IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, DIVISION ONE Respondent, No. 79071-4-I V. UNPUBLISHED OPINION BRANDON KENNETH GORHAM,
Appellant. FILED: June 24, 2019
DWYER, J. — Brandon Gorham was convicted by jury verdict of assault in
the first degree and hit and run driving. He was sentenced to a standard range
term of incarceration. On appeal, Gorham contends that the State presented
insufficient evidence to support his conviction for assault in the first degree, that
the trial court erred by admitting a custodial statement he made notwithstanding
violation of his Miranda1 rights, that the prosecutor engaged in misconduct during
closing argument by telling the jury his personal opinion of the credibility of a
witness, that the trial court erred by declining to instruct the jury on a lesser-
included offense of vehicular assault, and that the trial court improperly imposed
on Gorham a $250 discretionary jury demand fee. We remand for the trial court
to strike the discretionary fee, but, finding no merit to any of Gorham’s other
contentions, affirm the conviction.
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). No. 79071-4-112
On September 10, 2016, Zachary Lucore, a self-admitted drug addict,2
attempted to visit his parents’ home. However, because of his drug addiction, his
family turned him away at the door. Subsequently, Lucore walked to a friend’s
home on Fredericksburg Way in Vancouver, Washington. Upon arriving, he
discovered that his friend did not appear to be at home. Nevertheless, he
attempted to connect his cell phone to her Wi-Fi network.
Meanwhile, Gorham was seated on the front porch of the house across
the street, listening to music and drinking beer with his friend Richard Rigney and
another person.3 Gorham lived in the house, which he shared with his mother,
Helene Guinette, and Rigney.
As he was connecting to the Wi-Fi network, Lucore was accosted by
someone from Gorham’s house. Either Guinette or a friend of hers (who was
also inside the house) shouted out to Lucore across the street. Lucore heard a
woman’s voice telling him to leave the area in what he considered to be a very
rude manner. Irritated, Lucore responded vulgarly, which led to a verbal
confrontation between Lucore and Gorham.
2 It is unclear from the record whether or not Lucore had used drugs, specifically methamphetamine, on the day in question. Lucore denies having used any drugs that day. A urine screening taken that day tested positive for methamphetamines, but the examining physician who performed the screening explained that methamphetamine can stay in a person’s system for up to 72 hours and, therefore, he could not be certain if Lucore had used methamphétamine that day. ~ According to one account given by Gorham, he spent the entire day drinking beer and was quite intoxicated by the time Lucore arrived at Fredericksburg Way. However, this claim was contradicted both by other witnesses, who testified that Gorham had worked on the day in question, rather than spending the whole day drinking, and by Gorham himself when he later claimed that he had a very high tolerance for alcohol and was, therefore, not actually able to say whether he was intoxicated.
2 No. 79071-4-1/3
At trial, Lucore and Gorham agreed that, employing indecorous language,
they both shouted insults and threats at one another. However, they recalled the
specifics of the confrontation differently.
As Lucore described the argument, Gorham explicitly threatened to run
him over with his truck, leading Lucore to threaten to cut Gorham with a knife
Lucore was holding. Although Lucore admitted to holding and verbally
threatening Gorham with the knife, he claimed that he never actually brandished
it toward Gorham.
As Gorham described the argument, he never threatened to run Lucore
over with his truck. Instead, Gorham claimed, ,Lucore both verbally threatened
him with a knife and actually brandished it, threatening to use it both on Gorham
and Guinette.
Following the verbal altercation, Lucore left the area by walking north on
Fredericksburg Way before turning left onto Tennessee Lane. Tennessee Lane
is home to the Martinez-Rodriguez family, two members of which, Armando and
Manuel, were outside as Lucore came walking down their street. Lucore said
hello to both Armando and Manuel as he passed. As Lucore proceeded down
Tennessee Lane, he placed bluetooth headphones into his ears in order to listen
to music. He then turned north onto Garrison Road.
As Lucore left the area, Gorham rushed into his home to grab the keys to
his truck, a Ford F-250. As he exited the house and jumped into his truck, he
was chased by Guinette, who, presumably alarmed by his behavior, was
pleading with him to stop. Ignoring his mother, Gorham drove off and turned
3 No. 79071-4-114
onto Tennessee Lane, going in the same direction as Lucore had traveled. As
he drove past Armando and Manuel, they noticed that he was driving at a much
higher speed than was normal for that street. As Gorham approached the
intersection of Tennessee and Garrison, he did not slow down or stop at the
intersection’s stop sign. Rather, he accelerated as he turned north oqto
Garrison.
At this point, Gorham’s account of events differs from those of Lucore’s
and other witnesses. However, all agree that Lucore was walking north on the
east side of Garrison Road when he was struck by Gorham’s vehicle and run
over.4 According to Manuel, who witnessed the collision, Lucore was walking
approximately three feet from the curb when Gorham accelerated and drove his
truck directly toward Lucore, hitting him, running him over, swerving away from
the curb, and then nearly striking another vehicle while driving away from the
scene.5 According to Gorham, Lucore was not three feet from the curb but,
rather, walked out into the middle of the road from behind a parked landscaping
truck,6 leaving Gorham with insufficient time to stop before hitting him. However,
Gorham admitted that he panicked after hitting Lucore and drove away rather
than stopping to assist him after the collision.
~ At the time of the incident there was no sidewalk on the east side of Garrison Road. ~ Lucore did not recall being struck by the truck. His recollection was solely of walking north along the east side of Garrison and then waking up on the ground about 10 to 15 feet away from where he had previously been with his belongings scattered about. 6 None of the other witnesses to the collision or to its aftermath corroborated Gorh am’s
claim that there was a landscaping truck parked on Garrison Road. Similarly, no such truck appears in any of the photographs taken of the scene by police investigators following the incident.
4 No. 79071-4-1/5
After running over Lucore, Gorham returned home, parked his truck in his
driveway, and went back inside his house. He did not tell Guinette about what
had occurred but did inform Rigney that he had chased down Lucore.
Meanwhile, the Martinez-RodrIguezes called 911. Medical personnel
arrived and transported Lucore to the hospital. As a result of the incident, Lucore
suffered from six rib fractures, a punctured lung, vertebral fractures, multiple
pelvic fractures, a penis tear, an anal tear, a ruptured bladder, and a fracture of
the orbital floor, all of which necessitated multiple surgical interventions over the
course of several months in the hospital and an additional several months
following release.
By the time Officer Dale Barnette arrived at the scene, Lucore had been
moved into an ambulance. Barnette spoke with medical personnel to identify
Lucore and then spoke with witnesses at the scene and took photographs of
Garrison Road. Specifically, he took photosof Lucore’s backpack and
belongings left strewn across the road and of scuff and skid marks along the
roadway left behind by vehicles and by Lucore’s body and belongings as they
dragged along the roadway as he was run over.
The pictures Barnette took upon arriving at the scene were turned over a
few days later to the Vancouver Police Department’s lead collision investigator,
Officer Jeffery Starks, who also went to the scene to take additional photographs
and measurements. He ultimately produced a total station scene diagram to
determine and illustrate how the collision had occurred. Based on his training
and experience as a collision investigator, Starks concluded that tire marks he
5 No. 79071-4-1/6
observed on the roadway and in pictures of the roadway from the day of the
collision were acceleration marks. He concluded that none of the tire marks
indicated any attempt to apply the brakes of the vehicle before or after it collided
with Lucore. Starks also concluded that scuff and scrape marks on the roadway
were the result of a pedestrian and buckles, backpacks, or belts being dragged
along the roadway. He specifically noted that marks on the roadway from
clothing were consistent with the clothing that Lucore was wearing on the day of
the collision.
Starks’ investigation ultimately led him to Gorham’s home, where he
noticed a dent in the front of Gorham’s truck and, after speaking with Rigney and
Guinette, had Gorham’s truck impounded. He arrested Gorham. At the police
station, Gorham informed Starks that he had experienced a bad weekend and
had been involved in a fight.
While awaiting trial, Gorham placed telephone calls from the jail in which
he made several statements regarding the incident. In one such call, he stated,
in reference to the incident: “What I do, I do for a good fucking reason . . . [and I
did] what I did for a good reason . . . and I got threatened.” In another such call,
he discussed interacting with his mother just prior to driving off after Lucore,
stating: “She tried stopping me . . . I didn’t stop. I mean — I can say this on the
phone because I don’t give a fuck right now. . . . [G]uy threatened me, so that’s
what happened and she already knows it.” In several other calls he expressed
an understanding that he had done something wrong and that he felt bad about
the incident.
6 No. 79071-4-1/7
Gorham was charged with attempted murder in the first degree, hit and
run driving, and assault in the first degree. During the trial, the State called
several witnesses, including the aforementioned Martinez-Rodrfguezes, various
first responders, Lucore’s doctors, Guinette, Rigney, Starks, and Lucore.
In the midst of Starks’ testimony, the trial court excused the jury and held
a CrR 3 5 hearing to determine the admissibility of Gorham’s statement “I had a
bad weekend. I got into a fight.” Starks testified that he read Gorham his
Miranda rights prior to asking him any questions Starks further explained that he
read the rights from a written form, which he then also had Gorham sign to
acknowledge that Gorham had been read his rights and that he understood those
rights. According to Starks, the form tracks the police department’s standard
Miranda rights language, but he did not specifically explicate that which
constituted the department’s standard Miranda language. Subsequently, Starks
testified that Gorham signed the acknowledgement form and gave no indication
that he did not understand his rights. The trial court ruled that the challenged
statement was admissible. Defense counsel did not object to the ruling.7
During trial, the parties discussed proposed jury instructions with the trial
court. Gorham proposed two lesser-included offense instructions, one for assault
in the third degree and one for vehicular assault. When the trial court began
discussing Gorham’s proposed instructions, he asked Gorham’s attorney if
vehicular assault and assault in the third degree were lesser-included offenses of
‘ In fact, earlier in the proceedings, defense counsel stated that he had no problem with Starks testifying to the statement so long as Starks did not testify to Gorham’s subsequent statement requesting a lawyer.
7 No. 79071-4-118
assault in the first degree. In response, Gorham’s counsel stated, “I can’t say
that I agree on vehicular assault. It’s something I’ll look more into. Assault in the
third degree, I think is a lesser-degree offense.”8
When specifically asked for argument as to whether vehicular assault is a
lesser-included offense of assault in the first degree, Gorham’s counsel
responded by stating, “What I would like to do, Your Honor, is simply offer it as
an instruction still. I will let the Court make its ruling at this time. If I feel there is
a need to posit an objection on the record., I shall do so.” When the trial court
subsequently declined to give a lesser-included instruction on vehicular assault,
Gorham’s lawyer objected by stating, “[F}or the record I will object to its not being
included in the jury package that the jury will be able to consider, but that’s all,
Your Honor.”
Following the presentation of evidence, the trial court instructed the jury
and the parties presented their closing arguments. The defense admitted that
Gorham had committed the hit and run but denied that he had intentionally run
into Lucore with his truck. During the State’s closing argument,9 the following
exchange occurred between the prosecutor, defense counsel, and the court:
[MR. BARTLETT]: And then you have Helene Guinette and Richard Rigney. Now a person could say they would be biased, that they would be biased towards Mr. Gorham, but I submit that they came in and did their absolute best to tell the truth about what happened as well. They had every opportunity while this case was pending to, you know and while they testified, to shade what they remembered to, you know, to give Mr. Gorham the benefit of the doubt where maybe he didn’t deserve it. But instead, they came in 8 The trial court ultimately gave the requested instruction on assault in the third degree. ~ Prior to closing arguments, the jury was instructed that “[y]ou are the sole judges of the credibility of each witness. You are also the sole judges of the value or weight to be given to the testimony of each witness.”
8 No. 79071-4-1/9
and quite ster not sternly, but strongly, you know, stuck to the —
memory that they have today about what happened. So when Mr. Gorham is telling you he had that there was —
three 18-packs of beer and he had been drinking all day, weigh that against what his mother and Richard Rigney said, where they his —
mother was adamant that he had worked that day. Would it have been easier for her to say, “Well, I could definitely be wrong about that today. I might not know if he worked that day or not. He perhaps had been drinking all day”? That would have been easy —
that would have been the easy thing for her to do, but she told the truth, and she —
MR. RAMSAY: Objection, Your Honor; comment on the truth of what witnesses say.
THE COURT: You will determine what the truth is.
MR. BARTLETT: Correct. Well, obviously. Sorry, Your Honor.
She did her best to tell the truth and that was what she remembered, that on that on the day in question, and she was —
adamant it was a Saturday and that’s what all the testimony has been, it’s been a Saturday, that Brandon worked, so he couldn’t have been home drinking all day.
The jury found Gorham guilty on the assault in the first degree and hit and
run charges but acquitted him on the attempted murder charge. Subsequently,
the trial court sentenced Gorham to a standard range sentence of 124 months of
confinement. Gorham then timely filed a notice of appeal to Division Two of the
Court of Appeals, which transferred the matter to us for resolution.
Gorham contends that the State presented insufficient evidence to support
his conviction for assault in the first degree, that the trial court erred by admitting
a statement in violation of his Miranda rights, that the prosecutor engaged in
misconduct during closing argument by giving the jury his personal opinion on
9 No. 79071-4-1/10
the credibility of a witness, that the trial court erred by declining to give a
vehicular assault as a lesser-included offense instruction, and that the trial court
improperly imposed a jury demand fee on Gorham. In response, the State
contends that sufficient evidence supports Gorham’s conviction for assault in the
first degree, that sufficient evidence established that Gorham received his
Miranda warnings, that the prosecutor did not commit misconduct because he
never stated his personal opinion regarding the credibihty of a witness, and that
Gorham waived his right to appeal from the trial court’s decision not to give a
vehicular assault instruction. The State concedes that the trial court’s decision to
impose a jury demand fee must be reversed. Finding no merit to any of
Gorham’s other contentions, we remand for the trial court to strike the
discretionary jury demand fee, but affirm the conviction.
A
Gorham first contends that insufficient evidence supports his conviction for
assault in the first degree. This is so, Gorham asserts, because a constitutionally
insufficient quantum of evidence established that he acted with the intent to inflict
great bodily harm when he struck and ran over Lucore with his truck. We
disagree.
‘The test for determining the sufficiency of the evidence is whether, after
viewing the evidence in the light most favorable to the State, any rational trier of
fact could have found guilt beyond a reasonable doubt.” State v. Salinas, 119
Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Green, 94 Wn.2d 216,
220-22, 616 P.2d 628 (1980)). “This inquiry does not require the reviewing court
10 No. 79071-4-I/Il
to determine whether it believes the evidence at trial established guilt beyond a
reasonable doubt.” Green, 94 Wn.2d at 221. “Instead, the relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781,61 L. Ed. 2d 560 (1979).
“A claim of insufficiency admits the truth of the State’s evidence and all
inferences that reasonably can be drawn therefrom.” Salinas, 119 Wn.2d at 201
(citing State v Theroff, 25 Wn App 590, 593, 608 P 2d 1254, affd, 95 Wn 2d
385, 622 P.2d 1240 (1980)). A trier of fact “may infer criminal intent from a
defendant’s conduct where it is ‘plainly indicated as a matter of logical
probability “ State v Bright, 129 Wn 2d 257, 270, 916 P 2d 922 (1996) (quoting
State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980)). In a sufficiency
analysis, “[c]ircumstantial evidence and direct evidence carry equal weight.”
State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004) (citing Delmarter,
94 Wn.2d at 638).
RCW 9A.36.01 I sets forth the crime of assault in the first degree:
(1) A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm: (a) Assaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death; or (b) Administers, exposes, or transmits to or causes to be taken by another, poison, the human mm unodeficiency virus as defined in chapter 70.24 RCW, or any other destructive or noxious substance; or (c) Assaults another and inflicts great bodily harm. (2) Assault in the first degree is a class A felony.
11 No. 79071-4-1/12
Gorham concedes that the State presented sufficient evidence to establish
each element of assault in the first degree except for the requirement of proof
that Gorham acted with the intent to inflict great bodily harm. This is so, Gorham
asserts, because the only evidence adduced by the State to prove Gorham’s
intent was Lucore’s testimony that Gorham threatened to run him over with his
truck According to Gorham, this evidence is insufficient because Lucore
admitted to being a paranoid schizophrenic who abused mind-altering drugs.
However, such a contention is not a challenge to the sufficiency of the evidence
so much as it is a disagreement with the Jury’s decision to credit Lucore’s
testimony instead of Gorham’s.
The jury was the sole judge of the credibility of the evidence. State v.
Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). The record is replete with
evidence consistent with the jury’s determination not to credit Gorham’s
testimony. Indeed, Gorham’s testimony regarding how the incident occurred,
whether there was a landscaping truck obscuring his view of Lucore, and
whether he had been at home drinking all day or had gone to work, was all
contradicted by the State’s eyewitnesses to the incident, Guinette, and Rigney.
In fact, Gorham contradicted his own testimony regarding his level of intoxication
at the time of the incident. The jury did not lack for reasons to choose not to
credit Gorham’s testimony.
Furthermore, not only did the State present evidence of Gorham’s direct
verbal threat to run over Lucore with his truck, it also presented eyewitness
testimony that Gorham accelerated to hit Lucore coupled with physical evidence
12 No. 79071-4-1113
of tire acceleration marks (and the absence of brake marks) that together
strongly support an inference that Gorham intentionally drove his truck into and
over Lucore. Additionally, while awaiting trial, Gorham made statements over the
telephone explaining that he ran over Lucore for a good reason, which further
supports an inference that he intentionally struck Lucore with his truck. A
constitutionally sufficient quantum of evidence supported the Jury’s verdict of guilt
on the assault in the first degree charge.
B
Gorham next contends that the trial court erred by admitting his statement,
‘1 had a bad weekend. I got into a fight.” This is so, Gorham asserts, because
insufficient evidence was presented during the CrR 3.5 hearing to show that
Gorham had been properly advised of his Miranda rights. Specifically, Gorham
contends that Officer Starks’ testimony during the CrR 3.5 hearing that he had
read Gorham “standard” Miranda rights from a written police form was legally
insufficient and that without testimony as to the specific rights read, the
challenged statement should have~ been excluded. In response, the State avers
that the testimony presented by Starks. was sufficient.1°
The Fifth Amendment to the United States Constitution provides that no
person “shall be compelled in any criminal case to be a witness against himself.”
10 The State also contends that Gorham waived his right to raise this issue on appeal because he did not object to the admission of the statement during the trial court proceedings. But the State has the burden of proving the voluntariness of Gorham’s statements by a preponderance of the evidence. State v. Athan, 160 Wn.2d 354, 380, 158 P.3d 27 (2007). The trial court held a CrR 3.5 hearing to determine voluntariness, weighed the evidence presented, and ruled that Gorham’s statement about having a bad weekend and getting into a fight was voluntary. Gorham may contest this ruling on appeal on the ground that the State presented insufficient evidence to meet its burden of proof.
13 No. 79071-4-1/14
To protect this right, the United States Supreme Court, in Miranda v. Arizona, set
forth procedural requirements to protect suspects from the use of their
involuntary statements against them at trial. .~ 384 U.S. 436, 444, 86 5. Ct.
1602, 16 L. Ed. 2d 694 (1966).
[A] suspect in custody “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one .will be appointed for him prior to any questioning if he ~ desires.”
Statev. Brown, 132 Wn.2d 529, 582, 940 P.2d 546 (1997) (quoting Miranda, 384
U.S. at 479). Failure to provide a suspect with any of the required Miranda
warnings “results in exclusion of any statements given by the suspect.” Brown,
132 Wn.2d at 582 (citing Oregon v. Elstad, 470 U.S. 298, 306-08, 105 S. Ct.
1285,84 L. Ed. 2d 222 (1985)). “However, there is no requirement that the
warnings be given in the precise language stated in Miranda.” Brown, 132
Wn.2d at 582 (citing Duckworth v. Eagan, 492 U.S. 195, 202-04, 109 S. Ct. 2875,
106 L. Ed. 2d 166 (1989)). When the State asserts that the defendant waived his
or her Miranda rights, the State “bears the burden of showing a knowing,
voluntary, and intelligent waiver of Miranda rights by a preponderance of the
evidence.”11 State v. Athan, 160 Wn.2d 354, 380, 158 P.3d 27 (2007).
The evidence adduced during the CrR 3.5 hearing herein satisfied the
preponderance of the evidence standard. Officer Starks testified that he advised
Gorham of his Miranda rights and that he did so by reading the Miranda rights
11A preponderance of the evidence means “more likely than not.” ~ In re Marriage of Freeman, 169 Wn.2d 664, 673, 239 P.3d 557 (2010).
14 No. 79071-4-1/15
from a standard police form. The officers uncontradicted testimony weighs in
favor of an inference that the warnings required by Miranda were, in fact,
provided to Gorham. The record does not provide any indication that the
standard Miranda rights language utilized by Officer Starks was incomplete or
that it did not comport with the requirements set forth in Miranda.12 Indeed,
defense counsels ready acceptance of the standard language testimony and his
decision not to challenge Officer Starks to delineate the specifics of the
advisement read to Gorham strongly support the opposite inference—that
Gorham’s afforney knew that the warnings read from the standard police form
referenced herein satisfied the requirements of Miranda.13 Officer Starks testified
that he advised the defendant of the required Miranda warnings. He further
testified that he did so by resort to a standard form, created for this purpose.
This evidence outweighed the contrary evidence adduced by Gorham—which
was nothing. Thus, the evidence presented tended to prove that it was more
likely than not that Gorham was informed of the required Miranda warnings and
that his subsequent statement regarding his weekend encounter with Lucore was
voluntary.
12 During the CrR 3.5 hearing, Gorham’s attorney had the opportunity to, but did not, ask Starks to specify the exact language of the warnings provided to Gorham. Nor did he contest their sufficiency. 13 Perhaps when the language of Miranda warnings was freshly minted from the United
States Supreme Court the inference desired by Gorham would have been appropriate However, it has been over 50 years since the advent of Miranda warnings, and their use has become ubiquitous in not only our nation’s police departments and courtrooms, but also in cinema and television programming. Indeed, much of our case law refers to the Miranda warnings without specifically delineating the precise information required to be conveyed thereby. Thus, it is not obvious that Gorham’s defense counsel, the trial judge, and everyone else in the courtroom, failed to comprehend what Starks meant when he testified that he used his department’s standard Miranda warnings language.
15 No. 79071-4-1116
C
Next, Gorham contends that the prosecutor engaged in misconduct while
delivering his closing argument. This is so, he avers, because the prosecutor
stated his personal opinion on the credibility of a witness. In response, the State
asserts that, within the context of the closing argument, the comments Gorham
identifies as the expression of a personal opinion are merely an expression of an
inference drawn from marshalling the evidence. The State has the better
argument.
“In closing argument, a prosecutor is afforded wide latitude to draw and
express reasonable inferences from the evidence.” State v. Reed, 168 Wn. App.
553, 577, 278 P.3d 203 (2012) (citing Statev. Hoffman, 116 Wn.2d 51, 94-95,
804 P 2d 577 (1991)) However, “[ijmproper vouching occurs when the
prosecutor expresses a personal belief in the veracity of a witness or indicates
that evidence not presented at trial supports the testimony of a witness.” State v.
Thorgerson, 172 Wn.2d 438, 443, 258 P.3d 43 (2011) (citing State v. Ish, 170
Wn.2d 189, 196, 241 P.3d 389 (2010)). “A defendant claiming prosecutorial
misconduct must show that the prosecutor’s conduct was both improper and
prejudicial in the context of the entire record and circumstances at trial.” State v.
Miles, 139 Wn. App. 879, 885, 162 P.3d 1169 (2007). We review a prosecutor’s
conduct during closing argument “in the context of the total argument, the issues
in the case, the evidence addressed in the argument, and the instructions given.”
State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994).
It is not uncommon for statements to be made in final arguments which, standing alone, sound like an expression of personal
16 No. 79071-4-1/17
opinion. However, when judged in the light of the total argument, the issues in the case, the evidence discussed during the argument, and the court’s instructions, it is usually apparent that counsel is trying to convince the jury of certain ultimate facts and conclusions to be drawn from the evidence. Prejudicial error does not occur until such time as it is clear and unmistakable that counsel is not arguing an inference from the evidence, but is expressing a personal opinion.
State v. Papadoioulos, 34 Wn. App. 397, 400, 662 P.2d 59 (1983).
Once a defendant establishes that a prosecutor’s statements are
improper, the defendant must establish actual prejudice. State v. Emery, 174
Wn.2d 741, 760, 278 P.3d 653 (2012). “If the defendant objected at trial, the
defendant must show that the prosecutor’s misconduct resulted in prejudice that
had a substantial likelihood of affecting the jury’s verdict.” Emery, 174 Wn.2d at
760 (citing State v. Anderson, 153 Wn. App. 417, 427, 220 P.3d 1273 (2009)).
Gorham contends that the prosecutor improperly expressed a personal
opinion on the veracity of Guinette’s testimony by remarking “but she told the
truth” and ‘[s]he did her best to tell the truth.” While these statements may—in
isolation—appear to be improper, the addition of context shows them to be
otherwise:
[MR. BARTLETT]: And then you have Helene Guinette and Richard Rigney. Now a person could say they would be biased, that they would be biased towards Mr. Gorham, but I submit that they came in and did their absolute best to tell the truth about what happened as well They had every opportunity while this case was pending to, you know and while they testified, to shade what they —
remembered to, you know, to give Mr Gorham the benefit of the doubt where maybe he didn’t deserve it But instead, they came in and quite ster not sternly, but strongly, you know, stuck to the —
memory that they have today about what happened. So when Mr. Gorham is telling you he had that there was —
three 18-packs of beer and he had been drinking all day, weigh that against what his mother and Richard Rigney said, where they his —
17 No. 79071-4-1/18
mother was adamant that he had worked that day. Would it have been easier for her to say, “Well, I could definitely be wrong about that today. I might not know if he worked that day or not. He perhaps had been drinking all day”? That would have been easy —
that would have been the easy thing for her to do, but she told the truth, and she —
MR. RAMSAY: Objection, Your Honor; comment on the truth of what witnesses say.
She did her best to tell the truth and that was what she remembered, that on that on the day in question, and she was —
adamant it was a Saturday and that’s what all the testimony has been, it’s been a Saturday, that Brandon worked, so he couldn’t /
have been home drinking all day.
“[Wjhen judged in the light of the total argument, the issues in the case,
the evidence discussed during the argument, and the court’s instructions,”
Papadopoulos, 34 Wn. App. at 400, it is apparent that the prosecutor herein was
merely trying to convince the jury of the ultimate conclusion that Guinette’s
testimony was truthful. Specifically, the prosecutor highlighted an inference of
truthfulness that the jury could draw from Guinette’s refusal to change her
recollection of events—that Gorham had goneto work on the day in question and
had not spent the whole day drinking—in the face of cross-examination.
Furthermore, even if the prosecutor had improperly expressed his
personal opinion, Gorham has failed to demonstrate prejudice that had a
substantial likelihood of affecting the jury’s verdict. Guinette’s testimony that
Gorham had not been drinking all day supported an inference that he was not
intoxicated at the time of the incident. This inference was also supported by
18 No. 79071-4-1/19
Rigney’s testimony regarding the amount of alcohol Gorham consumed that day
and by Gorham’s own testimony refuting that he was necessarily intoxicated
even if he had been drinking a lot because he had developed “a pretty high
alcohol tolerance.” Given the other evidence, it is far from substantially likely
that, had the prosecutor improperly commented on Guinette’s credibility
regarding Gorham’s drinking, such comment affected the jury’s verdict.
D
Gorham next contends that the trial court erred when it declined to give a
jury instruction for vehicular assault as a lesser-included offense of the crime of
assault in the first degree. Because Gorham did not properly preserve this claim
of error for appeal, we decline to address the merits of his contention.
We generally will not consider an issue, theory, or argument not presented
at trial State v McFarland, 127 Wn 2d 322, 332-33, 899 P 2d 1251 (1995)
(citing RAP 2.5(a)).14 This includes any issue for which inadequate argument
was presented to the trial court. Int’l Ass’n of Fire Fighters, Local 46 v. City of
Everett, 146 Wn.2d 29, 36-37, 42 P.3d 1265 (2002). “To be adequate for
appellate review, the argument should be more than fleeting.” State v. Lazcano,
188 Wn. App. 338, 355, 354 P.3d 233 (2015).
CrR 6.15(c) amplifies this general rule by requiring that when a party
objects to the “refusal to give a requested instruction” it “shall state the reasons
14 Under RAP 2.5(a)(3), we may consider manifest errors raised for the first time on appeal that affect a defendant’s constitutional rights, but the failure to instruct on a lesser included offense does not constitute manifest constitutional error. State v. O’Hara, 167 Wn.2d 91, 101, 217 P.3c1 756 (2009) (citing State v. Kwan Fal Mak, 105 Wn.2d 692, 745-49, 718 P.2d 407 (1986)).
19 No. 79071-4-1120
for the objection.” Our Supreme Court has cited this rule when refusing to review
“asserted instructional errors to which no meaningful exceptions were taken at
trial.” State v. Scott, 110 Wn.2d 682, 686, 757 P.2d 492 (1 988).
Although Gorham proposed a vehicular assault instruction and objected
on the record when the trial court declined to give it, he presented no legal
argument to support his proposed instruction. In fact, when the trial judge first
asked Gorham whether vehicular assault and assault in the third degree were
lesser-included offenses of assault in the first degree, counsel for Gorham stated,
“I can’t say that I agree on vehicular assault.” When the trial judge subsequently
asked counsel for Gorham to present argument in support of his requested
vehicular assault instruction, counsel declined to do so. Similarly, he declined to
explain his reasons for objecting when the trial court declined to give his
requested instruction.15 Because the record lacks any meaningful exception to
the trial court’s refusal to give Gorham’s requested vehicular assault instruction,
Gorham has waived his right to challenge that ruling on appeal.
E
Finally, Gorham contends, and the State concedes, that the trial court
erred by imposing on Gorham a discretionary jury demand fee of $250.
In 2018, the law on legal financial obligations was changed to categorically
15 The requirement that trial counsel present reasons for any objection assures that trial judges have the opportunity to correct any errors in proceedings. ~ State v. Strine, 176 Wn.2d 742, 749, 293 P.3d 1177 (2013) (quoting New Meadows Holding Co. v. Wash. Water Power Co., 102 Wn.2d 495, 498, 687 P.2d 212 (1984)). Waiting to explain the reasons for an objection until the case is on appeal denies the trial judge this opportunity. Thus, it is not sufficient for trial counsel to simply state an objection; counsel must also provide sufficient explanation supporting the objection to give the trial court a true opportunity to correct any alleged error.
20 No. 79071-4-1/21
prohibit the imposition of any discretionary legal financial obligations on indigent
defendants. LAWS OF 2018, ch. 269, § 6(3). A jury demand fee is a discretionary cost that courts cannot impose on indigent defendants. RCW 10.01.160(2)-(3).
Our Supreme Court has held that this change in the law applies prospectively to
cases on appeal. State v. Ramirez, 191 Wn.2d 732, 747-50, 426 P.3d 714
(2018). The trial court herein determined that Gorham is indigent. Thus, it was
improper for the trial court to impose the discretionary $250 jury demand fee.
This assessment must be stricken on remand.
Affirmed in part, reversed in part, and remanded.
We concur: