State Of Washington v. Donald Calvin ( 2013 )


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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       ^     ,,«
    DONALD L. CALVIN
    Appellant.                          FILED: May 28, 2013      S    o-n_
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    ^5
    Appelwick, J. —After an altercation with a park ranger, Calvin was convtcted^p
    __4 ,-_•-•
    assault in the third degree and resisting arrest. He argues that his convictions A§ n§f <
    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 Wn.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 Wn.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 "'[c]ome on,' and took a step toward him." 
    131 Wn. 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 Bandv. a woman was
    convicted of interfering with a public officer in the performance of his duties after
    interfering with the arrest of her father. Id. 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.     ]d 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 Wn. App. 738
    , 740-41, 
    46 P.3d 280
    No. 67627-0-1/8
    (2002); State v. Simmons. 
    35 Wn. 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 Wn.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.            ]d 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. ]d 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. JcL 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.
    8
    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 all 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 Wn.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. |d; State v. Powell. 
    150 Wn. 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 if one 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 if there is an
    appearance of imminent danger. State v. Bradley, 
    141 Wn.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.
    III.   Prosecutorial Misconduct
    Prosecutorial misconduct is grounds for reversal if the prosecuting attorney's
    conduct was both improper and prejudicial. State v. Monday, 
    171 Wn.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. Jd 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. Boehning. 
    127 Wn. 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 Wn. 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. Thorgerson. 
    172 Wn.2d 438
    ,
    451, 
    258 P.3d 43
     (2011). Thus, in Thorgerson, it was improper for the prosecutor to
    refer to the defense counsel's presentation of the case as "'bogus'" and "'sleight of
    12
    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 mischaracterizations'" 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 Wn.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 Wn. 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. Jd 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. Jd at 67.
    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
    Thorgerson. 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 Wn. 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 Wn.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 Wn.2d 136
    , 175, 
    892 P.2d 29
     (1995)
    (quoting State v. Sargent. 
    40 Wn. 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 Wn. 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 Wn.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 Wn. 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
    16
    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 Wn.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 Wn. App. 955
    , 964-65, 
    10 P.3d 1095
     (2000); State v. Price. 
    33 Wn. App. 472
    , 474-75, 
    655 P.2d 1191
     (1982); Englehart
    v. Gen. Elec. Co.. 
    11 Wn. App. 922
    , 923, 
    527 P.2d 685
     (1974). It has been applied in
    both criminal and civil cases.       See, e.g., Hickman. 
    135 Wn.2d at 102
    ; Crippen v.
    Pulliam, 
    61 Wn.2d 725
    , 732, 
    380 P.2d 475
     (1963).
    17
    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 Wn.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 Wn. App. 712
    , 712-13, 
    785 P.2d 469
    .         The State did not pursue an
    accomplice theory against the defendant. Jd 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. Jd 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.
    'n 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 Wn. 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. Jd 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.
    Jd 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.     Jd 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
    19
    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 ability to 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 ability to 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 Wn. 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 Wn.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. Jd 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. Curry. 
    118 Wn.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 Wn. App. 393
    , 404, 
    267 P.3d 511
     (2011), review denied, 
    175 Wn.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.
    21
    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 Wn.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 Wn.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, "'[d]eficient
    performance is not shown by matters that go to trial strategy or tactics.'" State v. Studd,
    
    137 Wn.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:
    V)". ACS.                                V^Uv^ J
    argument, Calvin asked to withdraw ten arguments from his statement of additional
    grounds and partially withdraw another eight. We deny his request.
    24