise
show that the trial court considered Calvin's financial resources, we remand for the trial
court to strike the finding and the imposition of court costs.
FACTS
In April 2010, Alexander Moularas was a park ranger at Larrabee State Park in
Bellingham. The park closes to day users half an hour after sunset. On April 10,
Ranger Moularas closed the gate at 8:30 p.m. At around 9:15 p.m., he discovered a car
idling in front of the closed gate. Ranger Moularas was driving a dark blue truck with a
white stripe across it, a park shield on the door, and a law enforcement light bar on top.
He was wearing his uniform
No. 67627-0-1/2
When he pulled up, Ranger Moularas saw Donald Calvin standing outside of his
idling vehicle. Ranger Moularas rolled his window down, shut off the ignition, and
announced himself as a ranger. Calvin was aggravated, said that he just wanted to
take a shower, and asked if Ranger Moularas was going to let him in. Ranger Moularas
informed Calvin that the facilities were closed at that point and only available to
campers. In a strained tone, Calvin asked how much it was going to cost him to get in.
Ranger Moularas responded that the price for camping was $14.
Calvin approached the park vehicle and came within two feet of the open
window. Ranger Moularas was trained not to be approached in his vehicle. He became
apprehensive because of Calvin's proximity to his window and the minimal lighting in
the area. He exited his vehicle and repeated that Calvin could enter as a camper, but
needed to leave if he had no intention of camping. Calvin asked for Ranger Moularas's
name. Ranger Moularas responded by giving his first and last name, and Calvin
shouted, "Well, at least you know your damn name." At that point, Ranger Moularas
thought Calvin might have been under the influence of intoxicants. He took out his
flashlight and pointed it at Calvin's chest. Calvin said, "Get that F-ing light out of my
face," put his hand up, and reached toward Ranger Moularas. They were standing
approximately five feet apart.
Ranger Moularas told Calvin to get back. When Calvin did not retreat, he
sprayed him with a quick burst of pepper spray. Calvin advanced such that Ranger
Moularas had to back up approximately 10 feet. He yelled at Calvin to get back and get
No. 67627-0-1/3
on the ground. When Calvin kept coming with his hands toward his face in an
aggressive posture, Ranger Moularas struck him with his baton approximately six times.
Calvin began walking away. Ranger Moularas holstered his baton and went after
Calvin to arrest him for assault. He yelled, "Police, get on the ground," grabbed Calvin's
left arm, and took him to the ground. He was able to cuff Calvin's left wrist, but Calvin
would not yield his right arm. Ranger Moularas told Calvin to quit resisting and give his
arm, but Calvin struggled for approximately a minute before Ranger Moularas could get
the second cuff on. Ranger Moularas read Calvin his rights and Whatcom County
sheriffs took him from the scene. Calvin referred to Ranger Moularas as "ranger dick."
The State charged Calvin with assault in the third degree and resisting arrest.
Calvin offered a different version of events at trial. He testified that he initially
approached Ranger Moularas's vehicle because he could not understand what he was
saying. When Ranger Moularas asked him to leave, he returned to his vehicle.
According to Calvin, only then did Ranger Moularas get out of his vehicle. He walked
over toward Calvin, who was by then sitting in his car, shined his flashlight in, and told
Calvin to get out. When Calvin got out, Ranger Moularas shined a flashlight in his eyes.
Calvin put his hands up to block the light and Ranger Moularas immediately sprayed
him with pepper spray. Calvin testified that he had no intent to harm Ranger Moularas,
and did not move toward Ranger Moularas before Ranger Moularas started to beat him.
But, Calvin acknowledged that he was angry. Calvin knew Ranger Moularas was
associated with the park, but denied knowing he was a ranger. Calvin denied resisting
arrest, but stated he rolled and twisted to avoid being hit by Ranger Moularas's baton.
No. 67627-0-1/4
The jury found Calvin guilty on both charges. He appeals.
DISCUSSION
I. Sufficiency of the Evidence
Calvin argues that neither his conviction for assault in the third degree nor his
conviction for resisting arrest is supported by sufficient evidence. Evidence is sufficient
to support a conviction if, after the evidence and all reasonable inferences from it is
viewed in the light most favorable to the State, a rational trier of fact could find each
element of the crime proven beyond a reasonable doubt. State v. Green. 94 Wash. 2d
216, 221, 616 P.2d 628 (1980).
A. Assault in the Third Degree
As instructed in this case, the elements of assault in the third degree are that (1)
Calvin committed an act with the intention of placing Ranger Moularas in apprehension
and fear of bodily injury, (2) the act in fact created a reasonable apprehension and
imminent fear of bodily injury, (3) Ranger Moularas was a law enforcement officer who
was performing his official duties, and (4) the acts occurred in the State of Washington.
Whether Calvin intended to actually inflict bodily injury is immaterial under the jury
instructions. Calvin argues that there was insufficient evidence to prove that Ranger
Moularas's fear of bodily injury was reasonable or that he intended to place Ranger
Moularas in fear of bodily injury.
1. Reasonable Apprehension and Fear
The incident occurred in a dark, isolated area. Ranger Moularas testified that
Calvin was aggravated and appeared unbalanced or under the influence. He testified
No. 67627-0-1/5
that Calvin reached his hand toward him, swore at him multiple times, and eventually
forced him to back up about 10 feet. Those facts are sufficient for a rational trier of fact
to conclude beyond a reasonable doubt that Ranger Moularas's apprehension and fear
were reasonable.
Calvin's arguments to the contrary are unavailing. He first offers other
reasonable interpretations of the evidence. For instance, he claims he has trouble
hearing and it is normal to approach someone when you are talking. He also argues he
raised his hands to his face only after Ranger Moularas aimed a flashlight at him, and
put his fists towards his face only when Ranger Moularas sprayed him with pepper
spray. But, in a sufficiency inquiry the court views the evidence in the light most
favorable to the State. Calvin's alternative interpretations are irrelevant.
Calvin next compares the State's evidence to other cases in which there was
more evidence that apprehension and fear were reasonable. In State v. Brown, a police
officer was placed in reasonable fear when the defendant spun around, unzipped his
jacket, removed a cigarette lighter that looked like a handgun, and pointed the lighter at
the officer. 140 Wash. 2d 456, 461-62, 998 P.2d 321 (2000). In State v. Godsev. a police
officer was placed in reasonable fear when the defendant approached him with fists up,
invited him to u,[c]ome on,' and took a step toward him." 131 Wash. App. 278, 288, 127
P.3d 11 (2006) (alteration in original). But, those were not sufficiency cases. The mere
fact that Calvin's actions in this case were not as overt as the defendants' acts in those
cases does not mean there was insufficient evidence here.
No. 67627-0-1/6
Finally, Calvin argues that he did not make a true threat and the use of a strained
or sarcastic tone of voice does not create a reasonable fear of assault. But, Calvin's
tone was not the only evidence that Ranger Moularas's fear was reasonable. And, the
State was not required to prove that Calvin made a true threat because that is not an
element of assault. See RCW 9A.36.031(1)(a).
2. Intent
In arguing that he did not have the requisite intent, Calvin points to his own
testimony and compares this case to another case with more egregious facts to
demonstrate that he had no intent to place Ranger Moularas in fear of bodily injury.
Neither of those tactics establishes the absence of facts sufficient to find that Calvin
intended to create a fear of bodily injury. Calvin acknowledged that he was angry when
Ranger Moularas shined the flashlight on him and conceded that he may have told
Ranger Moularas to get "that fucking flashlight out of my face." Ranger Moularas
testified that as Calvin said that, he put his hand up and moved toward him. After
Ranger Moularas sprayed Calvin with pepper spray, Calvin kept his fists up toward his
face and continued to come toward him such that he had to back up approximately 10
feet. Calvin's acknowledged anger, combined with his movement toward Ranger
Moularas, provide sufficient evidence for a rational trier of fact to find that Calvin
intended to create a fear of bodily injury.
B- Resisting Arrest
The jury was instructed that, to convict Calvin of resisting arrest, the State had to
prove that he intentionally prevented or attempted to prevent a peace officer from
No. 67627-0-1/7
lawfully arresting him. Calvin argues that he could not have committed the crime of
resisting arrest, because he did not know that Ranger Moularas was a law enforcement
officer, did not know that he was under arrest, and did not use force.
Calvin relies on State v. Bandy for the proposition that, "it is essential that [the]
accused have knowledge that the person obstructed is an officer" and "it is incumbent
on an officer, seeking to make an arrest, to disclose his official character, if not known to
the offender." 164 Wash. 216, 219, 2 P.2d 748 (1931). In Bandy, a woman was
convicted of interfering with a public officer in the performance of his duties after
interfering with the arrest of her father. Jd. at 217-19. There was insufficient evidence
to support her conviction, because there was no evidence that arresting officers
displayed badges and there was no other reason for anyone in the area to understand
that her father was being arrested. Jd. at 219-21. In contrast, in this case Ranger
Moularas was wearing his uniform and driving a marked car at the time of the incident.
When he first approached Calvin, he identified himself as a ranger. When he took
Calvin to the ground, he identified himself as "police." At trial, Calvin acknowledged that
he knew Ranger Moularas was in a marked vehicle, knew he was associated with the
park, and recognized that he was enforcing park rules. That evidence was sufficient for
a rational trier of fact to determine that Calvin knew Ranger Moularas was a law
enforcement officer.
Calvin next asserts that Ranger Moularas never said he was under arrest. He
relies on cases in which the defendants were explicitly informed they were under arrest
before they resisted. See State v. Ware. 111 Wash. App. 738, 740-41, 46 P.3d 280
No. 67627-0-1/8
(2002); State v. Simmons. 35 Wash. App. 421, 422, 667 P.2d 133 (1983). But, neither of
those cases holds that an arresting officer must formally state that a person is under
arrest for that person to be aware they are under arrest. A rational trier of fact could find
that when a law enforcement officer identified himself as "police," told Calvin to get on
the ground, and started to place handcuffs on him, Calvin knew he was under arrest.
Calvin also argues that he did not use the force necessary to be convicted of
resisting arrest, because he was merely recalcitrant. His argument is based on a single
sentence in State v. Hornadav. 105 Wash. 2d 120, 131, 713 P.2d 71 (1986). In that case,
the evidence showed that, after the defendant was arrested, he refused to voluntarily
enter the backseat of the police and had to be forcibly placed there. Id at 122.
Counsel commented at trial that the defendant swung his elbow at a police officer, but
there was no testimony that supported that assertion. Jd. at 131. Thus, the court came
to the sensible conclusion that a defendant, already detained, is merely "recalcitrant"
and does not commit resisting arrest by refusing to voluntarily enter a police car. Jd at
131. Despite Calvin's persistent argument that he did not use sufficient force to be
convicted of resisting arrest, "force" is not an element of the crime. The State bore the
burden to prove that Calvin prevented or attempted to prevent his arrest. While Calvin
was on the ground, Ranger Moularas advised him to stop resisting. Ranger Moularas
testified that he struggled with Calvin for approximately one minute before he was able
to handcuff Calvin's second hand. During that time, Ranger Moularas did not have
Calvin fully under his control.
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No. 67627-0-1/9
There was sufficient evidence to establish that Calvin knew Ranger Moularas
was a law enforcement officer, knew he was being placed under arrest, and attempted
to prevent his arrest.
II. Self-Defense Instruction
Calvin argues that defense counsel was ineffective in failing to request a self-
defense instruction. To prevail on a claim of ineffective assistance, a defendant must
show that counsel's performance fell below an objective standard of reasonableness
based on consideration of ail the circumstances, and that the deficient performance
prejudiced the trial. Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984). The reasonableness inquiry presumes effective representation.
State v. McFarland. 127 Wash. 2d 322, 336, 899 P.2d 1251 (1995). To determine whether
counsel was deficient by failing to propose a jury instruction, the court considers
whether the defendant was entitled to the instruction and whether there was a strategic
or tactical reason not to request the instruction. Jd; State v. Powell. 150 Wash. App. 139,
154-55, 206 P.3d 703 (2009).
Here, there was a clear strategic reason not to request a self-defense instruction,
and even ifone had been proposed, Calvin was not entitled to it. Calvin argued that he
did not assault Ranger Moularas and did not resist arrest. To also argue that he used
force against Ranger Moularas only in self-defense would have been completely
contradictory.
No. 67627-0-1/10
Further, Calvin did not present evidence that would have supported a self-
defense instruction. In general, reasonable force in self-defense is justified ifthere is an
appearance of imminent danger. State v. Bradley. 141 Wash. 2d 731, 737, 10 P.3d 358
(2000). But, the use of force in self-defense against an arresting law enforcement
officer is permissible only when the arrestee actually faces an imminent danger of
serious injury or death, jd at 737-38. Calvin merely asserts that "a person in Mr.
Calvin's position would have been afraid that he was facing imminent and serious bodily
harm." That argument goes to the appearance of danger, not the existence of actual
danger. Calvin has not shown that he would he have been entitled to a self-defense
instruction had one been proposed. He has not established that he received ineffective
assistance of counsel.
'"• Prosecutorial Misconduct
Prosecutorial misconduct is grounds for reversal if the prosecuting attorney's
conduct was both improper and prejudicial. State v. Monday. 171 Wash. 2d 667, 675, 257
P.3d 551 (2011). The court reviews a prosecutor's conduct in the full trial context,
including the evidence presented, the total argument, the issues in the case, the
evidence addressed in argument, and the jury instructions. ]d A prosecutor has wide
latitude in closing argument to draw reasonable inferences from the evidence and to
express such inferences to the jury. State v. Boehninq. 127 Wash. App. 511, 519, 111
P.3d 899 (2005). Absent a timely objection, reversal is required only if the conduct is so
flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could
not have been neutralized by a curative instruction to the jury. State v. Warren. 165
10
No. 67627-0-1/11
Wn.2d 17, 43, 195 P.3d 940 (2008). Calvin argues the prosecutor committed
misconduct by misstating the law, disparaging defense counsel, commenting on
Calvin's constitutional rights, and commenting on Calvin's credibility.
A. Misstating the Law
In rebuttal closing argument, the prosecutor argued:
I hate to sound too facetious but that was quite a story. You know, I think
the defense counsel here is talking to you and he is telling you that Ranger
Moularas is a fine person yet he is calling him a liar. That's what he's
doing. This is just outrageous, he's calling him a liar.
The trial court sustained defense counsel's objection and asked the prosecutor to
"alter the word." The prosecutor continued:
I understand, Your Honor. He is saying he is untruthful. He is saying that
he is not coming here and telling you the truth. He is saying that Ranger
Moularas didn't tell the truth from the beginning. Well, actually maybe told
the truth right to Deputy Osborn but after that no. For what reason?
Why? I mean, what motive would Ranger Moularas have to not tell you
the truth? To change his report about what had actually happened? Why
would he call him a fine person but also say he is not telling the truth?
That's a big problem. If he is not telling the truth that's a big problem. Big,
big, big problem. You know, that's his theory, that Ranger Moularas is just
coming in here with these terrible untruths.
Defense counsel did not object to the prosecutor's revision.
Calvin argues that the prosecutor's arguments suggested that the jury had to find
that Ranger Moularas was lying in order to acquit Calvin. Such an argument misstates
the law, the role of the jury, and the appropriate burden of proof. State v. Fleming. 83
Wash. App. 209, 213, 921 P.2d 1076 (1996).
But, the prosecutor is entitled to respond to defense counsel's arguments.
Defense counsel argued in closing that Calvin and Ranger Moularas offered different
versions of events and that the jury had to find that Ranger Moularas's version was
11
No. 67627-0-1/12
correct to find Calvin guilty. Defense counsel argued that Calvin's version of events
was corroborated by an initial statement of probable cause prepared by a responding
officer, and Ranger Moularas's version was contradicted by the statement. The
prosecutor was entitled to respond to defense counsel's argument that Ranger
Moularas was untruthful.
B. Disparaging Counsel and Commenting on Constitutional Rights
The prosecutor stated, "You know, another thing for you to consider is whether or
not to trust [defense counsel]?" The trial court sustained defense counsel's objection.
The prosecutor then advised the jury to, "consider [defense counsel's] argument and
decide if it's trustworthy." Defense counsel did not object to the prosecutor's revised
statement. The prosecutor also argued:
He is blaming the victim. He is blaming Ranger Moularas for being in a
position and then getting assaulted. Gee, if Ranger Moularas didn't
contact him nothing would have happened, right? There would be no
crime. Blaming the victim, that's not fair. Nobody wants to see that. It's
not right.
Defense counsel did not object.
Calvin argues that these statements were misconduct, because the prosecutor
disparaged defense counsel and because a complaint that defense counsel is blaming
the victim is a comment on the defendant's right to cross-examine the State's
witnesses.
It is improper for the prosecutor to disparagingly comment on defense counsel's
role or impugn the defense lawyer's integrity. State v. Thoroerson. 172 Wash. 2d 438,
451, 258 P.3d 43 (2011). Thus, in Thoroerson. it was improper for the prosecutor to
refer to the defense counsel's presentation of the case as "'bogus'" and "'sleight of
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No. 67627-0-1/13
hand." Jd at 451-52. But, defense counsel did not object and the court concluded that
a curative instruction would have alleviated any prejudicial effect of the attack on
defense counsel's strategy. Jd at 452. In Warren, it was improper for the prosecutor to
tell the jury that the "'number of recharacterizations'" in defense counsel's argument
was "'an example of what people go through in a criminal justice system when they deal
with defense attorneys."' 165 Wash. 2d at 29. But, defense counsel did not object and the
court concluded that the comments were not so flagrant and ill-intentioned that no
instruction could have cured them. Jd at 30. In State v. Negrete. the prosecutor told
the jury he had "'never heard so much speculation'" in his life, and that defense counsel
"'is being paid to twist the words of the witnesses.'" 72 Wash. App. 62, 66, 863 P.2d 137
(1993) (emphasis omitted). Defense counsel objected and the trial court sustained the
objection, but defense counsel did not request a mistrial or a curative instruction. Id. at
66. The court determined that the remark was improper, but not irreparably prejudicial.
Jd at 67. It noted that defense counsel's failure to move for a curative instruction or
mistrial strongly suggested the argument did not appear particularly prejudicial in the
context of the trial. Jdat67.
In this case, the prosecutor advised the jury to consider whether defense
counsel's argument was trustworthy and stated that defense counsel was "blaming the
victim." Those statements are not as inflammatory as the prosecutors' statements in
Thorqerson. Warren, or Negrete. Although defense counsel initially objected to one of
the statements, the objection was sustained and defense counsel did not object to the
prosecutor's altered argument. Calvin has failed to show, and the record does not
13
No. 67627-0-1/14
demonstrate, that further objection would have been futile. Thus, he must establish that
the prosecutor's comments were so flagrant and ill-intentioned that he was irreparably
prejudiced. The fact that defense counsel did not make further objections, or request a
mistrial or curative instruction, strongly suggests that the comments did not appear
unduly prejudicial in the context of trial. Calvin has failed to establish that any prejudice
could not have been eliminated by a curative instruction.
Calvin also urges that the prosecutor's comment that defense counsel was
"blaming the victim" was a comment on Calvin's rights to cross-examine the State's
witnesses, to testify on his own behalf, and to be represented by counsel. His argument
is limited to a bare assertion that his rights were violated, together with citation to the
United States Constitution and a case in which the prosecutor argued that the
defendant only represented himself because he had a strong desire to have power and
be in control. See State v. Moreno. 132 Wash. App. 663, 672, 132 P.3d 1137 (2006).
Calvin has failed to articulate how his rights were violated by the prosecutor's
comments.
C. Commenting on Calvin's Credibility
A prosecutor may not express his personal opinion of the credibility of witnesses
or the guilt or innocence of the accused. State v. Reed. 102 Wash. 2d 140, 145,684 P.2d
699 (1984). But, prosecutors are entitled to argue inferences from the evidence, and
there is no prejudicial error unless it is "'clear and unmistakable'" that counsel is
expressing a personal opinion. State v. Brett. 126 Wash. 2d 136, 175, 892 P.2d 29 (1995)
(quoting State v. Sargent. 40 Wash. App. 340, 344, 698 P.2d 598 (1985)). Thus, it was
14
No. 67627-0-1/15
not improper for the prosecutor to argue, "I would suggest that one reason you might
want to believe Pat Milosevich on that issue is that she at the time those events were
occurring was watching her husband of 33 years being blown away by a .410 shotgun."
Jd at 175. In contrast, it was improper for a prosecutor to state, "I believe Jerry Lee
Brown, I believe him." State v. Sargent. 40 Wash. App. 340, 343-44, 698 P.2d 598 (1985)
(emphasis omitted).
In this case, the prosecutor recited a long list of things that did not make sense in
Calvin's testimony when compared to other evidence and his own inconsistent
testimony. Then, the prosecutor told the jury that Calvin was "just trying to pull the wool
over your eyes." The trial court overruled defense counsel's objection. The
prosecutor's remarks more closely align with the statements in Brett than with the
statements in Sargent. In context, the comments reflect an explanation of the evidence,
not a clear and unmistakable expression of personal opinion.
IV. Law of the Case Doctrine
Pursuant to CrR 6.15, it is within the province of the trial court to instruct the jury.
Prior to giving the instructions, the parties are afforded an opportunity to object to the
giving of any instruction or the refusal to give a requested instruction. CrR 6.15(c).
Thus, any problems with jury instructions should generally be resolved before
deliberations begin. But, the trial court also has discretion to give supplemental
instructions. See, e.g.. State v. Ng. 110 Wash. 2d 32, 42, 750 P.2d 632 (1988); State v.
Frandsen. 176 Wash. 558, 563-64, 30 P.2d 371 (1934); State v. Miller. 78 Wash. 268,
275-76, 138 P. 896 (1914); State v. Frederick. 32 Wash. App. 624, 626, 648 P.2d 925
15
No. 67627-0-1/16
(1982). CrR 6.15(f) expressly contemplates that the trial court may provide additional
instructions after deliberations begin, so long as the instructions do not "suggest the
need for agreement, the consequences of no agreement, or the length of time a jury will
be required to deliberate." Calvin nevertheless argues the trial court erred by correcting
and replacing an instruction during jury deliberations.
The trial court originally gave an assault definition based on 11 Washington
Practice: Washington Pattern Jury Instructions: Criminal 35.50, at 547 (3d ed. 2008)
(WPIC) that included the term "unlawful force:"
An assault is an act, with unlawful force, 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.
An act is not an assault, if it is done with the consent of the person
alleged to be assaulted.
During deliberations, the jury asked the trial court, "How does the law define
'unlawful force?'" The trial court correctly reasoned that the instruction misstated the
posture and facts of the case. The term "unlawful force" is only necessary in the
definition of assault when there is a specific argument from the defense that the use of
force was somehow lawful. See WPIC 35.50, at 548. Without any specific lawful force
argument, self-defense or otherwise, the trial court was faced with a dilemma. It could
issue a response such as, "unlawful force is force that is not lawful." But, that response
would be unhelpful. Alternatively, it could give a supplemental instruction that
enumerated each type of lawful force. But, that option would give Calvin the benefit of
arguments that he did not make. Instead, the trial court drafted a new definition of
assault that omitted the "unlawful force" language. Defense counsel objected on the
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No. 67627-0-1/17
grounds that the State made a mistake and had to live with that mistake, because the
instructions had already been submitted. The trial court elected to give the new
instruction:
An assault is 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.
The trial court gave defense counsel an opportunity to reargue all or portions of the
case. Counsel declined and asked for a mistrial. But, in doing so, defense counsel
expressed that Calvin would not be waiving a claim of double jeopardy.
Under the law of the case doctrine jury instructions not objected to become the
law of the case. State v. Hickman. 135 Wash. 2d 97, 101-02, 954 P.2d 900 (1998). Thus,
when the State adds an unnecessary element to a to-convict instruction and the jury
convicts the defendant, the unnecessary element must be supported by sufficient
evidence. Jd at 105. Here, Calvin contends that the State undertook to prove "unlawful
force."
Although the State argues that the law of the case doctrine applies only when an
element is added to a to-convict instruction, the doctrine is not limited to that application.
It is a broad doctrine that has been applied to to-convict instructions and definitional
instructions. See, e.g.. City of Spokane v. White. 102 Wash. App. 955, 964-65, 10 P.3d
1095 (2000); State v. Price. 33 Wash. App. 472, 474-75, 655 P.2d 1191 (1982); Englehart
v. Gen. Elec. Co.. 11 Wash. App. 922, 923, 527 P.2d 685 (1974). It has been applied in
both criminal and civil cases. See, e.g.. Hickman. 135 Wash. 2d at 102; Crippen v.
Pulliam. 61 Wash. 2d 725, 732, 380 P.2d 475 (1963).
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No. 67627-0-1/18
The doctrine is based on the premise that whether the instruction in question was
rightfully or wrongfully given, it was binding and conclusive upon the jury. Hickman. 135
Wash. 2d at 101 n.2. Thus, a party cannot challenge unobjected to jury instructions for the
first time on appeal, or conversely disavow jury instructions on appeal that were
acquiesced to below. That basic function serves to avoid prejudice to the parties and
ensure that the appellate courts review a case under the same law considered by the
jury.
Here, an objection preserved the issue for review and the jury reached a verdict
based on the supplemental instruction. Because the trial court has discretion to give
supplemental instructions, the issue is not whether the law of the case doctrine bound
the State to the "unlawful force" language at the time the jury was given instructions.
Rather, our inquiry is whether the trial court abused its discretion when the jury sought
further clarification and the trial court identified and corrected a problem. In State v.
Ransom, the State charged the defendant with possession of cocaine with intent to
deliver. 56 Wash. App. 712, 712-13, 785 P.2d 469. The State did not pursue an
accomplice theory against the defendant. Id at 713. But, during deliberations the jury
asked the trial court:
"If someone is an accessory to the actual or constructive or attempted
transfer of a controlled substance from one person to another are they
both guilty of the same?"
Id The trial court then gave an accomplice instruction over defense counsel's
objection. Jd The Court of Appeals reversed. Jdat715. It concluded that, although
the trial court has discretion to give further instructions after deliberations begin, those
18
No. 67627-0-1/19
instructions may not go beyond matters that had been, or could have been, argued to
the jury. Id at 714. The defendant was entitled to rely on the fact that the State chose
not to pursue accomplice liability, which is a distinct theory of criminal culpability. Id
Accordingly, the trial court erred and a new trial was granted. Jd at 715.
In State v. Hobbs. the State acquiesced to an unnecessarily narrow venue
element that required the jury to find that the defendant committed the crime in King
County. 71 Wash. App. 419, 420-21, 859 P.2d 73 (1993). During jury deliberations, the
trial court granted the State's motion to amend the instruction by deleting "King County"
and inserting "State of Washington." Jd at 421. Defense counsel explained both below
and on appeal that she was aware during trial that the State was not going to be able to
prove venue and made strategic trial decisions based on that knowledge. Id at 424.
On appeal, we recognized that the trial court can give supplemental instructions so long
as they do not go beyond matters that had been, or could have been, argued to the jury.
Id. at 424. But, because defense counsel had adapted her trial strategy to the State's
additional undertaking, we found that there was actual prejudice. Jd at 420, 425. We
held that when presented with the State's motion to amend, the trial court's only viable
options were to hold the State to its election or declare a mistrial. Id at 425. We
remanded for a new trial where the jury could be properly instructed from the outset. Jd.
at 425.
Unlike in those cases, there was no prejudice here. There is no evidence, or
even any suggestion, that Calvin adapted his trial strategy to the inclusion of the
"unlawful force" language. Defense counsel was given the opportunity to reargue the
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No. 67627-0-1/20
case but declined. Calvin does not articulate why that remedy was inadequate.
Further, there is no dispute that the trial court's supplemental instruction was a correct
statement of the law. Calvin did not argue lawful force and was not entitled to any
lawful force instructions or the inclusion of unlawful force in the definition of assault.
The trial court did not abuse its discretion.1
V. Legal Financial Obligations
The trial court ordered Calvin to pay a total of $1,300 in mandatory and
discretionary legal financial obligations (LFOs). It is also entered a boilerplate finding
stating that Calvin had the ability to pay LFOs:
The court has considered the total amount owing, the defendant's past,
present and future ability to pay legal financial obligations, including the
defendant's financial resources and the likelihood that the defendant's
status will change. The court finds that the defendant has the ability or
likely future abilityto pay the legal financial obligations imposed herein.
Calvin argues that the finding is not supported by evidence, and that the trial court was
required to determine whether Calvin had the abilityto pay before ordering the payment
of costs.2
We review the trial court's decision to impose discretionary LFOs under the
clearly erroneous standard. State v. Baldwin. 63 Wash. App. 303, 312, 818 P.2d 1116,
1 Calvin also argues that the trial court's substitution violated the appearance of
fairness doctrine and constituted an impermissible comment on the evidence. It is
unclear how those doctrines are violated when the trial court deliberated in response to
an inquiry from the jury, discussed the issue with both parties, gave a legally correct
substitute instruction, and gave the parties an opportunity to reargue their cases. A jury
instruction that states the law correctly and concisely and is pertinent to the issues of
the case does not constitute a comment on the evidence. State v. Johnson. 29 Wn.
App. 807, 811,631 P.2d 413 (1981). Calvin's claims have no merit.
2 Calvin did not make these arguments below. But, illegal or erroneous
sentences may be challenged for the first time on appeal. State v. Ford. 137 Wash. 2d
472, 477, 973 P2d 452 (1999).
20
No. 67627-0-1/21
837 P.2d 646 (1991). Different components of the LFOs imposed on a defendant
require separate analysis. Id. Here, Calvin challenges the imposition of $450 for court
costs and a $250 fine.
A. Court Costs
The trial court may order a defendant to pay court costs pursuant to RCW
10.01.160. But,
The court shall not order a defendant to pay costs unless the defendant is
or will be able to pay them. In determining the amount and method of
payment of costs, the court shall take account of the financial resources of
the defendant and the nature of the burden that payment of costs will
impose.
RCW 10.01.160(3). It is well-established that this provision does not require the trial
court to enter formal, specific findings. See State v. Currv. 118 Wash. 2d 911, 916, 829
P.2d 166 (1992). Rather, it is only necessary that the record is sufficient for us to
review whether the trial court took the defendant's financial resources into account.
State v. Bertrand. 165 Wash. App. 393, 404, 267 P.3d 511 (2011), review denied. 175
Wash. 2d 1014, 287 P.3d 10 (2012). But, where the trial court does enter a finding, it must
be supported by evidence.
In this case, the only evidence of past employment was Calvin's testimony at trial
that he used to be a carpenter. There was no evidence at all of present or future
employment. And, the only evidence of Calvin's financial resources was his testimony
that he lived in a mobile home that did not have running water.3 At sentencing, the trial
court did not make any inquiry into Calvin's resources or employability. Indeed, the
3 Calvin did not have court-appointed defense counsel, but the record does not
establish who paid for his attorney.
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No. 67627-0-1/22
State does not even argue that there is evidence to support the finding. Rather, it
argues that "there is nothing in the record to show that Calvin will not have the ability to
pay his legal financial obligations in the future." (Emphasis in original.) But, the inquiry
is simply whether there is evidence to support the finding actually entered.4 The trial
court's finding is not supported. And, the record does not show that the trial court took
Calvin's financial resources and ability to pay into account.
We remand for the trial court to strike the finding and the imposition of court
costs.
B. Fine
Calvin also challenges the imposition of a $250 fine pursuant to RCW 9A.20.021.
That provision, however, merely enumerates the maximum sentence for Calvin's
convictions. It does not contain a requirement that the trial court enter findings or even
take into account a defendant's financial resources before imposing a fine. Calvin has
not articulated any basis for striking the fine.
VI. Statement of Additional Grounds
A defendant may submit a pro se statement of additional grounds for review
pursuant to RAP 10.10. Our review of such statements, however, is subject to several
practical limitations. For instance, we only consider issues raised in a statement of
additional grounds that adequately inform us of the nature and occurrence of the
alleged errors. State v. Alvarado. 164 Wash. 2d 556, 569, 192 P.3d 345 (2008). Further,
4 In the absence of a finding, our inquiry would be whether the record revealed
that the trial court took Calvin's financial resources into account and considered the
burden it would impose on him as required by RCW 10.01.160.
22
No. 67627-0-1/23
we only consider arguments that are not repetitive of briefing. RAP 10.10(a). Finally,
issues that involve facts or evidence not in the record are properly raised through a
personal restraint petition, not a statement of additional grounds. Alvarado. 164 Wash. 2d
at 569.
In an impassioned statement of additional grounds, in which Calvin asks that we
reverse on a moral basis, Calvin lists 29 assignments of error. Six of those
assignments of error, concerning the trial court's substitution of a jury instruction,
defense counsel's failure to request a self-defense instruction, and the sufficiency of the
evidence, are repetitive of appellant counsel's briefing. Another 17 of his assignments
of error concern the effectiveness of defense counsel, and particularly whether defense
counsel adequately emphasized certain evidence or legal arguments. But, "'[deficient
performance is not shown by matters that go to trial strategy or tactics.'" State v. Studd.
137 Wash. 2d 533, 551, 973 P.2d 1049 (1999) (emphasis omitted) (alteration in original).
Further, those arguments largely rely on facts or evidence outside the record. Calvin's
remaining six arguments concern juror misconduct. But, there is no evidence of juror
misconduct in the record. To the extent that Calvin's arguments concern facts and
evidence not in the record, his concerns should be raised in a personal restraint
petition.5
5 At our direction, the court clerk denied Calvin's motion to continue oral
argument for 120 days, for leave to submit a pro se supplemental brief, for leave to file a
personal restraint petition, and to have his pro se supplemental brief and personal
restraint petition heard simultaneously with his direct appeal. In the week before oral
argument, Calvin filed two additional motions. He first filed a motion to modify the
clerk's ruling. Calvin miscomprehends the original denial. He does not need leave to
file a personal restraint petition. However, we deny his request to continue this case so
that he may file an additional brief and a personal restraint petition to be heard together
with his direct appeal. In a second motion, filed only one court day before oral
23
No. 67627-0-1/24
We affirm Calvin's convictions and remand for the trial court to strike the finding
that Calvin has the present or future ability to pay LFOs and the imposition of $450 in
court costs.
WE CONCUR:
y+jL,«A^AC$. C^Uyy^ J
argument, Calvin asked to withdraw ten arguments from his statement of additional
grounds and partially withdraw another eight. We deny his request.
24