FILED DECEMBER 13, 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STATE OF WASHINGTON, ) ) No. 33965-3-111 Respondent, ) ) v. ) ) CAMERON J. PETERSON, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, J. - Cameron Peterson appeals a jury verdict convicting him on only
one of two charges arising from a tavern fight in Spokane. Since there is no showing of
prejudicial error, we affirm.
FACTS
Mr. Peterson was charged with both first and second degree assault arising from a
tavern fight that spilled out into the street. Inside the tavern, Mr. Peterson struck Gregory
Zielke Sr., in the head, knocking the man out. The senior Zielke had been engaged in an
argument with Peterson's friend, Paul Cook. Peterson ran outside the tavern and was
pursued by Gregory Zielke Jr.
Peterson was unable to get his car started, so he removed his .25 mm gun from the
vehicle and fled on foot. The younger Zielke overtook Peterson and tackled him; a fight No. 33965-3-111 State v. Peterson
ensued. Peterson ended the fight by shooting Zielke once in each of his forearms. The
younger man then ran to safety, ending the fight.
The court instructed the jury on self-defense and defense of others, and also that
the defendant had no duty to retreat. In closing argument, the prosecutor argued, without
objection, that the jury should consider "what would you have done" and that the
defendant had reasonable alternatives to self-defense. The jury acquitted Peterson of first
degree assault involving the younger Zielke, but convicted him of second degree assault
against the senior Zielke.
After receiving a standard range sentence of three months in jail, Mr. Peterson
timely appealed to this court.
ARGUMENT
The appeal presents two challenges to the conviction, and Mr. Peterson's
statement of additional grounds (SAG) presents numerous other arguments. We consider
first the challenge to the sufficiency of the evidence, and then a claim that the prosecutor
engaged in misconduct in closing argument, before briefly addressing the pro se
contentions.
Sufficiency of the Evidence
Mr. Peterson first contends that the jury had insufficient evidence of second
degree assault in light of the evidence that he was defending Mr. Cook. Since the jury
2 No. 33965-3-III State v. Peterson
was not required to believe that evidence, the remaining evidence amply supports its
verdict.
Sufficiency of the evidence review is subject to very well settled standards.
Appellate courts review such challenges to see if there was evidence from which the trier
of fact could find each element of the offense proven beyond a reasonable doubt. State v.
Green, 94 Wn.2d 216, 221-222, 616 P .2d 628 (1980) ( citing Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). The reviewing court will
consider the evidence in a light most favorable to the prosecution. Id. This court also
must defer to the finder of fact in resolving conflicting evidence and credibility
determinations. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
When a jury is instructed on self-defense or defense of others, the State is required
to disprove the defense beyond a reasonable doubt. State v. Acosta, IO 1 Wn.2d 612, 615-
616, 683 P .2d 1069 ( 1984). Agreeing that the State proved the other elements of second
degree assault, Mr. Peterson's sole challenge concerns the evidence that he was acting in
defense of Mr. Cook at the time he struck Mr. Zielke Sr. He argues that the State did not
disprove his defense of others claim.
This argument fails because the jury was not required to believe his testimony.
There was conflicting evidence concerning how the incident occurred. The State's
evidence showed that Mr. Peterson without warning struck Mr. Zielke Sr. in the back of
the head in a surprise attack. There was no imminent danger of assault. While the
3 No. 33965-3-III State v. Peterson
defense certainly disagreed with that view of the case, the question here is whether there
was evidence from which the jury could find that events unfolded as the State argued
they did. Such was the case.
The evidence supported the jury's conclusion that Mr. Peterson was not acting in
the defense of Mr. Cook when he struck the senior Zielke. Therefore, the evidence was
sufficient to support that conviction.
Prosecutor's Argument
Mr. Peterson next contends that the prosecutor engaged in misconduct in her
closing argument by misstating the law. While we agree that the prosecutor erred, there
was no prejudice to the defense.
To prevail on a claim of prosecutorial misconduct, a defendant must establish that
the prosecutor's conduct was both improper and resulted in prejudice in light of the
context of the entire record and the circumstances at trial. State v. Thorgerson, 172
Wn.2d 438,442, 258 P.3d 43 (2011). Prejudice exists only where there is a substantial
likelihood the misconduct affected the jury's verdict. Id. at 442-443. When a defendant
fails to object to an improper remark, he or she waives a claim 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."' Id. at 443 (quoting State
v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994)). Thus, a properly challenged
statement will be reviewed for a "substantial likelihood" that it affected the verdict, while
4 No. 33965-3-III State v. Peterson
unchallenged statements will be considered only if the error was too egregious for a
timely objection to be worthwhile. This court reviews alleged improper comments in the
context of the total argument, the issues in the case, the evidence addressed in the
argument, and the instructions given to the jury. State v. Brown, 132 Wn.2d 529,561,
940 P.2d 546 (1997).
A prosecutor has wide latitude to argue reasonable inferences from the evidence.
Thorgerson, 172 Wn.2d at 448. However, the prosecutor commits reversible misconduct
when he urges the jury to consider evidence outside the record; appeals to passion and
prejudice are typically based on matters outside the record. State v. Pierce, 169 Wn.
App. 533,553,280 P.3d 1158 (2012). Furthermore, a prosecutor is not allowed to assert
in argument his personal belief in the accused's guilt. State v. Reed, 102 Wn.2d 140, 145,
684 P.2d 699 (1984). It also is improper for the prosecutor to shift the burden of proof to
the defendant or argue that the defendant failed to present evidence. Thorgerson, 172
Wn.2d at 453.
Appellant contends that the prosecutor's argument that the jury should equate a
reasonable person with what they would do misstated the law and thereby lowered the
prosecution's burden of proof. At least one earlier case recognizes that this argument is a
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FILED DECEMBER 13, 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. 33965-3-111 Respondent, ) ) v. ) ) CAMERON J. PETERSON, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, J. - Cameron Peterson appeals a jury verdict convicting him on only
one of two charges arising from a tavern fight in Spokane. Since there is no showing of
prejudicial error, we affirm.
FACTS
Mr. Peterson was charged with both first and second degree assault arising from a
tavern fight that spilled out into the street. Inside the tavern, Mr. Peterson struck Gregory
Zielke Sr., in the head, knocking the man out. The senior Zielke had been engaged in an
argument with Peterson's friend, Paul Cook. Peterson ran outside the tavern and was
pursued by Gregory Zielke Jr.
Peterson was unable to get his car started, so he removed his .25 mm gun from the
vehicle and fled on foot. The younger Zielke overtook Peterson and tackled him; a fight No. 33965-3-111 State v. Peterson
ensued. Peterson ended the fight by shooting Zielke once in each of his forearms. The
younger man then ran to safety, ending the fight.
The court instructed the jury on self-defense and defense of others, and also that
the defendant had no duty to retreat. In closing argument, the prosecutor argued, without
objection, that the jury should consider "what would you have done" and that the
defendant had reasonable alternatives to self-defense. The jury acquitted Peterson of first
degree assault involving the younger Zielke, but convicted him of second degree assault
against the senior Zielke.
After receiving a standard range sentence of three months in jail, Mr. Peterson
timely appealed to this court.
ARGUMENT
The appeal presents two challenges to the conviction, and Mr. Peterson's
statement of additional grounds (SAG) presents numerous other arguments. We consider
first the challenge to the sufficiency of the evidence, and then a claim that the prosecutor
engaged in misconduct in closing argument, before briefly addressing the pro se
contentions.
Sufficiency of the Evidence
Mr. Peterson first contends that the jury had insufficient evidence of second
degree assault in light of the evidence that he was defending Mr. Cook. Since the jury
2 No. 33965-3-III State v. Peterson
was not required to believe that evidence, the remaining evidence amply supports its
verdict.
Sufficiency of the evidence review is subject to very well settled standards.
Appellate courts review such challenges to see if there was evidence from which the trier
of fact could find each element of the offense proven beyond a reasonable doubt. State v.
Green, 94 Wn.2d 216, 221-222, 616 P .2d 628 (1980) ( citing Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). The reviewing court will
consider the evidence in a light most favorable to the prosecution. Id. This court also
must defer to the finder of fact in resolving conflicting evidence and credibility
determinations. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
When a jury is instructed on self-defense or defense of others, the State is required
to disprove the defense beyond a reasonable doubt. State v. Acosta, IO 1 Wn.2d 612, 615-
616, 683 P .2d 1069 ( 1984). Agreeing that the State proved the other elements of second
degree assault, Mr. Peterson's sole challenge concerns the evidence that he was acting in
defense of Mr. Cook at the time he struck Mr. Zielke Sr. He argues that the State did not
disprove his defense of others claim.
This argument fails because the jury was not required to believe his testimony.
There was conflicting evidence concerning how the incident occurred. The State's
evidence showed that Mr. Peterson without warning struck Mr. Zielke Sr. in the back of
the head in a surprise attack. There was no imminent danger of assault. While the
3 No. 33965-3-III State v. Peterson
defense certainly disagreed with that view of the case, the question here is whether there
was evidence from which the jury could find that events unfolded as the State argued
they did. Such was the case.
The evidence supported the jury's conclusion that Mr. Peterson was not acting in
the defense of Mr. Cook when he struck the senior Zielke. Therefore, the evidence was
sufficient to support that conviction.
Prosecutor's Argument
Mr. Peterson next contends that the prosecutor engaged in misconduct in her
closing argument by misstating the law. While we agree that the prosecutor erred, there
was no prejudice to the defense.
To prevail on a claim of prosecutorial misconduct, a defendant must establish that
the prosecutor's conduct was both improper and resulted in prejudice in light of the
context of the entire record and the circumstances at trial. State v. Thorgerson, 172
Wn.2d 438,442, 258 P.3d 43 (2011). Prejudice exists only where there is a substantial
likelihood the misconduct affected the jury's verdict. Id. at 442-443. When a defendant
fails to object to an improper remark, he or she waives a claim 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."' Id. at 443 (quoting State
v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994)). Thus, a properly challenged
statement will be reviewed for a "substantial likelihood" that it affected the verdict, while
4 No. 33965-3-III State v. Peterson
unchallenged statements will be considered only if the error was too egregious for a
timely objection to be worthwhile. This court reviews alleged improper comments in the
context of the total argument, the issues in the case, the evidence addressed in the
argument, and the instructions given to the jury. State v. Brown, 132 Wn.2d 529,561,
940 P.2d 546 (1997).
A prosecutor has wide latitude to argue reasonable inferences from the evidence.
Thorgerson, 172 Wn.2d at 448. However, the prosecutor commits reversible misconduct
when he urges the jury to consider evidence outside the record; appeals to passion and
prejudice are typically based on matters outside the record. State v. Pierce, 169 Wn.
App. 533,553,280 P.3d 1158 (2012). Furthermore, a prosecutor is not allowed to assert
in argument his personal belief in the accused's guilt. State v. Reed, 102 Wn.2d 140, 145,
684 P.2d 699 (1984). It also is improper for the prosecutor to shift the burden of proof to
the defendant or argue that the defendant failed to present evidence. Thorgerson, 172
Wn.2d at 453.
Appellant contends that the prosecutor's argument that the jury should equate a
reasonable person with what they would do misstated the law and thereby lowered the
prosecution's burden of proof. At least one earlier case recognizes that this argument is a
misstatement of the law because it ignores the objective component of the reasonable
person standard. State v. Walker, 164 Wn. App. 724, 734-736, 265 P.3d 191 (2011). We
agree that the prosecutor's statements here were erroneous for the same reason.
5 No. 33965-3-111 State v. Peterson
We need not decide whether or not a timely objection could have cured the error,
because we conclude that appellant has not established that he was prejudiced by the
argument. The bulk of the prosecutor's comments in the closing arguments were directed
to the first degree assault charge-the count on which the jury acquitted Mr. Peterson.
She made only a few brief references to the second degree assault count, and none of
those comments referred to the defense of others standard. From the prosecutor's
perspective, the second degree assault simply involved an attack from behind without
warning and did not present issues of defense of others. Similarly, none of her "what
would you have done" statements referenced the second degree assault charge. Each of
them challenged some action taken by Mr. Peterson related to his confrontation with the
younger Zielke.
In the context of the prosecutor's closing argument, all of the challenged
statements referenced the first degree assault charge on which the jury acquitted Mr.
Peterson. We are convinced beyond a reasonable doubt that they did not affect the
verdict on the second degree assault charge. The erroneous statements were not
prejudicial on that charge.
Statement ofAdditional Grounds
Mr. Peterson filed a pro se SAG raising numerous claims that largely reargue the
case from his point of view. None of the arguments have merit.
6 No. 33965-3-111 State v. Peterson
This court will consider only arguments that are not repetitive of briefing. RAP
10.IO(a). We also will not consider a defendant's statement of additional grounds for
review if it does not inform the court of the nature and occurrence of alleged errors. RAP
10.IO(c); State v. Bluehorse, 159 Wn. App. 410,436,248 P.3d 537 (2011). An appellate
court is not required to search the record in support of claims made in the SAG. RAP
10.IO(c). Complaints about attorney performance cannot be entertained if the attorney's
conduct "can be characterized as legitimate trial strategy or tactics." State v. McNeal,
145 Wn.2d 352, 362, 37 P.3d 280 (2002). 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. State v. Calvin, 176 Wn. App. 1, 26,316 P.3d 496 (2013).
Many of the arguments address either defense counsel's trial strategy or issues
outside of the record that we cannot consider. The personal statement includes a list of
nineteen statements of additional grounds for review. Numbers 1, 2, 4, 5, 6, 7, 8, 9, 12,
18, and 19 present evidence not in the record. Number 3 is a disagreement with his
counsel's trial strategy. Numbers 10, 11, 14, 15, 16, and 17 are not statements of
additional grounds for review; most address the shooting incident of which he was
acquitted. Finally, Number 13 is an accusation of prosecutorial misconduct that cannot
be located in the report of proceedings. These statements are all without merit.
7 No. 33965-3-111 State v. Peterson
Finally, Mr. Peterson's counsel requests that this court excuse him from repaying
the State for the costs of this appeal. While the author of this opinion would deny the
request, a majority of the court has voted to grant the request.
The conviction is affirmed. Appellate costs are waived.
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.
WE CONCUR:
Pennell, J.