IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE of WASHINGTON, No. 86206-5-I Respondent, ORDER DENYING MOTION FOR v. RECONSIDERATION AND WITHDRAWING AND AHMED HASSAN OSMAN, SUBSTITUTING OPINION
Appellant.
The appellant, Ahmed Osman, has filed a motion for reconsideration of the opinion
filed on September 22, 2025, and the State has filed a response. The court has
determined that the motion should be denied, but the opinion should be withdrawn, and
a substitute opinion filed; now, therefore, it is hereby
ORDERED that the motion for reconsideration is denied; and it is further
ORDERED that the opinion filed on September 22, 2025 is withdrawn; and it is
further
ORDERED that a substitute unpublished opinion shall be filed. IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE of WASHINGTON, No. 86206-5-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
AHMED HASSAN OSMAN,
Appellant.
FELDMAN, J. — Ahmed Hassan Osman appeals his convictions for murder
in the first degree and assault in the second degree, both with deadly weapon
enhancements. He argues he is entitled to a new trial due to instructional error,
ineffective assistance of counsel, and prosecutorial misconduct. We remand for
the trial court to make an indigency determination and consider whether to strike
the victim penalty assessment and waive interest on restitution. In all other
respects, we affirm.
I
Osman stabbed and killed Nyaruot Chuol and attempted to stab her friend,
Nyaruot Both, after they trashed his apartment and stole his personal property. No. 86206-5-I
The night began when Osman and his acquaintance, “Aziz,” 1 decided to have a
party at Osman’s apartment after plans to meet up with some women that night fell
through. Osman invited his new friend Both, who refused to attend without her
childhood friend Chuol.
The party included loud music, food, alcohol, and marijuana. At one point
during the party, Osman retrieved his handgun and AR-15 to “demo” the firearms
for his guests. During the demo, Both placed the handgun’s holster around her
waist where it remained for the rest of the evening. The group continued drinking
through the early hours of the morning and Chuol in particular became intoxicated.
There is conflicting evidence about what happened next. Osman testified
he asked the women to leave, and he attempted to call the police when they
refused to do so. Osman testified that he was unable to complete the call because
the women attacked him, called him a “snitch” for involving law enforcement, and
kept his phone to prevent him from completing future calls. Both offered a different
account and testified that Osman became angry with Chuol when she refused to
sleep in his bedroom instead of on the couch, they began arguing, and Osman
then slapped Chuol.
It is undisputed that Chuol and Both began “trashing” Osman’s apartment
after the physical altercation—breaking dishes, damaging his TV and laptop,
overturning furniture, and otherwise damaging Osman’s personal property. Both
1 Aziz’s last name is not in the record. He was not interviewed by police, nor did he testify at trial. Security footage and other evidence at trial indicates he left the building before the stabbing occurred.
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testified that Chuol told Osman they were going to tell all their cousins to kill Osman
and beat him up.
Both also testified that Osman demanded the women “get out” and
brandished his handgun at them. Osman put the gun down and retreated to his
bedroom, and Both took the gun and slipped it into the holster she was already
wearing. Chuol and Both then left the apartment, taking Osman’s wallet, handgun,
and phone with them. Osman chased them into the hallway, brandishing a knife.
The women responded by yelling at Osman and shoving him back in the direction
of his apartment. Osman testified Both pointed the handgun at him and told him
her cousins were going to come kill him.
Chuol and Both summoned the elevator again, got on it, and left Osman’s
floor. They noticed Chuol’s phone was missing and went to Osman’s car to see if
it was there. From outside, they taunted Osman with his stolen property as he
watched them from the window. Osman tried to call 911 through Google Assistant
since he no longer had a phone, but was unsuccessful. Chuol and Both returned
to the building because Chuol’s phone was not in Osman’s car. A neighbor who
lived on Osman’s floor, Trevor Davis, let them into the secure building.
Davis then rode the elevator with Chuol and Both to the second floor and
walked back to his apartment, which was down the hallway on the opposite side
of the elevator from Osman’s apartment. Davis testified that, from his apartment,
he could hear the group arguing in the hallway and so he left his apartment to
complain about the noise. According to Davis, Osman told him that the women
destroyed his property but did not ask him to call the police. Davis did not hear the
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women threaten Osman with any future violence, nor did Osman indicate he feared
Both because she possessed his handgun. Davis then returned to his apartment.
Evidence in the record suggests Chuol and Both separately reentered
Osman’s apartment to look for Chuol’s missing phone. According to Osman’s
testimony, “that's when they're yelling threats. Ms. Both is on her phone and
they’re both yelling, ‘You're fucking dead. We're going to fucking kill you. Our
cousins are going to kill you.’” Unsuccessful in the search for her phone, Chuol
stole Osman’s apartment keys on her way out of Osman’s apartment. Chuol and
Both then walked toward, and summoned, the elevator. Security footage shows
Osman walk toward the women with a knife concealed behind his back. As Chuol
stepped into the waiting elevator, Osman stabbed her in the abdomen. Osman
then slashed at Both, narrowly missing her, and followed her, shouting, as she fled
down the hallway.
After chasing Both down the hallway, Osman returned to Chuol, who was
seated on the ground motionless, lifted her by her hair, and stabbed her in the
back. He then chased after Both again before returning to Chuol to stab her a third
time as she lay face down on the ground partway into the elevator. He then
returned to his apartment. Both attempted to help Chuol and called 911. When
police arrived, Chuol was declared dead at the scene.
Osman was charged with first degree murder of Chuol and second degree
assault of Both. A jury found him guilty of these counts with deadly weapon
enhancements. The court subsequently imposed a victim penalty assessment of
$500 and interest on restitution. Osman appeals.
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II
Osman argues the trial court erred when it refused to instruct the jury on
justifiable homicide in resisting a felony. We disagree.
RCW 9A.16.050(2) provides, “Homicide is . . . justifiable when committed .
. . [i]n the actual resistance of an attempt to commit a felony upon the slayer, in his
or her presence, or upon or in a dwelling, or other place of abode, in which he or
she is.” WPIC2 16.03 provides the pattern instruction for this defense. It states in
relevant part:
It is a defense to a charge of [murder] that the homicide was justifiable as defined in this instruction.
Homicide is justifiable when committed in the actual resistance of an attempt to commit a felony [upon the slayer] [in the presence of the slayer] [or] [upon or in a dwelling or other place of abode in which the slayer is present].
The slayer may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer, taking into consideration all the facts and circumstances as they appeared to [him] at the time [and prior to] the incident . . . .
Citing State v. Brightman, 155 Wn.2d 506, 122 P.3d 150 (2005), the trial court
refused to give the instruction, explaining “this cannot be considered as reasonably
necessary when I look at the statute [RCW] 9A.16.05[0](2) and when I look at what
justifiable homicide is supposed to be as that is defined by the statute by the case
law.”
“A defendant is entitled to an instruction on justifiable homicide when he or
she has raised some credible evidence, from whatever source, to establish that
2 11 W ASHINGTON PRACTICE: W ASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 16.03, at 267 (5th
ed. 2021).
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the killing occurred in circumstances that meet the requirements of RCW
9A.16.050.” Brightman, 155 Wn.2d at 520. “The trial court must view the evidence
from the standpoint of a ‘reasonably prudent person who knows all the defendant
knows and sees all the defendant sees.’” Id. (quoting State v. Read, 147 Wn.2d
238, 242, 53 P.3d 26 (2002)). “If no credible evidence appears on the record to
support a claim of justifiable homicide, then the trial court must refuse to give a
justifiable homicide instruction.” Id. The trial court must also “evaluate whether
the force used by the slayer was reasonably necessary.” Id. at 521. “A justifiable
homicide instruction based on . . . [RCW 9A.16].050(2) depends upon a showing
that the use of deadly force was necessary under the circumstances.” Id. at 523.
Here, Osman did not make an evidentiary showing that the use of deadly
force was necessary in “actual resistance of an attempt to commit a felony upon
the slayer, in his or her presence, or upon or in a dwelling, or other place of abode,
in which he or she is.” RCW 9A.16.050(2). The surveillance video does not permit
any such showing. It shows that when Osman advanced on Chuol and Both and
stabbed Chuol and attempted to stab Both, the women had left his apartment and
were waiting for the elevator. While Osman emphasizes that Chuol and Both had
previously threatened him, they were not threatening his life or great bodily harm
after they last left his apartment. Nor is there any evidence Osman was attempting
to restore the property that Chuol and Both took from him; he instead testified only
that he was afraid of the women in that moment. 3 And neither walked toward him;
3 Osman testified that he was “terrified” and “trapped” in his home, was “cornered” with “no way
out,” and “grabbed the knife” “for protection” in the moments immediately prior to stabbing Chuol. He did not testify as to any intent to regain his property or stop the women from leaving for the purposes of getting his phone, wallet, gun, or keys back when he went into the hallway for the last time.
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to the contrary, Chuol was stepping into the elevator away from Osman when he
stabbed her. Neither reached for a weapon or gestured at him. Because Osman
made no showing the women posed a risk to him when he stabbed Chuol and
attempted to stab Both, we conclude that the trial court correctly refused to give an
instruction on justifiable homicide in resistance of a felony in this case.
Osman likens his case to State v. Douglas, 128 Wn. App. 555, 116 P.3d
1012 (2005). The comparison is inapt. In Douglas, “uncontroverted facts”
established a house guest refused to leave and instead “remained unlawfully in
the Douglases’ home with intent to commit a felony” and then assaulted Douglas
before Douglas killed him. Id. at 568. Division Two concluded, “because the
evidence supported [Douglas’s self-defense] theory, the trial court committed
reversible error in refusing to give Douglas’s proposed jury instruction on justifiable
homicide [in resistance to a felony].” Id. The evidence in this case, unlike in
Douglas, did not establish that Chuol remained unlawfully in Osman’s home with
the intent to commit crimes against him. To the contrary, the record (including the
surveillance video) establishes she had left his apartment and was attempting to
enter the elevator when Osman stabbed her. On this record, Douglas is
inapposite.
Nor does State v. Slert, noted at 128 Wn. App. 1069 (2005), an unpublished
opinion cited by Osman in a statement of additional grounds, support his argument
on this issue. Slert found reversible error where the trial court rejected Slert’s
proposed instruction on justifiable homicide in resistance of a felony because Slert
produced “evidence to establish the killing occurred in circumstances amounting
to defense of life.” Id. at *3. Slert testified the slain man attacked him immediately
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prior to his use of deadly force, and evidence supported such a theory because
Slert was covered with blood and evidence on the ground indicated a fight
occurred. Id. Unlike Slert, Osman did not make an evidentiary showing Chuol
attacked him immediately prior to when he used deadly force or threatened him
such that deadly force was necessary under the circumstances. Like Douglas,
Slert does not require reversal here.
III
Osman next argues he is entitled to a new trial because he was denied his
right to effective assistance of counsel. We disagree.
“To demonstrate ineffective assistance of counsel, a defendant must make
two showings.” State v. Vazquez, 198 Wn.2d 239, 247, 494 P.3d 424 (2021).
First, the defendant must show that “defense counsel’s representation was
deficient, i.e., it fell below an objective standard of reasonableness based on
consideration of all the circumstances.” Id. at 247-48. Second, the defendant must
show that “defense counsel’s deficient representation prejudiced the defendant,
i.e., there is a reasonable probability that, except for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 248. “A
defendant must affirmatively prove prejudice, not simply show that ‘the errors had
some conceivable effect on the outcome.’” State v. Crawford, 159 Wn.2d 86, 99,
147 P.3d 1288 (2006) (quoting Strickland v. Washington, 466 U.S. 668, 693
(1984)). This “requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at
687. “Failure to establish either prong of the test is fatal to an ineffective assistance
claim.” State v. Arumugam, 30 Wn. App. 2d 411, 433, 545 P.3d 363 (2024).
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Osman argues he was denied his right to effective assistance of counsel in
two respects, the first of which is that his lawyers “proposed a defective justifiable
homicide instruction.” The trial court instructed the jury, “Homicide is justifiable
when committed in the lawful defense of the slayer when . . . the slayer reasonably
believed that the person slain intended to inflict death or great personal injury . . .
.” Osman argues the instruction should have stated: Homicide is justifiable when
committed in the lawful defense of the slayer when . . . the slayer reasonably
believed that the person slain or others whom the defendant reasonably believed
were acting in concert with the person slain intended to inflict death or great
personal injury. When defense counsel submitted this proposed instruction, they
failed to include the italicized text, which is set forth in brackets in WPIC 16.02 to
be used “as applicable.” 11 WPIC 16.02 note on use at 261.
Even if Osman could establish the first prong of the ineffective assistance
of counsel test with regard to this alleged deficiency, he cannot establish prejudice.
Because the slaying was captured on video, there is overwhelming evidence
Osman could not have reasonably believed that either woman, whether acting in
concert with each other or not, intended to inflict death or great personal injury on
him as they waited for the elevator and attempted to leave. Because neither Chuol
nor Both posed any threat to Osman at that time, Osman cannot affirmatively prove
the outcome of his trial would have been different if his lawyers had included the
phrase “or others whom the defendant reasonably believed were acting in concert
with the person slain” in the jury instruction for justified homicide in self-defense.
Thus, Osman’s first ineffective assistance of argument fails on the prejudice prong.
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Next, Osman argues he was denied his right to effective assistance of
counsel when his lawyers failed to include a definition of the term “necessary” in
the jury instructions pertaining to the assault in the second degree charge. 11
WPIC 16.05 at 272 defines “necessary” as “no reasonably effective alternative to
the use of force appeared to exist.” Defense counsel initially proposed an
instruction defining “necessary” based on WPIC 16.05. The State did not object.
After argument regarding the jury instructions, the trial court asked the State to
finalize the instructions by incorporating all changes discussed. The State did so,
but omitted the instruction defining “necessary.” Osman’s lawyers were then
asked whether there were any exceptions to the State’s final instructions and failed
to identify or object to the omitted instruction.
As with his first ineffective assistance of counsel argument, Osman cannot
establish prejudice. In the absence of the instruction defining “necessary” in
accordance with WPIC 16.05, the jury would have relied on the ordinary meaning
of the term, which is: “that cannot be done without: that must be done or had:
absolutely required: ESSENTIAL, INDISPENSABLE.” W EBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 1511 (1993). The difference between this definition and
WPIC 16.05 is immaterial here, as a reasonable juror would conclude based on
the evidence at trial (including the surveillance video) that Osman used force that
was more than necessary under any definition of the word because no force was
necessary at all. Yet Osman advanced toward Chuol and Both while they were
waiting for the elevator and attacked them with a knife. Accordingly, Osman
cannot show there was a reasonable probability that the result of the trial would
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have been different had his lawyers included the omitted instruction. This
argument, too, fails on the prejudice prong. 4
IV
Osman argues the prosecutor committed misconduct in three distinct ways.
We address each in turn.
A
First, Osman asserts the State improperly undermined the “no duty to
retreat” jury instruction by arguing during closing that Osman had alternatives to
the use of deadly force. His argument is not persuasive.
Where counsel objects to alleged prosecutorial misconduct during trial, as
occurred here, “the defendant bears the burden of proving that the prosecutor’s
conduct was both improper and prejudicial” to prevail on a prosecutorial
misconduct claim. State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012). We
review the prosecutor’s conduct in the context of the whole argument, issues of
the case, evidence addressed in the argument, and jury instructions. State v.
Gouley, 19 Wn. App. 2d 185, 200, 494 P. 3d 458 (2021). It is not improper for a
prosecutor to “argue that the evidence does not support the defense theory.” State
v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747 (1994). To show prejudice requires
that the defendant show a substantial likelihood that the misconduct affected the
jury verdict. State v. Thorgerson, 172 Wn.2d 438, 442-43, 258 P.3d 43 (2011);
4 Osman also argues the trial court erred in failing to give his proposed instruction defining "necessary." We analyze this issue solely in the context of Osman’s ineffective assistance of counsel arguments because, as set forth in the text above, Osman’s counsel waived this asserted error by failing to object below. See State v. Scott, 110 Wn.2d 682, 688 n.5, 757 P.2d 492 (1988) (“failure to define individual terms” does not constitute “manifest constitutional error” and is therefore waived if not raised in the trial court).
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State v. Ish, 170 Wn.2d 189, 195, 241 P.3d 389 (2010); State v. Dhaliwal, 150
Wn.2d 559, 578, 79 P.3d 432 (2003).
Here, the jury received an instruction that there is no duty to retreat. The
instructions states:
It is lawful for a person who is in a place where that person has a right to be and who has reasonable grounds for believing that he is being attacked to stand his ground and defend against such attack by the use of lawful force. The law does not impose a duty to retreat.
Our Supreme Court has likewise held, “the jury should be instructed that the law
does not require a person to retreat when he or she is assaulted in a place where
he or she has a right to be.” State v. Redmond, 150 Wash. 2d 489, 494–95, 78
P.3d 1001, 1004 (2003).
During closing, the State described the elements of justifiable homicide in
self-defense asking, “Did the slayer employ such force and means as a reasonably
prudent person would?” Emphasizing necessity and reasonableness, the State
argued:
[Y]ou heard me ask Mr. Osman again and again why was this necessary, was he still afraid, why was he afraid, why was this violence and brutality the only response. There were never any answers that could make sense of this because, if the fear was real, there were alternatives. You heard me ask several times about whether or not Mr. Osman locked the doors. He did not have an obligation to lock the door. It was simply checking in on his decision- making process in the light of what someone might do in similar circumstances. He never locked his front door.
But it’s important to consider the alternatives when judging whether such a violent action could be deemed reasonable. You have the additional instruction that indicates . . . an individual does not have the duty to retreat. This is true. This is related to stand your ground. When you find yourself in a physical confrontation you do not have the duty to run away but it is -- is that what happened here? Or was it Mr. Osman advancing at every opportunity? Does this instruction indicate that you have the right to seek out individuals and advance?
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Is it reasonable to advance when the two people you are afraid of are leaving? Is it reasonable to go towards them and your fear? Is it reasonable to go arm yourself in advance?
Mr. Osman did not have a duty to leave that night. You heard that he was in his apartment. The women were headed to the elevator. He did not have the duty to go in any other direction, but it was an option. There was a staircase in the opposite direction from the two women. There were neighbors in the opposite direction –
Defense counsel objected, stating, “I’m going to object as to an assertion or -- an
assertion that he had an opportunity to retreat because it runs contrary to the law.”
The trial court responded, “The objection is noted.” The State then continued:
There were phone lines and people and help outside. He did not have a duty to leave, but you can consider that when evaluating the reasonableness of his actions in approaching and confronting and stabbing Ms. Chuol. There was a chance to go right. There was a chance to go left. At the end of all of this I am arguing that he went towards the two women because this was never about fear. He was angry.
While defense counsel did not specifically object to this further argument, the
previous objection arguably carries over and the failure to repeat the prior objection
is not in any event dispositive here.
The above argument does not warrant reversal. Read in the context, the
prosecutor’s arguments were that Osman did not have reasonable grounds for
believing that he was being attacked at the time he approached the women with
the knife in the hallway. And while Osman testified, “They told me their cousins
were going to kill me,” the prosecutor appropriately argued Osman had reasonable
alternatives to remove himself from what he feared might happen in the future.
Viewed in the context of the whole argument, issues of the case, evidence
addressed in the argument, and jury instructions, the prosecutor permissibly
argued that the evidence does not support Osman’s theory of the case. See
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Russell, 125 Wn.2d at 87 (quoted above). Moreover, even if Osman could
establish misconduct, he cannot show a substantial likelihood that the alleged
misconduct affected the jury verdict. That is because, as discussed previously,
overwhelming evidence—including detailed surveillance video—supports the
conviction and establishes the unavailability of self-defense as justification.
Osman’s prosecutorial misconduct argument on this issue therefore fails.
Osman argues that State v. Redmond, 150 Wn.2d 489, 495, 78 P.3d 1001
(2003), “demonstrates the impropriety of the prosecution’s argument.” But his
reliance on Redmond is misplaced. The court there held that the trial court’s failure
to provide a no duty to retreat instruction to the jury was “reversible error.” Id. at
495. In determining that this failure was prejudicial, the court stated that the risk
that the jury might “engage in their own assessment of the defendant’s opportunity
to retreat” was “exacerbated by the prosecutor’s statement in her closing argument
that ‘Bryan Johnson’s back was up against the car, so if anybody had the way to
get out of the situation, it was the defendant.’” Id. at 494 & n.3 (quoting report of
proceedings). Here, in contrast, the trial court did not fail to provide a no duty to
retreat instruction; the instruction was given, and we presume the jury followed it.
See State v. Gauthier, 189 Wn. App. 30, 39, 354 P.3d 900 (2015). And rather than
imply a duty to retreat, as the prosecutor did in Redmond, the prosecutor in this
case argued Osman did not have reasonable grounds to believe he was being
attacked—as the no duty to retreat instruction requires—at the time he approached
Chuol and Both in the hallway. On this record, Redmond is inapposite.
B
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Second, Osman asserts the following portion of the State’s closing
argument was improper:
I want to pause for a moment and acknowledge that there were a lot of things that Ms. Chuol and Ms. Both did wrong that night. In the course of this trial I have not attempted to sugarcoat what happened or minimize what they did. They took his belongings and caused significant damage to Mr. Osman’s stuff. That is very clear and something Ms. Both acknowledged over and over again in her multiple statements and on the stand. It is okay to acknowledge this. It is okay to raise an eyebrow at how they were behaving. It is okay to admit that many times throughout the evening where they made bad decisions. What is not okay is to try to pretend that their actions deserved a death sentence.
This portion of the closing argument, Osman avers, constitutes “improper
vouching.” We reject this argument.
“Improper vouching generally occurs (1) if the prosecutor expresses his or
her personal belief as to the veracity of the witness or (2) if the prosecutor indicates
that evidence not presented at trial supports the witness’s testimony.” Ish, 170
Wn.2d at 196. Significantly, Osman failed to object to the State’s characterization
of the victims’ conduct at trial. The “failure to object to an improper remark
constitutes a waiver of error unless the remark is so flagrant and ill intentioned that
it causes an enduring and resulting prejudice that could not have been neutralized
by an admonition to the jury.” Thorgerson, 172 Wn.2d at 443 (quoting Russell,
125 Wn.2d at 86). Additionally, defense counsel’s failure to request a curative
instruction or a mistrial for an allegedly improper remark “strongly suggests the
argument did not appear [irreparably prejudicial] in the context of the trial.” State
v. Negrete, 72 Wn. App. 62, 67, 863 P.2d 137 (1993).
The theory of Osman’s vouching argument is that the prosecutor
“sugarcoat[ed] and minimize[d] [Chuol’s and Both’s] behavior multiple times during
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trial” by referring to their conduct as “theft,” “malicious mischief,” and “property
crimes” instead of referring to the conduct as “burglary” or “robbery,” which are
more serious offenses. The difference between these crimes does not establish
improper vouching, as the prosecutor neither expressed a personal belief as to the
veracity of the witnesses nor did they indicate that evidence not presented at trial
supported the witnesses’ testimony. Moreover, the State argued during closing
that it was “okay” to acknowledge what the women “did wrong that night” and
displayed images of the damage to Osman’s apartment. Lastly, even if the
statements were improper, they were not so “flagrant and ill intentioned” that a
curative instruction could not have obviated any prejudicial effect. We reject this
argument.
C
Third, Osman argues the prosecutor committed misconduct during closing
argument when they displayed a PowerPoint slide showing a still-frame image of
Osman after he stabbed Chuol followed immediately thereafter by another slide
showing an in-life image of Chuol. Although Osman did not object to these slides
at trial, he claims the prosecutor improperly appealed to passion and prejudice by
“juxtaposing” these photographs during closing argument. We disagree.
Osman analogizes this case to State v. Salas, 1 Wn. App. 2d 931, 408 P.3d
383 (2018), also a self-defense case. There, the State showed a single
PowerPoint slide juxtaposing a photo of the victim with a photo of the defendant.
Id. at 941. The victim’s photo showed him “surrounded by three people dressed
in cartoon costumes” and included a caption, “Band leader, saxophone player,
customer service representative.” Next to this photograph was a grim image of
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Salas’ face resembling a mugshot and a caption reading “‘Football player, fighter,
outdoorsman.” Id. Salas likened the photo comparison to the problematic usage
of a “booking photo” that was “shown alongside a smiling picture of the victim.” Id.
at 945 (citing State v. Walker, 182 Wn.2d 463, 474, 341 P.3d 976 (2015)). The
court concluded the juxtaposition of the photos “complete[d] and reinforce[d]” the
improper message that the slain person “was a sweet, deferential person, and it
would have been out of character for him to attack Salas with a knife”—thus
undermining the defendant’s self-defense theory. Id. at 946.
Salas does not support Osman’s argument. Unlike Salas, the State’s slides
did not contain any pejorative captions. Unlike Salas, the pictures of Osman and
Chuol were not on the same slide. And also unlike Salas, the picture of Osman
was substantive evidence of Osman’s state of mind during the slaying, not an
unrelated photo giving an improper impression of Osman’s character. Rather than
using the images to convey the unlikeliness of the need for self-defense against a
harmless looking victim, as in Salas, the prosecutor here used the image of Osman
as substantive proof the slaying was motivated by rage, not fear, and thus the
homicide could not be found justified by self-defense. The prosecutor’s statements
accompanying the picture of Osman confirm what the evidence shows: that
Osman “was not terrified. He was full of rage.” On this record, Osman fails to
show misconduct.
Furthermore, because Osman did not object to the two PowerPoint slides
at trial, he must establish that the alleged misconduct “is so flagrant and ill
intentioned that it causes an enduring and resulting prejudice that could not have
been neutralized by an admonition to the jury.” Thorgerson, 172 Wn.2d at 443
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(quoting Russell, 125 Wn.2d at 86). The jury was instructed, “You must reach your
decision based on the facts proved to you and on the law given to you, not on
sympathy, prejudice, or personal preference.” As noted above, we presume the
jury followed this instruction. See Gauthier, 189 Wn. App. at 39. Had Osman
objected at trial, the jury also could have been instructed as to any alleged
prejudice resulting from the juxtaposition of the two photos. Considering the above
instruction, the context of the trial as a whole, and the overwhelming evidence of
guilt, Osman cannot show prejudice requiring reversal. 5
V
Lastly, Osman requests remand for the trial court to consider whether he is
indigent and, if so, whether the victim penalty assessment should be stricken from
his judgment and whether interest on restitution should be waived. The State does
not oppose this request, and we grant limited remand for this purpose. See State
v. Ellis, 27 Wn. App. 2d 1, 6, 530 P.3d 1048 (2023) (remanding to trial court to
determine indigency and reconsider imposition of interest on restitution and VPA).
WE CONCUR:
5 Osman also asserts a cumulative error argument. The cumulative error doctrine “requires reversal
where a combination of . . . errors denies the defendant a fair trial.” State v. Ritchie, 24 Wn. App. 2d 618, 644 n.9, 520 P.3d 1105 (2022). But “where the errors are few and have little or no effect on the outcome of the trial” reversal is not required. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006). Because the alleged errors are at most few and had little or no effect on the outcome of trial, we conclude that Osman is not entitled to relief under the cumulative error doctrine.
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