FILED July 26, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 33422-8-111 ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) ANTHONY A. JOSEPH, ) ) Appellant. )
LAWRENCE-BERREY, A.CJ. -Anthony A. Joseph appeals his conviction for
custodial assault of a corrections officer at the Kittitas County jail. He contends that the
trial court abused its discretion by admitting evidence of prior threats to a corrections
officer and that the State's closing argument improperly shifted the burden of production.
We affirm.
FACTS
During the morning of October 12, 2014, Kittitas County Corrections
Officer Laura Mittleider was conducting cell inspections and running the request
cart, which contains supplies for inmates. She offered items from the cart to
Anthony Joseph, an inmate at the jail. Mr. Joseph asked for paper and pencils, but No. 33422-8-111 State v. Joseph
Officer Mittleider told him he could not have any pencils. Mr. Joseph became
angry and grabbed her left arm through an opening in his cell door. The State
charged Mr. Joseph with custodial assault.
Before trial, the State sought to introduce evidence that Mr. Joseph was not
allowed to have pencils due to threatening another corrections officer in the jail on
a previous occasion. The court denied the State's request.
At trial, Officer Mittleider testified that after she refused to give Mr. Joseph
a pencil, he became angry and hostile, threatened to kill her, spit at her, and
grabbed her left arm through the open cuff port. She testified that she was on duty
and works for the Kittitas County Corrections Department. She also testified that
Kittitas County is in Washington State.
After Officer Mittleider testified, the State asked to admit evidence that Mr. Joseph
had been angry the day before over being denied a pencil. Defense counsel objected.
The trial court overruled the objection, but prohibited the State from eliciting testimony
relating to the basis for the denial of pencils.
Fernando Contreras, a corrections officer at the jail, testified that he responded to
Officer Mittleider's request for help after Mr. Joseph grabbed her arm. He stated that he
saw a red mark on her wrist after the incident.
2 No. 33422-8-111 State v. Joseph
The prosecutor then questioned Officer Contreras about the prior incident:
Q .... Now, are you familiar with whether or not Mr. Joseph knew he was not going to get a pencil? A. lam. Q. Okay. And how are you familiar with that? A. In the day prior I told him myself that he wasn't going to be getting pencils off the request cart. Q. Alright. And without saying any specifics, what was his demeanor when told that? A. He was very angry, upset. He cursed, yelled, made threats.
Report of Proceedings (RP) at 54.
Mr. Joseph took the stand and denied that he grabbed Officer Mittleider's arm.
The jury found Mr. Joseph guilty of custodial assault.
ANALYSIS
Admission ofPrior Act Under ER 404(b)
The first issue is whether the trial court erred in admitting evidence under
ER 404(b) relating to Mr. Joseph's confrontation with Officer Contreras. Mr. Joseph
argues the evidence was improperly used to support an inference that he was a dangerous
person likely to become angry when deprived of pencils and therefore also likely to
assault the officer who denied his request. The State responds that Officer Contreras's
testimony was relevant to Mr. Joseph's intent to assault Officer Mittleider.
We review a trial court's decision to admit evidence of misconduct for an abuse of
3 No. 33422-8-111 State v. Joseph
discretion. State v. Brown, 132 Wn.2d 529, 571-72, 940 P.2d 546 (1997). Under
ER 404(b) evidence of other crimes, wrongs, or acts is presumptively inadmissible to
prove character and show conformity therewith. ER 404(b); State v. Powell, 126 Wn.2d
244,258, 893 P.2d 615 (1995). However, such evidence may be admissible for other
purposes such as proof of motive or intent. ER 404(b ). Before admitting ER 404(b)
evidence, a trial court must, on the record, identify the purpose for admitting it, and
determine whether the evidence is relevant and necessary to prove an essential element of
the crime. State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002). The court must also
balance the probative value against its prejudicial effect. Id.
Prior misconduct evidence is only admissible to show intent ''when intent is at
issue or when proof of the doing of the charged act does not itself conclusively establish
intent." Powell, 126 Wn.2d at 262 (citing State v. Saltarelli, 98 Wn.2d 358, 365-66, 655
P.2d 697 (1982)). Intent refers to the'" state of mind in which a person seeks to
accomplish a given result through a course of action."' Powell, 126 Wn.2d at 261
(quoting BLACK'S LAW DICTIONARY 810 (6th rev. ed. 1990)).
Initially, we note that the trial court failed to balance the probative value of the
evidence against the prejudicial effect. Despite this omission, it is apparent that the trial
court would have admitted the evidence if it had performed the balancing test. See State v.
4 No. 33422-8-111 State v. Joseph
Carleton, 82 Wn. App. 680, 686-87, 919 P.2d 128 (1996) (failure to balance the probative
value against the prejudicial effect on the record is harmless if a reviewing court can
determine the trial court would have admitted the evidence if it had performed the
balancing test). In the discussion regarding the admissibility of the prior act, the court
recognized the potential prejudice of evidence related to the basis of the denial of the
pencils and prohibited any questioning along those lines.
The jury here was instructed that an assault is an act done with intent to inflict
bodily injury or with the intent to create fear of bodily injury. Mr. Joseph's denial that he
grabbed Officer Mittleider' s arm put into issue every element of the crime, including
intent. See State v. Billups, 62 Wn. App. 122, 130, 813 P.2d 149 (1991) (defendant's
denial of acts from which intent could be inferred put intent in issue). Thus, the evidence
of Mr. Joseph's angry encounter with Officer Contreras was relevant to his state of mind
when Officer Mittleider denied him a pencil the next day. We also find that the probative
value outweighed any prejudicial effect. The incident with Officer Contreras was a small
portion of the testimony against him. The trial court did not abuse its discretion in
admitting the evidence of Mr. Joseph's prior misconduct.
State's Closing Argument
Next, Mr. Joseph claims that the State's closing argument improperly shifted the
5 No. 33422-8-III State v. Joseph
burden of production to him. Referencing the elements in the ''to convict" instructions,
the State argued:
Well, obviously, 2, 3, and 4 won't be any question.
Free access — add to your briefcase to read the full text and ask questions with AI
FILED July 26, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 33422-8-111 ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) ANTHONY A. JOSEPH, ) ) Appellant. )
LAWRENCE-BERREY, A.CJ. -Anthony A. Joseph appeals his conviction for
custodial assault of a corrections officer at the Kittitas County jail. He contends that the
trial court abused its discretion by admitting evidence of prior threats to a corrections
officer and that the State's closing argument improperly shifted the burden of production.
We affirm.
FACTS
During the morning of October 12, 2014, Kittitas County Corrections
Officer Laura Mittleider was conducting cell inspections and running the request
cart, which contains supplies for inmates. She offered items from the cart to
Anthony Joseph, an inmate at the jail. Mr. Joseph asked for paper and pencils, but No. 33422-8-111 State v. Joseph
Officer Mittleider told him he could not have any pencils. Mr. Joseph became
angry and grabbed her left arm through an opening in his cell door. The State
charged Mr. Joseph with custodial assault.
Before trial, the State sought to introduce evidence that Mr. Joseph was not
allowed to have pencils due to threatening another corrections officer in the jail on
a previous occasion. The court denied the State's request.
At trial, Officer Mittleider testified that after she refused to give Mr. Joseph
a pencil, he became angry and hostile, threatened to kill her, spit at her, and
grabbed her left arm through the open cuff port. She testified that she was on duty
and works for the Kittitas County Corrections Department. She also testified that
Kittitas County is in Washington State.
After Officer Mittleider testified, the State asked to admit evidence that Mr. Joseph
had been angry the day before over being denied a pencil. Defense counsel objected.
The trial court overruled the objection, but prohibited the State from eliciting testimony
relating to the basis for the denial of pencils.
Fernando Contreras, a corrections officer at the jail, testified that he responded to
Officer Mittleider's request for help after Mr. Joseph grabbed her arm. He stated that he
saw a red mark on her wrist after the incident.
2 No. 33422-8-111 State v. Joseph
The prosecutor then questioned Officer Contreras about the prior incident:
Q .... Now, are you familiar with whether or not Mr. Joseph knew he was not going to get a pencil? A. lam. Q. Okay. And how are you familiar with that? A. In the day prior I told him myself that he wasn't going to be getting pencils off the request cart. Q. Alright. And without saying any specifics, what was his demeanor when told that? A. He was very angry, upset. He cursed, yelled, made threats.
Report of Proceedings (RP) at 54.
Mr. Joseph took the stand and denied that he grabbed Officer Mittleider's arm.
The jury found Mr. Joseph guilty of custodial assault.
ANALYSIS
Admission ofPrior Act Under ER 404(b)
The first issue is whether the trial court erred in admitting evidence under
ER 404(b) relating to Mr. Joseph's confrontation with Officer Contreras. Mr. Joseph
argues the evidence was improperly used to support an inference that he was a dangerous
person likely to become angry when deprived of pencils and therefore also likely to
assault the officer who denied his request. The State responds that Officer Contreras's
testimony was relevant to Mr. Joseph's intent to assault Officer Mittleider.
We review a trial court's decision to admit evidence of misconduct for an abuse of
3 No. 33422-8-111 State v. Joseph
discretion. State v. Brown, 132 Wn.2d 529, 571-72, 940 P.2d 546 (1997). Under
ER 404(b) evidence of other crimes, wrongs, or acts is presumptively inadmissible to
prove character and show conformity therewith. ER 404(b); State v. Powell, 126 Wn.2d
244,258, 893 P.2d 615 (1995). However, such evidence may be admissible for other
purposes such as proof of motive or intent. ER 404(b ). Before admitting ER 404(b)
evidence, a trial court must, on the record, identify the purpose for admitting it, and
determine whether the evidence is relevant and necessary to prove an essential element of
the crime. State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002). The court must also
balance the probative value against its prejudicial effect. Id.
Prior misconduct evidence is only admissible to show intent ''when intent is at
issue or when proof of the doing of the charged act does not itself conclusively establish
intent." Powell, 126 Wn.2d at 262 (citing State v. Saltarelli, 98 Wn.2d 358, 365-66, 655
P.2d 697 (1982)). Intent refers to the'" state of mind in which a person seeks to
accomplish a given result through a course of action."' Powell, 126 Wn.2d at 261
(quoting BLACK'S LAW DICTIONARY 810 (6th rev. ed. 1990)).
Initially, we note that the trial court failed to balance the probative value of the
evidence against the prejudicial effect. Despite this omission, it is apparent that the trial
court would have admitted the evidence if it had performed the balancing test. See State v.
4 No. 33422-8-111 State v. Joseph
Carleton, 82 Wn. App. 680, 686-87, 919 P.2d 128 (1996) (failure to balance the probative
value against the prejudicial effect on the record is harmless if a reviewing court can
determine the trial court would have admitted the evidence if it had performed the
balancing test). In the discussion regarding the admissibility of the prior act, the court
recognized the potential prejudice of evidence related to the basis of the denial of the
pencils and prohibited any questioning along those lines.
The jury here was instructed that an assault is an act done with intent to inflict
bodily injury or with the intent to create fear of bodily injury. Mr. Joseph's denial that he
grabbed Officer Mittleider' s arm put into issue every element of the crime, including
intent. See State v. Billups, 62 Wn. App. 122, 130, 813 P.2d 149 (1991) (defendant's
denial of acts from which intent could be inferred put intent in issue). Thus, the evidence
of Mr. Joseph's angry encounter with Officer Contreras was relevant to his state of mind
when Officer Mittleider denied him a pencil the next day. We also find that the probative
value outweighed any prejudicial effect. The incident with Officer Contreras was a small
portion of the testimony against him. The trial court did not abuse its discretion in
admitting the evidence of Mr. Joseph's prior misconduct.
State's Closing Argument
Next, Mr. Joseph claims that the State's closing argument improperly shifted the
5 No. 33422-8-III State v. Joseph
burden of production to him. Referencing the elements in the ''to convict" instructions,
the State argued:
Well, obviously, 2, 3, and 4 won't be any question. I mean, the testimony-the only testimony is, in fact, that everybody agrees to is it happened over at the Kittitas County Jail, which is in the State of Washington; that Laura Mittleider was there and that she was a staff member at that correctional institution/local detention facility; the only one in Kittitas County. So that-those two are met. That at the time of the assault she was performing her official duties. And again, you heard that, that one of the duties of the persons who work there is, you know, to do various things when inspections is over then they bring the request cart around so people can have their toiletries and their toothpaste . . . . And so 2, 3 and 4 are not at issue at all.
RP at 90-91.
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. Hoffman, 116
Wn.2d 51, 94-95, 804 P.2d 577 (1991). However, it is improper for a prosecutor to
mention in closing argument that the defense failed to present a witness or state that the
jury should find the defendant guilty based simply on the defendant's failure to present
evidence to support his defense theory.
Mr. Joseph argues that the State's closing argument suggested that the jury need
not consider three of the essential elements of the charged offense because Mr. Joseph
failed to present evidence on those issues. He argues this case is akin to State v.
6 No. 33422-8-111 State v. Joseph
Boehning, 127 Wn. App. 511, 111 P.3d 899 (2005) where prosecutorial misconduct in
closing argument required reversal because the prosecutor referenced unadmitted
evidence and repeatedly argued that the defendant had failed to establish that a witness's
out-of-court statements were inconsistent with her testimony at trial. The court concluded
that the State's argument improperly shifted the burden of production to the defendant.
Id. at 523.
Nothing remotely similar happened here. Unlike Boehning, the prosecutor did not
imply that witnesses withheld information at trial or that their previous statements
supported more serious or unfiled charges. The State did not suggest that Mr. Joseph
failed to present evidence or that he had the burden to present evidence relating to an
element of the crime. The State simply noted that three elements were not in dispute.
This did not shift the burden of production to Mr. Joseph. Moreover, the jury was
instructed that the State, not Mr. Joseph, had the burden of proving each element of the
crime. Finally, Mr. Joseph's own testimony could reasonably be inferred to agree that he
was in jail in Washington State, and that Officer Mittleider was on duty at the time of the
incident. Mr. Joseph testified that he was in jail in October and that he had contact with
Officer Mittleider, who was making the rounds with the request cart. The State's closing
argument did not shift the burden of production to Mr. Joseph.
7 No. 33422-8-III State v. Joseph
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, A.CJ. j WE CONCUR:
Pennell, J.