State Of Washington v. Damien R. Davis & Marcus A. Reed

• Court: Court of Appeals of Washington
• Decided: August 15, 2017
• Docket: 48324-6
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

August 15, 2017

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II STATE OF WASHINGTON, No. 48324-6-II

Respondent,

v. consolidated with

DAMIEN RAPHAEL DAVIS,

Appellant.

STATE OF WASHINGTON, No. 48520-6-II

v.

MARCUS ANTHONY REED, UNPUBLISHED OPINION

MELNICK, J. — Damien R. Davis and Marcus A. Reed were tried together and a jury

convicted them of murder in the first degree, two counts of assault in the second degree, and

burglary in the first degree, all with firearm enhancements. The jury also found Reed guilty of

unlawful possession of a firearm. Both Davis and Reed appeal their convictions, and Reed also

appeals his sentence as a persistent offender. They raise numerous other issues. We affirm. 48324-6-II / 48520-6-II

FACTS

I. THE INCIDENT

On March 28, 2013, Davis and Daniel Davis1 helped Reed’s sister move to a new

apartment. Subsequently, Davis received a call from his child’s mother, Kelsey Kelly. Davis,

Daniel, and Reed went to the Morgan Motel. Daniel and Reed went into a nearby store while

Davis went to the motel.

Kelly had been staying with Donald Phily at the Morgan Motel. When Davis visited Kelly,

Phily was also present. Phily and Kelly had electronic devices, including cell phones and

computers, and heroin out in the open. With Davis present, Kelly spoke to Phily about his friend

Keith. After Davis left, Kelly used heroin and fell asleep.

Davis, Daniel, and Reed returned to Davis and Daniel’s apartment. 2 On the way there,

Davis told them that his child was not at the motel, but he saw electronics in the room. That

evening, a man wanting to buy Percocet from Daniel, text messaged him. Daniel, Davis, and Reed

discussed robbing the man.

Reed and Davis went to Reed’s house to get a gun. They returned to the apartment with a

black 9 mm handgun. Daniel took the gun and placed it in Melynda Sue Davis-Orr’s purple

backpack. At some point, the three men left to pick up Reed’s friend, Ariel Abrejera,3 to have her

drive them around. When they realized the man seeking the Percocet from Daniel would not

1 Daniel Davis, a co-defendant, has the same last name as one of the appellants. For clarity we refer to Daniel by his first name. We intend no disrespect. 2 Daniel and Davis lived with Melynda Sue Davis-Orr, Daniel’s half-sister. 3 Abrejera’s testimony on events differed, but based on the issues raised on appeal, her testimony is not important. Abrejera pled guilty to murder in the first degree and robbery in the first degree. The State agreed to drop the murder charge if she testified truthfully.

2 48324-6-II / 48520-6-II

actually buy anything that evening, they returned to the apartment. They discussed robbing Phily

“because there was talk about how there was drugs and money in there, and we could sell the

electronics for money, too.” 6 Report of Proceedings (RP) at 745.

At some point, Reed had switched cars with his wife, and he took his yellow Crown

Victoria from her. Abrejera got into the car and drove. Reed sat in the front passenger seat, Daniel

sat behind the driver’s seat, and Davis sat in the other backseat. Daniel carried the loaded gun.

They brought the gun to intimidate Phily into giving them whatever he had. When they arrived at

the motel, Reed wanted the gun, and Daniel gave it to him. Davis told Daniel and Reed to knock

on the door and use the name Keith, a person Phily knew.

After parking at a nearby store, Abrejera and Davis stayed in the car. The plan was for

Daniel to enter the room first with Reed following while brandishing the gun. For about a minute,

Reed knocked on the door of Phily’s room and claimed he was Keith. The door opened, Daniel

pushed his way in, and Reed followed. Daniel and Phily began to scuffle and “the next thing

[Daniel knew, he] heard a gun go off.” 6 RP at 769.

Earlier in the evening, Phily’s friend, Kathy Devine, went to the motel with Mark

McGlothlen to visit Phily. While they were there, Kelly remained asleep on the bed. After hearing

a loud knocking on the motel door, Phily yelled to the people to leave. Kelly heard someone say

it was Keith. The door opened and two men entered. Devine saw one man with a gun against

McGlothlen’s head, and the other man with a gun struggle with Phily and shoot him.4 The gunshot

killed Phily.

4 Devine testified that there were two guns used in the crime, however, no one else testified about two guns.

3 48324-6-II / 48520-6-II

After Phily got shot, the shooter held the gun to McGlothlen’s face and said, “Give me

anything you got.” 3 RP at 377. The other man had Devine and Kelly gather electronics. Devine

stated that the gun was pointed at her, but she did not know if he meant to point it at her. She was

shocked and scared. She feared for her safety.

Kelly awoke around midnight to banging on the door of the motel room. Almost

immediately after the door opened, she heard a gunshot. Before that, Kelly turned and ran into the

bathroom because she was scared. One of the men came in and asked for some items, and she

responded that she did not know where they were located. Kelly stated that the man held a gun,

but she could not remember whether he pointed the gun at her. She feared for her safety. After

the man exited the bathroom, Kelly grabbed some of her belongings and ran out to her mother’s

house.

A few seconds after taking cell phones, laptops, and a wicker basket filled with

miscellaneous items, Daniel and Reed returned to the vehicle. Daniel had a gash on his arm. Reed

bragged about shooting Phily and apologized for hitting Daniel’s arm when he fired the shot. Days

later, Abrejera hid the gun.

II. CHARGES

The State charged Davis and Reed as principals, and in the alternative as accomplices, with

murder in the first degree (count I); robbery in the first degree (count II); two counts of assault in

the second degree (counts III, V); burglary in the first degree (count VI); unlawful possession of a

4 48324-6-II / 48520-6-II

firearm in the second degree (count VII).5 All counts included firearm enhancements, with the

exception of count VII.6

III. TRIAL

A. MOTION TO SEVER

In anticipation of the State offering Davis’s post-arrest statement to law enforcement, Reed

moved to sever defendants. Davis confessed to law enforcement that Reed had the idea to rob

someone, that they used Reed’s gun and car in the crime, that Reed and Daniel robbed the

occupants of the motel room, and that Reed shot Phily. Davis also stated that Reed bragged about

shooting Phily and apologized to Daniel for injuring him when he fired the shot.

Reed argued that the State’s redactions were insufficient to eliminate prejudice to him

because the statements still clearly referred to him. Davis did not object to the severance. The

State’s redactions changed references to Reed to, “the other guy,” “this one guy,” and “he.” See

e.g., Clerk’s Papers (CP) (Reed) at 76.

The trial court found that the redacted interview did not include direct reference to Reed,

and the statements did not violate the confrontation clause. The trial court denied Reed’s motion

to sever with the condition that the State redact any reference to the precise number of participants

in the crime. After the State made the ordered redactions, Reed maintained his objection. The

final redactions changed references to Reed to “he” or were omitted.

5 Count IV is not included in the second amended information. RCW 9A.32.030(1)(c) (count I); RCW 9A.56.190 and 9A.56.200(1)(a)(i) (count II); RCW 9A.36.021(1)(c) (counts III, V); RCW 9A.52.020(1)(a), (b) (count VI); RCW 9.41.040(2)(a) (count VII). 6 RCW 9.94A.530, RCW 9.94A.533.

5 48324-6-II / 48520-6-II

Before the trial court played Davis’s redacted statement to the jury, Reed renewed his

objection. The court gave a limiting instruction that the jury could consider the statement as

evidence against Davis, but not Reed.

B. FINDINGS OF FACT AND CONCLUSIONS OF LAW ENTERED ON CONFESSION HEARING

A different judge than the one trying the case held a hearing on the admissibility of Davis’s

confession and ruled it admissible. The State told the trial judge that the findings of fact and

conclusions of law from the hearing had not been entered. The State noted that the parties did not

dispute the facts. It provided the trial judge with proposed findings and conclusions and a copy of

the transcript from the hearing. The trial court stated, “I did read through the transcript, as well as

the State’s Findings of Fact and Conclusions of Law. When the parties think that they are prepared

to ask the Court for either a signature or some other action, please let me know.” 2 RP at 155-56.

Davis did not object and his lawyer signed the order entered by the trial court.

C. DANIEL’S PRIOR STATEMENT TO LAW ENFORCEMENT

On April 2, 2013, Daniel provided a taped statement to police. When he made the

statement, Daniel was under arrest for a Department of Corrections violation. Daniel gave the

following story to the police.

After Davis told Reed and Daniel about visiting Kelly and Phily, Reed tried to convince

Daniel to rob Phily, but Daniel refused. Eventually, Reed scared Daniel into robbing Phily.

Abrejera and Davis stayed in the car. When Reed and Daniel reached the motel room, Daniel

entered first, and a few seconds later the gun went off. Reed shot Phily. Reed pointed the gun at

Daniel to grab whatever he could, and Daniel feared Reed would shoot him. Daniel grabbed

whatever he could from the room and ran back to the car. When they returned to the apartment,

Reed bragged that he shot Phily.

6 48324-6-II / 48520-6-II

Daniel testified at trial that he participated in planning the crime to rob Phily. He claimed

Davis originated the idea. Daniel admitted that he and Reed were the men who entered the motel

room, but claimed Reed carried the gun and shot Phily. He admitted that they took cell phones

and laptops from the motel room.

On cross-examination, Daniel admitted that the State offered him a plea agreement with a

significantly lesser sentence if he testified truthfully at trial. He admitted that he initially lied to

police when he told them that he participated in the crimes because Reed threatened him and he

believed Reed would kill him if he did not participate. He admitted he lied to the police because

he hoped they would make him a deal.

Both Davis and Reed cross-examined Daniel on whether his plea agreement allowed him

to reduce a potential sentence of 60 to 70 years of confinement. Davis asked, “And what you are

really hoping to do is convince the prosecutor that you are a helpful witness, so that you can get

the deal, right? . . . Aren’t you just saying things that you think are going to help to keep you from

going to prison for a long time?” 7 RP at 992.

The State moved to admit the audio recording of Daniel’s arrest statement as a prior

consistent statement. Davis conceded that the statement in question occurred before the proffer or

the plea agreement. The trial court admitted the statement as a prior consistent statement, because

the defendants challenged the credibility of the witness and the prior statement predated a motive

to lie.

D. DAVIS-ORR TESTIMONY

Davis-Orr initially testified that either Reed, Davis, or Daniel said he wanted to rob

somebody, but she could not recall who made the statement. She did recall that all three of them

were conversing at the time.

7 48324-6-II / 48520-6-II

On cross-examination, Davis-Orr testified that she never told the police that she heard

anyone say they were going to rob somebody. She responded that she actually did not know who

specifically said they wanted to commit a robbery.

On redirect, Davis-Orr again testified she did not recall anyone saying they were going to

rob somebody. The State asked whether Davis-Orr based her conclusion that they were going to

rob someone on her observations. Reed objected on the basis of “speculation.” 9 RP at 1266. The

trial court overruled the objection. The State again asked a similar question. Davis objected,

arguing the question included multiple questions, was vague, and also constituted improper

speculation and opinion. The trial court overruled the objections. On further redirect, Davis-Orr

testified that she told law enforcement, “I kind of already figured that they did a robbery, but I

didn’t know it was a murder.” 9 RP at 1270-71.

After Davis-Orr completed her testimony and outside the presence of the jury, Reed raised

the issue that the testimony constituted improper opinion evidence and improper impeachment.

Davis joined in the objection. The State responded that the evidence was not offered as

impeachment evidence. It was offered to demonstrate that she deduced they committed a robbery

based on her observations.

The trial court stated that

because what the State did was an attempt to rehabilitate a witness who expressed herself, and also demonstrated consistent poor memory about the events of that particular night, based on the questions that were asked by defense counsel, I believe that the statement there was proper in that form of rehabilitation, given what the cross-examination was.

9 RP at 1275.

8 48324-6-II / 48520-6-II

E. JURY INSTRUCTIONS

The court gave a limiting instruction to the jury on Davis-Orr’s testimony:

Certain evidence has been admitted in this case for only a limited purpose. This evidence consists of testimony by [Davis-Orr] that she “. . . figured that they had done a robbery,” and may be considered by you only for the purpose of evaluating the state of mind of [Davis-Orr]. You may not consider it for any other purpose. Any discussion of the evidence during your deliberations must be consistent with this limitation.

CP (Davis) at 271 (Instr. 11). Both Reed and Davis objected to this instruction on the basis that

Davis-Orr’s state of mind was irrelevant. However, Davis acknowledged that he would rather

have the instruction than not.

In addition, the court instructed the jury:

The State must prove an accomplice had general knowledge of the charged crime. The State is not required to prove the accomplice had knowledge of every element of the charged crime. Thus, the State must prove beyond a reasonable doubt an accomplice in a charged crime of robbery in the first degree had general knowledge of the crime of “robbery.” The State is not required to prove an accomplice had knowledge that another participant would be armed with a deadly weapon or would inflict bodily injury. The State must prove beyond a reasonable doubt an accomplice in a charged crime of burglary in the first degree had general knowledge of the crime of “burglary.” The State is not required to prove an accomplice had knowledge that another participant would be armed with a deadly weapon or would assault any person. The State must prove beyond a reasonable doubt an accomplice in a charged crime of assault in the second degree had general knowledge of the crime of “assault.” The State is not required to prove an accomplice had knowledge the assault would be committed with a deadly weapon.

CP (Davis) at 280 (Instr. 20).7

F. CLOSING ARGUMENTS

7 Davis challenges this jury instruction and quotes it in his brief, but miscited the instruction as jury instruction 23.

9 48324-6-II / 48520-6-II

While describing the concept of reasonable doubt in closing argument, the prosecutor

began to make an analogy to a puzzle. Both Davis and Reed objected, arguing that the analogy

trivialized and misstated the State’s burden of proof.

Outside the presence of the jury, the trial court heard arguments on the objections. The

trial court acknowledged that the puzzle analogy had come under criticism of reviewing courts,

but overruled the objection.

The jury returned and the prosecutor continued to argue the analogy:

Think about going on a ferry, and for those that have gone on a ferry, oftentimes there are puzzles on a table left behind. . . . Imagine no box, and so you don’t know what the image is. You sit down to do a puzzle and you are putting it together and there are pieces and you just don’t know what to do with them. You have tried it on every conceivable spot. You can’t figure it out, so you set it aside. There may have been pieces of the puzzle that, frankly, were gone before you even sat down to do the puzzle. You may at some point get to the point of putting together that puzzle and realize what the image is. And you are confident beyond a reasonable doubt as to what that image is, even though, maybe again, there were pieces that disappeared before you even sat down, even though there are pieces that you had to set aside because you don’t know what to do with. Now, take that concept and think about this trial, because a trial is in many respects like putting together a puzzle. You are offered a large quantity of evidence, like pieces of a puzzle, and those pieces of evidence are intended to be put together in such a fashion that when you view them in total there is an image that convinces you beyond a reasonable doubt as to the defendant’s guilt. You may have pieces of evidence, like pieces of a puzzle, you just don’t know what to do with, right? It may be an entire witness’s testimony that you just can’t make heads nor tails of. It may be only parts of a witness’s testimony that you just can’t make heads nor tails of, so that witness or what he or she had to say, you just disregard. Likewise, there may be pieces of evidence or pieces of a puzzle that you never receive in the first place, that you can conceive that might exist out there somewhere in the ether, but you didn’t hear about it. And yet, still the question for all of you is the evidence that you have received, those pieces of the puzzle, when you have put all of that evidence together are you convinced beyond a reasonable doubt as to the image? And the image here is the defendant’s guilt of the charged crimes. So I offer that to you as one way to think about proof beyond a reasonable doubt.

13 RP at 1786-87.

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The State argued that Reed and Davis could both be found guilty as accomplices, but if the

jury found Reed shot the gun, he was also guilty as a principal. The prosecutor also argued:

Now, let’s focus on the central issue in this case. There is really only one, because when you think about this central issue, you came to realize that if [Davis] and [Reed] were party to a robbery, they are guilty of the charged offenses here. If they were party to a robbery, their guilt as to each of these offenses flows naturally.

13 RP at 1787. Reed objected to this statement, but the trial court overruled the objection. The

prosecutor continued,

If I shoot someone in your presence, guess what? You are scared out of your mind that you might be next. And so, when [Devine] and [Kelly] witnessed [Phily] shot inexplicably with a gun and he is dying in front of them, are they victims of an assault at that moment? Absolutely. Absolutely. The men who have come into that room have put them in fear for their lives. And again, that assault was perpetrated with a firearm, and it is the very act of coming into that room and shooting [Phily] in their presence with [Devine] and [Kelly] watching, watching that gun go off, and if they didn’t see the gun, watching him be shot, and if they don’t see him watching him be shot, hearing him, watching him stumble to the ground, clearly having been shot by a gun, the men in the room with a gun, they are victims of an assault, and that assault has been perpetrated with a gun, with a firearm.

13 RP at 1813.

In rebuttal, the prosecutor argued:

It’s my opportunity to respond to the arguments of [defense counsel], and to that end I want you to understand, and I’m sure that you appreciate, the State, both myself and [co-counsel], have a great deal of respect for [defense counsel] and the job that they do. Everyone who is charged with a crime is entitled to representation. And everyone is entitled to vigorous representation and an advocate that will fight for you, but don’t confuse vigorous advocacy with there being any merit to what [defense counsel] said to you during their comments.

13 RP at 1878. Reed objected to the statement, but the trial court overruled the objection.

The prosecutor also argued in rebuttal:

The act that [Reed] and Daniel Davis did, the act that they did that makes them responsible for Second Degree Assaults for [Devine] and [Kelly], the act, it’s barging into the room. That is an act, barging into a room. They are there. They are guests. This is a happy place. It’s supposed to be a happy place, and two men,

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uninvited, forced their way in. That’s an act, and then one of those men has a gun, and then one of those men shoots [Phily]. . . . What’s the act they did? That’s the act. The act of invading that space, one of them armed with a gun, one of them shooting [Phily]. . . . What is the definition of assault? Any act that puts one in a reasonable apprehension of harm. Were [Kelly] and [Devine] in those moments assaulted? Absolutely. Were they put in fear for their safety? Absolutely. And was part of the fear for their safety, is it because one of the men was armed with a deadly weapon? Absolutely. That’s what makes them victims of Second Degree assault.

13 RP at 1889-90.

IV. VERDICT AND SENTENCE

The jury found Davis and Reed guilty of murder in the first degree (count I), both counts

of assault (count III, V), and burglary in the first degree (count VI). The jury also found Reed, but

not Davis, guilty of unlawful possession of a firearm (count VII). The jury found Davis and Reed

not guilty of robbery in the first degree (count II). The jury found that Davis and Reed were armed

with a firearm on every count, with the exception of Reed’s unlawful possession of a firearm

conviction.

The trial court sentenced Davis to a total of 642 months of confinement. The trial court

admitted certified copies of the judgment and sentences from Reed’s prior convictions for robbery

in the second degree and robbery in the first degree in 2007, and a conviction for robbery in the

second degree in 2009. Based on these convictions, the trial court determined that Reed was

subject to sentencing as a persistent offender. The trial court sentenced Reed to confinement for

life without the possibility of release as a persistent offender.

Reed and Davis both appeal.

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ANALYSIS

I. DAMIEN DAVIS

A. KNOWLEDGE JURY INSTRUCTION FOR ACCOMPLICE LIABILITY

Davis argues that he received ineffective assistance of counsel when his lawyer did not

offer an instruction defining knowledge as the word is used in the accomplice liability instruction.8

We disagree.

1. Legal Principles

Jury instructions are appropriate if they allow the parties to argue their theories of the case,

do not mislead the jury, and do not misstate the law. State v. Stevens, 158 Wn.2d 304, 308, 143

P.3d 817 (2006). We review de novo whether the jury instructions, when read as a whole,

adequately state the applicable law. State v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006).

“[J]ury instructions read as a whole must make the relevant legal standards manifestly apparent to

the average juror.” State v. Marquez, 131 Wn. App. 566, 575, 127 P.3d 786 (2006).

The Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington Constitution guarantee the right to effective assistance of counsel. Strickland v.

Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165

Wn.2d 870, 883, 204 P.3d 916 (2009). To prevail on a claim of ineffective assistance of counsel,

the defendant must show both (1) that defense counsel’s representation was deficient, and (2) that

the deficient representation prejudiced the defendant. State v. Grier, 171 Wn.2d 17, 32-33, 246

P.3d 1260 (2011) (applying Strickland, 466 U.S. at 685-86). Representation is deficient if after

8 Davis also assigns error to the trial court’s failure to instruct the jury on the definition of knowledge in the accomplice liability instruction. This issue is addressed within this section.

13 48324-6-II / 48520-6-II

considering all the circumstances, the performance “‘falls below an objective standard of

reasonableness.’” Grier, 171 Wn.2d at 33 (quoting Strickland, 466 U.S. at 688). Prejudice exists

if there is a reasonable probability that except for counsel’s errors, the result of the proceeding

would have differed. Grier, 171 Wn.2d at 34.

An appellant faces a strong presumption that counsel’s representation was effective. Grier,

171 Wn.2d at 33. Legitimate trial strategy or tactics cannot serve as the basis for a claim of

ineffective assistance of counsel. State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009).

“Conversely, a criminal defendant can rebut the presumption of reasonable performance by

demonstrating that ‘there is no conceivable legitimate tactic explaining counsel’s performance.’”

Grier, 171 Wn.2d at 33 (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)).

The defense counsel’s strategic decisions must be reasonable. Grier, 171 Wn.2d at 34.

2. Davis Did Not Receive Ineffective Assistance

Davis argues that his attorney’s failure to request WPIC 10.029 as an instruction constituted

deficient performance because the word knowledge was used in the accomplice instruction. WPIC

10.02 states:

A person knows or acts knowingly or with knowledge with respect to a [fact] [circumstance] [or] [result] when he or she is aware of that [fact] [circumstance] [or] [result]. [It is not necessary that the person know that the [fact] [circumstance] [or] [result] is defined by law as being unlawful or an element of a crime.] If a person has information that would lead a reasonable person in the same situation to believe that a fact exists, the jury is permitted but not required to find that he or she acted with knowledge of that fact. [When acting knowingly [as to a particular fact] is required to establish an element of a crime, the element is also established if a person acts intentionally [as to that fact].]

9 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 10.02, at 206 (3d ed. 2008) (WPIC).

14 48324-6-II / 48520-6-II

To constitute ineffective assistance of counsel, we must determine whether (1) the

defendant was entitled to the instruction; (2) failure to offer the instruction was tactical; and (3) if

the defendant was prejudiced by the failure to offer the instruction. State v. Powell, 150 Wn. App.

139, 154-58, 206 P.3d 703 (2009).

Due process requirements are met when a trial court instructs the jury on all elements of

an offense and that unless each element is established beyond a reasonable doubt, the defendant

must be acquitted. State v. Scott, 110 Wn.2d 682, 690, 757 P.2d 492 (1988). Further, “‘[t]he court

in the trial of a criminal case is required to define technical words and expressions, but not words

and expressions which are of ordinary understanding and self-explanatory.’” Scott, 110 Wn.2d at

689 (quoting State v. Lyskoski, 47 Wn.2d 102, 111, 287 P.2d 114 (1955)) (internal quotations

omitted).

The exact argument Davis makes in this case has been rejected. The failure to define

knowledge, is not error. Scott, 110 Wn.2d at 687. In Scott, an accomplice complained that the

failure to define “knowledge” for the jury, as it was used in the accomplice instruction, constituted

error. 110 Wn.2d at 691. The court disagreed because “knowledge” is not a technical term that

requires a jury to be instructed on its meaning, even though WPIC 10.51 recommends its use.

Scott, 110 Wn.2d at 692. Therefore, because the trial court need not have instructed the jury on

the definition of knowledge for accomplice liability, we conclude that Davis’s counsel was not

deficient by failing to request the instruction.

Davis claims he was prejudiced by his attorney’s failure to request a definitional instruction

because “the jury was not told that it could find that he did not act with the knowledge that he was

aiding in a crime despite what a reasonable person would have believed in the same situation.” Br.

of Appellant Davis at 31. He also argues that if his attorney had proposed the instruction, his

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attorney could have “expanded” his closing argument that Davis did not know the extent of the

crime. Br. of Appellant Davis at 30.

As analyzed above, the failure to request a definitional instruction did not constitute

deficient performance. Even if it did, Davis has not shown prejudice. Davis’s theory was that he

tried to stop the crime from occurring, not that he did not have knowledge of it. He made that

point in closing argument. Therefore, we conclude that the trial court did not err by failing to give

an instruction defining knowledge, and that Davis failed to show he received ineffective assistance

of counsel.

B. CrR 3.5 HEARING FINDINGS OF FACT AND CONCLUSIONS OF LAW

Davis argues that the trial court exceeded its authority by entering findings of fact and

conclusions of law for a CrR 3.5 hearing heard by a predecessor judge. We disagree.10

Under RCW 2.28.030(2), a judicial officer is disqualified from acting as a judge when “he

or she was not present and sitting as a member of the court at the hearing of a matter submitted for

its decision.” The general rule is that “a successor judge is without authority to enter findings of

fact on the basis of testimony heard by a predecessor judge.” State v. Bryant, 65 Wn. App. 547,

549, 829 P.2d 209 (1992). “The rule is applied even where the prior judge had entered an oral

decision . . . or a memorandum decision.” Bryant, 65 Wn. App. at 549. “‘Taken together, the case

law and [court] rules set forth the rule that a successor judge only has the authority to do acts which

do not require finding facts. Only the judge who has heard evidence has the authority to find

facts.’” In re Marriage of Crosetto, 101 Wn. App. 89, 96, 1 P.3d 1180 (2000) (quoting Bryant, 65

Wn. App. at 550).

10 The State argues the issues is waived because of the invited error doctrine. State v. Case, 187 Wn.2d 85, 384 P.3d 1140 (2016). We disagree and consider the issue on the merits.

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Nevertheless, the parties may agree to allow a successor judge to make findings of fact

based on the evidence in the record. Crosetto, 101 Wn. App. at 96. Crosetto held that “there is

no necessity for a new trial where, as here, the parties agree to allow the successor judge to rely

on the record. Therefore, we hold that the successor judge did not abuse his discretion in making

findings of fact based upon the original record.” 101 Wn. App. at 98.

Here, it is clear that the successor judge made findings after reading the transcript from the

hearing and made findings. There were no disputed facts adduced at the hearing. Therefore, there

was no error by the successor judge in entering the findings of fact and conclusions of law.

II. MARCUS REED

A. SEVERANCE MOTION AND CONFRONTATION CLAUSE

Reed argues that the trial court erred by denying his severance of defendants motion

because the redaction of Davis’s statements did not protect Reed’s right to confrontation. Reed

also argues that the violation of his right to confrontation was not harmless.11

We conclude that the trial court erred by denying the motion to sever because some of the

redactions to Davis’s statement were insufficient and violated Reed’s right to confrontation.

However, the error was harmless beyond a reasonable doubt. Thus, the trial court’s denial of

Reed’s motion to sever is not reversible error.

11 In his Statement of Additional Grounds (SAG), Reed makes the same arguments on this issue as did his appellate counsel.

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1. Standard of Review and Legal Principles

a. Severance Generally

“Separate trials are not favored in this state.” State v. Dent, 123 Wn.2d 467, 484, 869 P.2d

392 (1994); State v. Campbell, 78 Wn. App. 813, 819, 901 P.2d 1050 (1995). Severance of

defendants is discretionary with the trial court. Dent, 123 Wn.2d at 484-85. We review a trial

court’s decision on a motion for severance under CrR 4.4(c) for a manifest abuse of discretion.

State v. Rodriguez, 163 Wn. App. 215, 228, 259 P.3d 1145 (2011); State v. Wood, 94 Wn. App.

636, 641, 972 P.2d 552 (1999). A trial court abuses its discretion when its decision is manifestly

unreasonable, or exercised on untenable grounds, or for untenable reasons. State v. Barry, 184

Wn. App. 790, 802, 339 P.3d 200 (2014).

The defendant “must be able to point to specific prejudice” to support a claim that the trial

court abused its discretion. Wood, 94 Wn. App. at 641. “‘Defendants seeking severance have the

burden of demonstrating that a joined trial would be so manifestly prejudicial as to outweigh the

concern for judicial economy.’” State v. Moses, 193 Wn. App. 341, 359, 372 P.3d 147, review

denied, 186 Wn.2d 1007 (2016) (quoting State v. Bythrow, 114 Wn.2d 713, 718, 790 P.2d154

(1990)).

We review alleged violations of the confrontation clause de novo. Moses, 193 Wn. App.

at 356. The Sixth Amendment to the United States Constitution states: “In all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against

him.”

b. Bruton Issues

Under the confrontation clause, out-of-court testimonial statements by non-testifying

witnesses are barred because of their prejudicial impact unless the declarant is unavailable and the

18 48324-6-II / 48520-6-II

defendant had a prior opportunity to cross-examine the witnesses. Crawford v. Washington, 541

U.S. 36, 54-55, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Bruton v. United States, 391 U.S. 123,

126, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) held that a criminal defendant is denied his right of

confrontation when a nontestifying codefendant’s confession that names the defendant as a

participant in the crime is admitted at a joint trial, even where the court instructs the jury to consider

the confession only against the codefendant.

CrR 4.4(c) insures compliance with Bruton. It provides,

(1) A defendant’s motion for severance on the ground that an out-of-court statement of a codefendant referring to him is inadmissible against him shall be granted unless: .... (ii) deletion of all references to the moving defendant will eliminate any prejudice to him from the admission of the statement.

“‘[T]he United States Supreme Court held [in Bruton] that the defendant was deprived of

his confrontation rights under the Sixth Amendment when he was incriminated by a pretrial

statement of a codefendant who did not take the stand at trial.” State v. Hoffman, 116 Wn.2d 51,

75, 804 P.2d 577 (1991). “But in Richardson v. Marsh, 481 U.S. 200, 208, 107 S. Ct. 1702, 95 L.

Ed. 2d 176 (1987), the United States Supreme Court held that a confession redacted to omit all

reference to the codefendant fell outside Bruton’s prohibition because the statement was ‘not

incriminating on its face’ and became incriminating ‘only when linked with evidence introduced

later at trial (the defendant’s own testimony).’” Moses, 193 Wn. App. at 356-57.

“Bruton applies to inculpatory statements.” Moses, 193 Wn. App. at 357. The Bruton

Court recognized the “powerfully incriminating” effect of the extrajudicial statements of a

codefendant “who stands accused side-by-side with the defendant.” 391 U.S. at 135-36. “Not

only are the statements ‘devastating to the defendant, but their credibility is inevitably suspect.’”

19 48324-6-II / 48520-6-II

Moses, 193 Wn. App. at 357 (quoting Bruton, 391 U.S. at 135-36). However, “[s]tatements that

do not incriminate a codefendant are not subject to the Bruton rule.” Moses, 193 Wn. App. at 357.

“[A] non-testifying codefendant’s statement violates the confrontation clause unless

certain criteria are met when redacting the statement.” Moses, 193 Wn. App. at 357. “Redacted

statements must be (1) facially neutral, i.e., not identify the non-testifying defendant by name

(Bruton[, 391 U.S. 123] ); (2) free of obvious deletions such as ‘blanks’ or ‘X’ (Gray [v. Maryland,

523 U.S. 185, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998)] ); and (3) accompanied by a limiting

instruction (Richardson[, 481 U.S. 200]).” Moses, 193 Wn. App. at 357 (internal quotation marks

We rejected the use of an “other guy” redaction where only two accomplices committed

the crime and only two defendants were on trial. State v. Vincent, 131 Wn. App. 147, 154, 120

P.3d 120 (2005). Yet State v. Medina approved the admission of the codefendant’s statement

because the redactions were so varied among six possible accomplices (“‘other guys,’ ‘the guy,’

‘a guy,’ ‘one guy,’ and ‘they’”) that the redactions did not clearly imply whether the codefendant’s

statement referred to either the appellant or the other codefendant. 112 Wn. App. 40, 51, 48 P.3d

1005 (2002).

In State v. Fisher, 185 Wn.2d 836, 845, 374 P.3d 1185 (2016), the court held that:

the exact form of the redaction is not dispositive. Rather, under [Richardson] and Gray, the question is whether the redaction obviously refers to the defendant. We decline to adopt the bright line rule of some circuit courts that a neutral pronoun always satisfies Bruton and instead hold that whatever the form of the redaction, it must be clear that the redaction does not obviously refer to the defendant.

2. Redactions

Based on the preceding, we review the State’s redactions to Davis’s statement. Throughout

the redacted version of Davis’s statement, Reed’s name was replaced with “he” or omitted.

20 48324-6-II / 48520-6-II

Reed challenges some specific statements. He challenges Davis’s statements regarding

Reed looking for someone to rob, Reed’s seating position in the vehicle, Reed’s apologies after

the crime for shooting Phily, that they helped Reed’s sister move, and that Reed switched cars with

his wife.

Reed also challenges the redactions in general terms based on the use of “he” throughout

the statement. We need not consider the other instances from the interview because he did not

properly raise them. Moses, 193 Wn. App. at 357; RAP 10.3(a)(6). It is Reed’s obligation to point

to the specific parts of the record he claims constitutes error. RAP 10.3(a)(6). “‘Without adequate,

cogent argument and briefing, [this court will] not consider an issue on appeal.’” Moses, 193 Wn.

App. at 357 n.10 (quoting Schmidt v. Cornerstone Invs., Inc., 115 Wn.2d 148, 160, 795 P.2d 1143

Here, we conclude that a number of the redactions were inadequate because the statements

referred to a woman and Daniel, accomplices to the crimes. Because the crimes involved four

defendants, and because Davis made the statement, it was clear that “he” must have referred to

Reed as the final and fourth accomplice. Thus, these statements violated the confrontation clause.

Vincent, 131 Wn. App. at 154. Yet the error here was harmless because overwhelming

independent evidence demonstrated Reed’s involvement in the crimes. See Vincent, 131 Wn. App.

at 154-55.

The statements challenged by Reed on appeal that violated Bruton include: When Davis

stated, “[w]e pulled up, he went inside, grabbed the gun, came back . . . to the car.” Ex. 70A, at 9.

After they retrieved the gun, Davis explained:

That’s when we got to um, go to Melynda’s so he can give Danny the gun to put up, to stash while we’re helping his sister move. He didn’t want to travel with the gun, you know, up and down the street. So he gave Danny the gun, cause

21 48324-6-II / 48520-6-II

Danny didn’t want to help move, so he’s like well just hold this, stay here, you know, hold it til I come back home, you know, don’t leave.

Ex. 70A, at 9.

Another statement includes when Davis stated exactly where the occupants of the vehicle

sat on the way to the motel:

[Detective]: When does, when she gets in the car, does she get in the driver’s seat? Davis: Yeah. He wanted her to drive. [Detective]: Okay. And he’s sitting in the front passenger? Davis: Um-hum. [Detective]: You’re behind the driver? Davis: No, passenger. [Detective]: You’re behind the passenger and Danny’s behind the driver? Davis: Yes.

Ex. 70A, at 18.

The third statement that violated Bruton was when Davis described being around other

people at their apartment after the shooting:

Well I wanted, I wanted to tell him to shut up, but Danny . . . kinda like, like telling him to shut up, don’t be talking about this around these people because, you know, everybody doesn’t need to know, you know. But he still was, I, I didn’t mean to shoot him, but he, he rushed me man. I, I mean I told you, I’m not scared.

Ex. 70A, at 27.

The final statement that violated Bruton was when Davis stated: “Cause the gun was at

Melynda’s, like, you know, he gives it to Danny so he’s not driving with the gun, so he don’t, he’s

not scared to drive around, but he’s you know, probably scared to drive around with a, with a gun.”

Ex. 70A, at 32.

However, there are a number of other statements challenged by Reed which do not violate

Bruton because they are either non-incriminatory, facially neutral, or they do not clearly identify

Reed without the help of other evidence. Moses, 193 Wn. App. at 357. These statements include

when Davis described Reed’s plan to rob the man calling to purchase Percocet, Davis’s description

22 48324-6-II / 48520-6-II

of helping Reed’s sister move, and when Davis told law enforcement that they used the yellow

car, not a white SUV they rode in earlier.

Therefore, because many of the challenged portions of Davis’s statement included obvious

references to Reed as the final accomplice, the redactions violated Reed’s right to confrontation.

Although the trial court provided the necessary limiting instruction, the use of Davis’s redacted

statement violated Reed’s confrontation rights under Bruton and its progeny. Accordingly, the

trial court erred by admitting Davis’s redacted statements.

3. Harmless Error

Confrontation clause violations are subject to a constitutional harmless error analysis.

Fisher, 185 Wn.2d at 847. A constitutional error is harmless if we are persuaded beyond a

reasonable doubt that the jury would have reached the same result in absence of the error. State v.

Watt, 160 Wn.2d 626, 635, 160 P.3d 640 (2007). “The test is whether the untainted evidence was

so overwhelming that it necessarily leads to a finding of guilt.” Fisher, 185 Wn.2d at 847.

Here, untainted, overwhelming evidence existed against Reed. That evidence includes the

following. Daniel and Abrejera each testified to Reed’s involvement in the crimes, including

looking to rob someone that evening. Daniel testified that Reed retrieved the gun used from his

house. The gun used in the crime was registered to Reed’s former father-in-law. The car used in

the crime was Reed’s car. When they arrived at the motel, Reed wanted the gun, and Daniel gave

it to him. Daniel identified Reed as the shooter. Therefore, we conclude that the confrontation

clause violation was harmless beyond a reasonable doubt and the trial court’s denial of Reed’s

motion to sever does not warrant reversal.

23 48324-6-II / 48520-6-II

B. DAVIS-ORR’S TESTIMONY

Reed argues that the trial court erred by admitting Davis-Orr’s testimony because she

provided an opinion on his guilt. The State argues the issue is not preserved for review.

We need not decide if the trial court erred by admitting the testimony because even if it

did, any error was harmless.

This issue has been preserved for appeal. Under RAP 2.5(a), a defendant generally may

not raise an error for the first time on appeal unless it is a manifest constitutional error. State v.

Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007). A trial court commits constitutional error by

allowing improper opinion testimony, but such an error is not manifest from the appellate record

if the jury was properly instructed that it alone must determine the facts and credibility of

witnesses. State v. Montgomery, 163 Wn.2d 577, 595, 183 P.3d 267 (2008). The jury was

instructed in such a way.

An appellant must make his own objection and cannot rely on a codefendant’s objection to

preserve the error for appeal. State v. Davis, 141 Wn.2d 798, 850, 10 P.3d 977 (2000). Initially,

Reed’s counsel objected to Davis-Orr’s testimony on the basis of speculation during redirect

examination. Davis objected on the basis of improper opinion. Davis and Reed challenged Davis-

Orr’s statement that the men planned to rob someone. On further redirect, Davis-Orr testified that

she “kind of already figured that they did a robbery.” 9 RP at 1271. The trial court provided a

limiting instruction regarding this testimony. Immediately after the testimony, the jury was

excused for recess, and the parties had a colloquy with the trial court. During that colloquy, Reed

objected to Davis-Orr’s testimony on the basis of improper opinion. “Where, however, the

litigants have advanced the issue below, giving the trial court an opportunity to rule on relevant

authority, and the court does so rule, it may not be necessary to object at the time of admission of

24 48324-6-II / 48520-6-II

the claimed erroneous evidence in order to preserve the issue for appeal.” State v. Sullivan, 69

Wn. App. 167, 170, 847 P.2d 953 (1993). Therefore, we conclude that Reed preserved the issue

for appeal.

“Trial courts are afforded broad discretion in deciding whether to admit evidence, including

testimony.” State v. Olmedo, 112 Wn. App. 525, 530, 49 P.3d 960 (2002). We review a trial

court’s decision to admit or deny evidence for an abuse of discretion. Olmedo, 112 Wn. App. at

530. A trial court abuses its discretion only if no reasonable person would adopt the view espoused

by the trial court. Olmedo, 112 Wn. App. at 530.

Even if the trial court abused its discretion by admitting Davis-Orr’s testimony, we

conclude that any error was harmless. “Permitting a witness to testify as to the defendant’s guilt

raises a constitutional issue because it invades the province of the jury and the defendant’s

constitutional right to a trial by jury.” Olmedo, 112 Wn. App. at 533. An error of constitutional

magnitude is presumed prejudicial, and the State bears the burden of proving the error was

harmless beyond a reasonable doubt. State v. Spotted Elk, 109 Wn. App. 253, 261, 34 P.3d 906

(2001). “A constitutional error is harmless only when the untainted evidence provides an

overwhelming conclusion of guilt.” Olmedo, 112 Wn. App. at 533.

If the court erred, it was harmless. First, the jury did not convict Davis or Reed for the

robbery charge. In addition, the trial court provided a limiting instruction on Davis-Orr’s

testimony instructing that her testimony that she “. . . figured that they had done a robbery,” could

only be considered for the purpose of evaluating her state of mind. CP (Davis) at 271 (Instr. 11).

As outlined in the facts above, the untainted evidence was overwhelming that Reed, Davis, and

Daniel planned and carried out assaults while armed with a loaded gun. They did so in an effort

to intimidate Phily into giving them whatever property he possessed. Daniel and Reed took items

25 48324-6-II / 48520-6-II

from Phily and shot him when they entered the motel room. Therefore, since we presume the jury

follows its instructions, our review of the entire record and the other overwhelmingly untainted

evidence shows that if an error occurred, it was harmless beyond a reasonable doubt. State v.

Anderson, 153 Wn. App. 417, 428, 220 P.3d 1273 (2009).

C. IMPOSITION OF PERSISTENT OFFENDER SENTENCE

Reed argues that the trial court erred by imposing a persistent offender sentence without a

jury finding on his prior offenses because it deprived him of his right to a jury trial and due process.

Reed bases his argument on recent United States Supreme Court decisions. However, he

also acknowledges that the “Washington Supreme Court has rejected the argument Reed makes

here.” Br. of Appellant Reed at 32. He is correct that our Supreme Court rejected his argument,

and thus, his claim fails.

1. Standard of Review

A persistent offender is a person who has been convicted in Washington of a most serious

offense, and has on at least two other prior occasions been convicted of a most serious offense in

this or any other state. RCW 9.94A.030(38)(a). The Persistent Offender Accountability Act

(POAA) states that a persistent offender shall be sentenced to life imprisonment without the

possibility of release. RCW 9.94A.570. We review alleged constitutional violations de novo.

State v. Siers, 174 Wn.2d 269, 273-74, 274 P.3d 358 (2012).

2. The Trial Court Did Not Err

The Sentencing Reform Act of 1981 (SRA) requires the trial court to conduct a sentencing

hearing. RCW 9.94A.500(1). “The trial court must decide by a preponderance of the evidence

whether a defendant has a criminal history and specify the convictions it has found to exist.” State

26 48324-6-II / 48520-6-II

v. Knippling, 141 Wn. App. 50, 55, 168 P.3d 426 (2007), aff’d, 166 Wn.2d 93, 206 P.3d 332

(2009). “‘Sentencing under the persistent offender section of the SRA raises two questions of fact,

whether certain kinds of prior convictions exist and whether the defendant was the subject of those

convictions.’” Knippling, 141 Wn. App. at 55-56 (quoting State v. Lopez, 107 Wn. App. 270, 278,

27 P.3d 237 (2001) (internal quotations omitted).

A defendant has a constitutional right to a trial by jury. U.S. CONST. amend VI; WASH.

CONST. art. I, § 21. However, sentencing under the POAA does not violate a defendant’s right to

a jury trial or due process. State v. Witherspoon, 180 Wn.2d 875, 893-94, 329 P.3d 888 (2014).

Specifically, Reed relies on the U.S. Supreme Court decisions that state any fact that

increases the penalty for a crime must be submitted to a jury. Alleyne v. United States, ___ U.S.

___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013); Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.

2348, 147 L. Ed. 2d 435 (2000); Almendarez–Torres v. United States, 523 U.S. 224, 118 S. Ct.

1219, 140 L. Ed. 2d 350 (1998).

Our Supreme Court recently considered the cases relied on by Reed and rejected this issue.

Witherspoon, 180 Wn.2d at 894. In State v. Langstead, 155 Wn. App. 448, 453, 228 P.3d 799

(2010), we stated that “[b]ecause of the exception for ‘the fact of a prior conviction,’ there is no

violation of the Sixth Amendment or the due process clause of the Fourteenth Amendment when

a judge determines by a preponderance of the evidence that a defendant has two prior ‘strikes’ for

purposes of the Persistent Offender Accountability Act.” Therefore, we conclude that the trial

court did not err by finding by a preponderance of the evidence that Reed had at least two prior

most serious offenses that counted as strikes under the POAA.

27 48324-6-II / 48520-6-II

D. EQUAL PROTECTION—PERSISTENT OFFENDER SENTENCE

Reed argues that the trial court erred by classifying the persistent offender finding as an

aggravator or sentencing factor instead of an element because it violated his right to equal

protection. We disagree.

Under both the state and federal constitutions, persons similarly situated with respect to the

legitimate purpose of the law must receive like treatment. U.S. CONST. amend. XIV; WASH.

CONST. art. I, § 12. We review the legislative classification for a rational basis when the

classification does not involve a suspect class or threaten a fundamental right. State v. Manussier,

129 Wn.2d 652, 673, 921 P.2d 473 (1996), cert. denied, 520 U.S. 1201 (1997).

We have rejected similar arguments. In Langstead, we held that there existed a rational

basis to distinguish between prior convictions that are used to prove an element of a crime and

prior convictions that are used to prove an aggravating factor for sentencing. 155 Wn. App. at

455-57. Therefore, we conclude that because a rational basis exists for the classification, the trial

court did not violate Reed’s equal protection rights, and his claim fails.

III. COMMON ISSUES A. SUFFICIENCY OF THE EVIDENCE

Davis and Reed argue that insufficient evidence supports their convictions for both counts

of assault because no evidence existed that the intruders intended to make Kelly or Devine

apprehensive or fearful of bodily injury or that they were in fear. We conclude sufficient evidence

exists to support both Davis’s and Reed’s convictions for both counts of assault. The same analysis

applies to both defendants.12

12 Although we may only discuss specific evidence in our analysis, we rely on the entire record in resolving this issue.

28 48324-6-II / 48520-6-II

To determine whether sufficient evidence supports a conviction, we view the evidence in

the light most favorable to the State and determine whether any rational fact finder could have

found the elements of the crime beyond a reasonable doubt. State v. Engel, 166 Wn.2d 572, 576,

210 P.3d 1007 (2009). “‘Substantial evidence’ is evidence sufficient to persuade a fair-minded

person of the truth of the asserted premise.” State v. Homan, 181 Wn.2d 102, 106, 330 P.3d 182

(2014).

“In claiming insufficient evidence, the defendant necessarily admits the truth of the State’s

evidence and all reasonable inferences that can be drawn from it.” State v. Drum, 168 Wn.2d 23,

35, 225 P.3d 237 (2010). Any inferences “‘must be drawn in favor of the State and interpreted

most strongly against the defendant.’” Homan, 181 Wn.2d at 106 (quoting State v. Salinas, 119

Wn.2d 192, 201, 829 P.2d 1068 (1992)). In addition, we “must defer to the trier of fact for purposes

of resolving conflicting testimony and evaluating the persuasiveness of the evidence.” Homan, 181

Wn.2d at 106.

Although the State argued that the jury could find Reed shot the gun, it also argued that the

evidence showed both Davis and Reed acted as accomplices to the crime. To convict Davis and

Reed of assault in the second degree, the State had to prove that each acted as a principal, or as an

accomplice, and assaulted another with a deadly weapon. RCW 9A.36.021(1)(c).

To prove the assault under accomplice liability, the State had to prove that Davis and Reed

“‘must have known generally that he was facilitating an assault, even if only a simple,

misdemeanor level assault, and need not have known that the principal was going to use deadly

29 48324-6-II / 48520-6-II

force or that the principal was armed.’”13 State v. McChristian, 158 Wn. App. 392, 401, 241 P.3d

468 (2010) (quoting In re Pers. Restraint of Sarausad, 109 Wn. App. 824, 836, 39 P.3d 308

(2001)). “In Washington, an accomplice need not be aware of the exact elements of the crime. As

long as the defendant engaged in conduct that is ‘the crime,’ the defendant may be found guilty.”

State v. Berube, 150 Wn.2d 498, 508-09, 79 P.3d 1144 (2003) (internal citation omitted).

Washington recognizes three common law definitions of “assault”: “(1) an attempt, with

unlawful force, to inflict bodily injury upon another (attempted battery); (2) an unlawful touching

with criminal intent (battery); and (3) putting another in apprehension of harm whether or not the

actor intends to inflict or is capable of inflicting that harm (common law assault).” State v.

Winings, 126 Wn. App. 75, 89, 107 P.3d 141 (2005). This case concerns the third definition.

“Assault by attempt to cause fear and apprehension of injury requires specific intent to

create reasonable fear and apprehension of bodily injury.” State v. Eastmond, 129 Wn.2d 497,

500, 919 P.2d 577 (1996) overruled on other grounds by State v. Brown, 147 Wn.2d 330, 58 P.3d

889 (2002). “A jury may infer specific intent to create fear from the defendant’s pointing a gun at

the victim, unless the victim knew the weapon was unloaded, but not from mere display.”

Eastmond, 129 Wn.2d at 500. Intent “‘can be inferred as a logical probability from all the facts

and circumstances.’” State v. Yarbrough, 151 Wn. App. 66, 87, 210 P.3d 1029 (2009) (quoting

State v. Wilson, 125 Wn.2d 212, 217, 883 P.2d 320 (1994)).

13 Neither Davis nor Reed challenges the sufficiency of the evidence supporting the firearm sentencing enhancement. For this sentence enhancement to apply to an unarmed accomplice, the accomplice must have had knowledge that his codefendant was armed. State v. Hayes, 182 Wn.2d 556, 564, 342 P.3d 1144 (2015).

30 48324-6-II / 48520-6-II

2. Assault on Devine (Count III)

The record shows that Davis told Reed about the electronics in the motel room. Davis,

Reed, and Daniel discussed and planned the crime. Reed and Davis retrieved the gun used in the

crime from Reed’s house. In addition, Daniel’s testimony at trial proved that Davis knew of the

gun because Daniel held the gun as he sat next to Davis in the car on the way to the motel and he

handed the gun to Reed before entering the motel room. They brought the gun to intimidate Phily

into giving them whatever he had. However, Davis stayed in the car.

Reed held the gun when he entered the motel room and he shot Phily. Devine watched

Reed shoot Phily after they struggled with the gun. One of the men pointed the gun at her during

the incident. Devine was shocked and scared. She worried one of the men would shoot her that

night. The other man held another gun in McGlothlen’s face.

When taken in the light most favorable to the State, the record as a whole shows that Reed

pointed a gun at Devine, and she feared for her safety. In addition, Davis participated in the crime

as an accomplice because he aided Reed in committing the crime by retrieving the gun and

planning the crime, and he knew the crimes Reed intended to commit, a robbery and an assault by

intimidating the occupants with a weapon. Therefore, we conclude that sufficient evidence exists

to support both Davis’s and Reed’s convictions for assault in the second degree against Devine.

3. Assault on Kelly (Count V) As previously stated, Davis planned the crime with Reed and Daniel. Davis and Reed

retrieved the gun from Reed’s house. They brought the gun to intimidate and scare Phily. Nearly

immediately after one of the men opened the door to the motel room, Reed shot Phily. Kelly ran

into the bathroom and crouched down because she feared for her safety. One of the men entered

the bathroom holding a gun and asked Kelly where items were located. She feared for her safety

31 48324-6-II / 48520-6-II

because she witnessed one of the men shoot Phily. Shortly thereafter, the man exited the bathroom.

Kelly grabbed her belongings and ran out to her mother’s house.

The evidence and its reasonable inferences, when taken in the light most favorable to the

State, shows that one of the defendants asked Kelly where items were located while holding a gun,

and Kelly feared for her safety. She displayed her fear by running away. In addition, Davis

participated in the crime as an accomplice. He aided the other men in committing the crime by

retrieving the gun and planning the crime, and he knew the crimes they intended to commit, a

robbery through intimidation of the occupants with a weapon, or an assault. Therefore, we

conclude that sufficient evidence exists to support both Davis’s and Reed’s convictions for assault

in the second degree against Kelly.

B. PROSECUTORIAL MISCONDUCT

Davis argues that the prosecutor committed misconduct in closing argument because he

twice misstated the law, he misused the puzzle analogy to explain reasonable doubt, and he

impugned defense counsel. Davis also argues that the repetitive misconduct of the prosecutor

denied him a fair trial. Reed adopts Davis’s arguments that the prosecutor committed misconduct.

We conclude that the prosecutor did not commit misconduct.

“Prosecutorial misconduct may deprive a defendant of his constitutional right to a fair trial.

In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 703-04, 286 P.3d 673 (2012). An appellant

claiming prosecutorial misconduct must demonstrate that the prosecutor’s conduct was both

improper and prejudicial. State v. Emery, 174 Wn.2d 741, 759-61, 278 P.3d 653 (2012). To

establish prejudice, the appellant must then show that the improper comments had a substantial

likelihood of affecting the verdict. Emery, 174 Wn.2d at 760.

32 48324-6-II / 48520-6-II

But when the defendant failed to object to the improper comments at trial, the defendant

must also show that the comments were “so flagrant and ill intentioned that an instruction could

not have cured the resulting prejudice.” Emery, 174 Wn.2d at 760-61. The appellant must show

that (1) no curative instruction would have eliminated the prejudicial effect, and (2) the misconduct

resulted in prejudice that had a substantial likelihood of affecting the verdict. Emery, 174 Wn.2d

at 761. The focus of this inquiry is more on whether the resulting prejudice could have been cured,

rather than the flagrant or ill-intentioned nature of the remarks. Emery, 174 Wn.2d at 761-62.

2. Misstating the Law

Davis and Reed argue that in closing argument the prosecutor misstated the law on the

robbery charge and the two counts of assault. Reed objected to the statement relating to the

robbery, but Davis did not. Neither Davis nor Reed objected to the argument on the assaults.

“A prosecuting attorney commits misconduct by misstating the law.” State v. Allen, 182

Wn.2d 364, 373, 341 P.3d 268 (2015). Yet, the improper statements must also be prejudicial.

Allen, 182 Wn.2d at 375.

a. Robbery

We address Davis’s and Reed’s argument that the prosecutor misstated the law by stating,

“If they were party to a robbery, their guilt as to each of these offenses flows naturally.” 13 RP at

1787. Davis and Reed argue the prosecutor misstated the law because the statement implied that

if the jury found one of the defendants guilty of murder in the first degree because he participated

in the robbery, then he was also guilty of all of the other charges. Br. of Appellant Davis at 34.

To convict Davis or Reed of any of the crimes as an accomplice, the jury must have found

that he,

with knowledge that it will promote or facilitate the commission of the crime, . . . either:

33 48324-6-II / 48520-6-II

(1) solicits, commands, encourages, or requests another person to commit the crime; or (2) aids or agrees to aid another person in planning or committing the crime. The word ‘aid’ means all assistance whether given by words, acts, encouragement, support, or presence. A person who is an accomplice in the commission of a crime is guilty of that crime whether present at the scene or not.

CP (Davis) at 279 (Instr. 19).

Here, the prosecutor referred to incident or crimes committed as “the robbery” throughout

his argument. The prosecutor seemed to try to focus the jury on the robbery first, because the basis

of either defendant’s conviction as an accomplice relied on whether he was a party to the robbery.

As stated in the definition for accomplice liability, Davis or Reed must have solicited, encouraged,

or aided Daniel in the crimes. After the trial court overruled the objection to the challenged

statement, the prosecutor argued that “the central issue here is whether or not these people were

involved in a robbery . . . it is not about who the shooter was.” 13 RP at 1788. The prosecutor did

not misstate the law because he made a factual argument about the accomplice charges. The

prosecutor argued that if either defendant acted as an accomplice in the robbery, he was also

responsible for the crimes that occurred as part of the robbery and the murder that occurred during

the robbery. If the jury found a defendant guilty of the robbery, based on the facts, the defendant

would also be guilty of the other charges based on what occurred during the robbery.

Regardless, Davis and Reed are unable to show prejudice here under either standard.

Because Reed objected to the statement, he must show that the improper comments had a

substantial likelihood of affecting the verdict. Emery, 174 Wn.2d at 759-61. Reed failed to show

that there was a substantial likelihood that the comment affected the verdict. Because Davis did

not object to the statement, he must show that the statement was “so flagrant and ill intentioned

that an instruction could not have cured the resulting prejudice.” Emery, 174 Wn.2d at 760-61.

Davis fails to meet this burden.

34 48324-6-II / 48520-6-II

The trial court properly instructed the jury on accomplice liability and what was required

to convict either defendant as an accomplice on each crime. Emery, 174 Wn.2d at 759-61. We

presume the jury follows the trial court’s instructions. Anderson, 153 Wn. App. at 428. Further,

the jury was instructed that it “must separately decide each count charged against each defendant.

Your verdict on one count as to one defendant should not control your verdict on any other count.”

CP (Davis) at 273 (Instr. 13). Even if the jury misunderstood the prosecutor’s argument that if it

found one defendant committed the robbery, the court instructed that the jury needed to consider

the other defendant’s actions separately. In addition, Reed’s counsel responded directly to this

statement in her closing argument and argued that the jury must consider each defendant and each

count separately. Accordingly, we conclude that the prosecutor did not commit misconduct by

this statement.

b. Assaults

Next, we address whether the prosecutor misstated the law twice when he first argued that

Kelly and Devine were victims of assault because they witnessed the intruders shoot Phily, and

second, in rebuttal, when he argued that “the act that they did that makes them responsible [for the

assaults] . . . it’s barging into the room.” 13 RP at 1889. Because neither of these statements was

objected to, Davis and Reed must show that the comments were “so flagrant and ill intentioned

that an instruction could not have cured the resulting prejudice.” Emery, 174 Wn.2d at 760-61.

To determine whether the prosecutor misstated the law, we consider State v. Asaeli, 150

Wn. App. 543, 208 P.3d 1136 (2009), and review whether someone may be a victim of assault if

he or she witnessed someone else being shot. In Asaeli, the defendant intentionally shot into a car

containing multiple people, multiple times. 150 Wn. App. at 582. The court determined that “[a]t

35 48324-6-II / 48520-6-II

the very least, this was an act done with the intent to create in another apprehension and fear of

bodily injury.” Asaeli, 150 Wn. App. at 582. Because the victim of the charged assault’s testimony

established that she saw at least two of the bullets come through the car’s windshield and that she lay down in the back seat after Asaeli started shooting. [The court determined that a]lthough [the victim] did not testify that she was afraid she would be shot and injured, the fact she was aware of the gunfire and took the only cover she could creates a very strong inference that the shooting created an apprehension and imminent fear of bodily injury.

Asaeli, 150 Wn. App. at 582. Accordingly, the court determined that the evidence that the

defendant committed an assault against the victim was strong. Asaeli, 150 Wn. App. at 582.

Here, the prosecutor’s statement was followed by:

That is an act, barging into a room. They are there. They are guests. This is a happy place. It’s supposed to be a happy place, and two men, uninvited, forced their way in. That’s an act, and then one of those men has a gun, and then one of those men shoots [Phily]. . . . What’s the act they did? That’s the act. The act of invading that space, one of them armed with a gun, one of them shooting [Phily].

13 RP at 1889. In context, the statement focuses on the fact that both Kelly and Devine similarly

witnessed a shooting at close range in the motel room. Based on Asaeli, there would be sufficient

evidence for an inference that the shooting created an apprehension and imminent fear of bodily

injury. The defendants barging into the room did not establish facts that support an inference of

apprehension and fear of bodily injury, it was the shooting. Accordingly, we conclude that the

prosecutor did not misstate the law.

Regardless, Davis and Reed again fail to prove that the statement prejudiced them because

the statement was not so flagrant and ill-intentioned that no curative instruction would have

eliminated any prejudicial effect of the statement. Again, we presume the jury follows the trial

court’s instructions. Anderson, 153 Wn. App. at 428. The court instructed the jury on the elements

of assault, and from the jury instructions it was clear what the State needed to prove. Davis and

Reed fail to meet their burden of proving that the comment was so flagrant and ill-intentioned that

36 48324-6-II / 48520-6-II

a curative instruction could not have cured it. Therefore, we conclude that the prosecutor did not

commit misconduct in closing argument by misstating the law.14

3. Puzzle Analogy

Next we address the prosecutor’s puzzle analogy. Davis and Reed both objected to this

argument, and thus, they must demonstrate that the comments were improper and had a substantial

likelihood of affecting the verdict. Emery, 174 Wn.2d at 759-61.

Several cases have addressed the “puzzle analogy.” State v. Lindsay, 180 Wn.2d 423, 436,

326 P.3d 125, 131 (2014); State v. Fuller, 169 Wn. App. 797, 825-27, 282 P.3d 126 (2012), review

denied, 176 Wn.2d 1006, 297 P.3d 68 (2013); State v. Curtiss, 161 Wn. App. 673, 700, 250 P.3d

496 (2011); State v. Johnson, 158 Wn. App. 677, 685, 243 P.3d 936 (2010).

In Johnson, the court held that “the prosecutor’s arguments discussing the reasonable doubt

standard in the context of making an affirmative decision based on a partially completed puzzle

trivialized the State’s burden, focused on the degree of certainty the jurors needed to act, and

implied that the jury had a duty to convict without a reason not to do so.” 158 Wn. App. at 685.

Accordingly, the court found the statement was improper and prejudicial. Johnson, 158 Wn. App.

at 685-86.

The court in Curtiss held that a similar puzzle analogy was proper. 161 Wn. App. at 700-

01. There, the prosecutor stated, “There will come a time when you’re putting that puzzle together,

and even with pieces missing, you’ll be able to say, with some certainty, beyond a reasonable

doubt what that puzzle is: The Tacoma Dome.” Curtiss, 161 Wn. App. at 700.

14 Davis also argues that he received ineffective assistance of counsel because his attorney failed to object to the prosecutor’s misstatement of the law. Because we conclude that the prosecutor did not misstate the law, the proposed objection would not have been sustained, and thus, the argument fails. See In re Pers. Restraint of Davis, 152 Wn.2d 647, 714, 101 P.3d 1 (2004).

37 48324-6-II / 48520-6-II

The Fuller court explained the difference between Johnson and Curtiss. 169 Wn. App. at

825-28. The key difference was that the “quantification by the prosecutor of the number of pieces

and percentage of completion required for reasonable doubt in Johnson was entirely different from

the prosecutor’s general reference to being able to discern the subject of a puzzle with some pieces

missing in Curtiss.” Lindsay, 180 Wn.2d at 435. “The former statement introduced elements of

specific quantification into the reasonable doubt analysis, while the latter did not.” Lindsay, 180

Wn.2d at 435.

The Lindsay court held that its case was plainly analogous to Johnson because the

prosecutor stated, “You could have 50 percent of those puzzle pieces missing and you know it’s

Seattle,” quantifying the standard of proof. 180 Wn.2d at 436.

Here, the prosecutor’s statements are analogous to the comments in Curtiss or Fuller

because he did not make a reference to what percent of the puzzle would need to be complete to

constitute reasonable doubt. The prosecutor merely suggested that at a certain point, even with

missing pieces, the jury could be certain of the puzzle’s image beyond a reasonable doubt. In

addition, the portion of the prosecutor’s argument that discussed being on a ferry boat did not

trivialize the burden for sitting as a juror in a murder trial. Therefore, we conclude that the

prosecutor did not commit misconduct when he argued the puzzle analogy because the statement

was not improper.

4. Impugning Defense Counsel

Finally, we address whether the prosecutor’s comments impugned defense counsel. Only

Reed objected to this statement, and thus, Davis must demonstrate the comments were “so flagrant

and ill intentioned that an instruction could not have cured the resulting prejudice.” Emery, 174

38 48324-6-II / 48520-6-II

Wn.2d at 760-61. Reed must show that the comments had a substantial likelihood of affecting the

verdict. Emery, 174 Wn.2d at 761.

“[A] prosecutor must not impugn the role or integrity of defense counsel. Prosecutorial

statements that malign defense counsel can severely damage an accused’s opportunity to present

his or her case and are therefore impermissible.” Lindsay, 180 Wn.2d at 431-32 (internal citation

In cases where courts have found that the prosecutor impugned defense counsel, the

prosecutor made much more egregious statements than the challenged statements here.

In [State v.] Negrete, for example, the prosecutor said that defense counsel was “‘being paid to twist the words of the witnesses.’” 72 Wn. App. [62,] 66, 863 P.2d 137 [1993]. In State v. Gonzales, the prosecutor impermissibly contrasted the roles of prosecutor and defense counsel, stating that while the defense attorney’s duty was to his criminal client, the prosecutor’s duty was “‘to see that justice is served.’” 111 Wn. App. 276, 283, 45 P.3d 205 (2002). And in Bruno [v. Rushen], “the obvious import of the prosecutor’s comments was that all defense counsel in criminal cases are retained solely to lie and distort the facts and camouflage the truth.” 721 F.2d [1193,] 1194 [1983].

Lindsay, 180 Wn.2d at 433. In Lindsay, the court found that one statement by the prosecutor did

impugn defense counsel: “This is a crock. What you’ve been pitched for the last four hours is a

crock.” 180 Wn.2d at 433. The Lindsay court analogized the statement to a similar statement

found to impugn the defense counsel in State v. Thorgerson, 172 Wn.2d 438, 451-52, 258 P.3d 43

(2011): the prosecutor referred to defense counsel’s presentation of his case as “‘bogus’” and

involving “‘sleight of hand.’” 180 Wn.2d at 433.

Here, the prosecutor stated, “And everyone is entitled to vigorous representation and an

advocate that will fight for you, but don’t confuse vigorous advocacy with there being any merit

to what [defense counsel] said to you during their comments.” 13 RP at 1878. The statement was

not improper and did not impugn defense counsel.

39 48324-6-II / 48520-6-II

5. Repetitive Misconduct

Davis argues that the repetitive misconduct of the prosecutor denied him a fair trial.

“Repetitive misconduct can have a ‘cumulative effect.’” Allen, 182 Wn.2d at 376 (quoting

Glasmann, 175 Wn.2d at 707) (internal quotations omitted). Although repetitive misconduct can

have a cumulative effect, here it did not. Because of our conclusions regarding prosecutorial

misconduct, there exists no repetitive misconduct. Accordingly, we conclude that Davis was not

denied a fair trial.

C. PRIOR CONSISTENT STATEMENT15

Davis argues and Reed asserts that the trial court abused its discretion by admitting

Daniel’s prior consistent statement because the trial court did not consider whether he was unlikely

to have foreseen the legal consequences of his statement when he made it.16 Davis also argues that

the recording of Daniel’s statement was irrelevant and prejudicial. We disagree.

We review a trial court’s decision to exclude or admit evidence under an abuse of discretion

standard. State v. Thomas, 150 Wn.2d 821, 856, 83 P.3d 970 (2004). “A trial court’s decision will

be reversed only if no reasonable person would have decided the matter as the trial court did.”

Thomas, 150 Wn.2d at 856. “Proper objection must be made at trial to perceived errors in

15 In his SAG, Reed joins and adopts Davis’s argument that the trial court its discretion by admitting evidence as a prior consistent statement based on its erroneous view of the law. 16 Davis also argues that the trial court abused its discretion because it did not review the transcript of the statement in its entirety before admitting the recording. He is incorrect. The trial court found that the redacted interview did not include direct reference to Reed, and the statements did not violate the confrontation clause. Regardless, Davis does not assign error to specific portions of the statement. An appellant must provide this court with references to relevant parts of the record to support its argument. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992); RAP 10.3(a)(6). Accordingly, we do not address this portion of Davis’s argument.

40 48324-6-II / 48520-6-II

admitting or excluding evidence and failure to do so precludes raising the issue on appeal.”

Thomas, 150 Wn.2d at 856; RAP 2.5(a). “If the trial court based its evidentiary ruling on an

incomplete legal analysis or a misapprehension of legal issues, the ruling may be an abuse of

discretion.” State v. McComas, 186 Wn. App. 307, 312, 345 P.3d 36, review denied, 184 Wn.2d

1008 (2015).

2. The Trial Court Did Not Abuse Its Discretion

a. Relevance

Evidence is relevant if it has “any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without the evidence.” ER 401. Relevant evidence is generally admissible. ER 402. “The

threshold to admit relevant evidence is very low. Even minimally relevant evidence is admissible.”

State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002). Yet, relevant evidence “may be

excluded if its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time,

or needless presentation of cumulative evidence.” ER 403.

Here, Daniel’s prior consistent statement was relevant because Daniel was a co-defendant

who testified about the crimes and both defendants’ involvement. Although he provided

inconsistent statements about Reed threatening him and his motivation for the crime, his other

statements were consistent. The statement was relevant to rebut the implied charge by the

defendants that he changed his testimony for the plea agreement. Because the majority of his

statement to police was consistent with his trial testimony, it was relevant. The trial court did not

abuse its discretion by admitting the evidence on relevancy grounds.

41 48324-6-II / 48520-6-II

b. Rebutting Improper Motive

ER 801(d)(1) provides that a statement is not hearsay if:

The declarant testifies at the trial or hearing and is subject to cross[-]examination concerning the statement, and the statement is . . . (ii) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

If cross-examination raises an inference “that the witness changed [his] story in response to an

external pressure, then whether that witness gave the same account of the story prior to the onset

of the external pressure becomes highly probative of the veracity of the witness’s story given while

testifying.” Thomas, 150 Wn.2d at 865. “Cross-examination designed to show that the witness

has the motive to change his story to receive a plea agreement triggers ER 801(d)(1)(ii).” State v.

McWilliams, 177 Wn. App. 139, 148, 311 P.3d 584 (2013).

Here, both Davis and Reed implied that Daniel fabricated his testimony to receive the

benefits of his plea bargain. The trial court concluded that both defendants highlighted and

emphasized Daniel’s reduced sentence to imply that the core of Daniel’s testimony could not be

believed because of the plea agreement.

However, “‘[t]he mere assertion that motives to lie may have existed at the time of the prior

statement is insufficient to prevent their admission.’” McWilliams, 177 Wn. App. at 149 (quoting

State v. Makela, 66 Wn. App. 164, 173, 831 P.2d 1109 (1992)). Accordingly, as a threshold matter,

the trial court must determine “whether the proffered motive [to lie] rises to the level necessary to

exclude the prior consistent statement.” Makela, 66 Wn. App. at 173. “To do so, the trial court

considers whether the witness made the prior consistent statements when ‘the witness was unlikely

to have foreseen the legal consequences of his or her statements.’” McWilliams, 177 Wn. App. at

149 (quoting Makela, 66 Wn. App. at 169).

42 48324-6-II / 48520-6-II

The trial court concluded that Daniel was unlikely to have foreseen the legal consequences

of his statement when he provided it to the police. The trial court considered that Daniel entered

into a plea agreement long after he made the prior consistent statement to law enforcement. Daniel

testified that he learned after a year and a half of being in jail that he could reach an agreement

with the State. All of the parties agreed on this issue. Accordingly, the trial court utilized the

proper test for admission and did not abuse its discretion in admitting the prior consistent

statement. Therefore, we conclude that because the trial court did not make a decision that no

reasonable person would have made, it did not abuse its discretion.

D. CUMULATIVE ERROR

Davis argues that reversal is required because cumulative error denied his right to a fair

trial. Reed also argues that reversal is required because cumulative error denied his right to a fair

trial. We disagree.

The cumulative error doctrine applies only in circumstances where there were several trial

errors that standing alone may not be sufficient to justify reversal, but viewed together may deny

the defendant a fair trial. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). Where no

prejudicial error is shown to have occurred, cumulative error cannot be said to have deprived the

defendant of a fair trial. State v. Stevens, 58 Wn. App. 478, 498, 794 P.2d 38 (1990).

None of Davis’s claimed errors undermined his right to a fair trial or the validity of his

convictions because there was no error. In addition, none of Reed’s claimed errors undermined

his right to a fair trial or the validity of his convictions because the only error was harmless.

Accordingly, we hold that both Davis’s and Reed’s claims of cumulative error fail.

43 48324-6-II / 48520-6-II

E. APPELLATE COSTS

Reed opposes appellate costs in light of State v. Sinclair, 192 Wn. App. 380, 367 P.3d 612,

review denied, 185 Wn.2d 1034 (2016), asserting that he does not have the ability to pay. For the

first time in his reply brief, Davis asks us to exercise our discretion and not award costs to the

State. He filed a motion on this issue, and asks us to consider the motion as a supplement to his

opening brief.

If the State decides to file a cost bill and if Reed and Davis each object to that cost bill, a

commissioner of this court will consider whether to award appellate costs pursuant to RAP 14.2.

STATEMENT OF ADDITIONAL GROUNDS—DAVIS

Davis asserts that the prosecutor ignored exculpatory evidence and statements and

“bullied” the jury into a guilty verdict. SAG (Davis) at 1. He also asserts that the trial was biased.

However, Davis does not identify any clear error, he simply states these assertions as facts.

In addition, Davis asserts that his attorney withdrew because Davis refused to take plea

deal. Davis again does not identify any clear error. This assertion pertains to matters outside the

record. On direct appeal, we cannot consider matters outside the record. Curtiss, 161 Wn. App.

at 703 (citing State v. McFarland, 127 Wn.2d 322, 338 n.5, 899 P.2d 1251 (1995) (“a personal

restraint petition is the appropriate means of having the reviewing court consider matters outside

the record”)). Although RAP 10.10 does not require an appellant to refer to the record or cite

authority, he is required to inform us of the “nature and occurrence of the alleged errors.” RAP

10.10(c). Davis’s assertions of error are too vague to allow us to identify the issues and we do not

reach them.

Davis also asserts that he did not receive a copy of his discovery. However, Davis actually

admits in the same sentence that he did receive a copy of his discovery, but it was only a week

44 48324-6-II / 48520-6-II

before trial. Furthermore, this argument pertains to matters outside the record, and he also

concedes the issue. Therefore, we do not reach the issue.

STATEMENT OF ADDITIONAL GROUNDS—REED

Reed asserts that he received ineffective assistance of counsel because he was denied

confidentiality in his conversations with his attorney. However, nothing in the record shows that

his attorney’s performance was deficient based on the concern about the strength of the victim’s

mother’s hearing aid. As previously stated, although RAP 10.10 does not require an appellant to

refer to the record or cite authority, he is required to inform us of the “nature and occurrence of

the alleged errors.” RAP 10.10(c). Reed’s assertion of error is too vague to allow us to identify

the issues and thus, we do not reach them.

In addition, Reed asserts that the victim’s mother could hear him speaking with his attorney

during trial with her listening device and shared the content of the conversations with the

prosecution. This claim pertains to matters outside the record.

During trial, the trial court informed the parties that the victim’s mother was using a hearing

device that could pick up conversations in the courtroom. The trial court asked the parties to

inform the court if they wanted the device silenced for some reason. After Reed’s attorney

expressed concern about her ability to speak to Reed, the trial court responded:

it can pick up conversations that otherwise a normal hearing person would not be able to given the distance, so what I’m suggesting to the both of you, both to you and [Davis’s attorney] is that you be circumspect in those conversations, do them in writing or whatever, if there needs to be something of importance said, you merely need to report the Court. If it takes that we have to take a break so you can have a conversation with your client, then I will do so.

2 RP at 243. Reed’s attorney stated on the record that she did not feel she was able to communicate

freely with Reed because of her concern that the victim’s mother overheard their conversation. In

response, the trial court reiterated that they communicate in writing or ask for a brief break for a

45 48324-6-II / 48520-6-II

conversation, and the court would turn off the device.17 The State stated that it expressed to the

victim’s mother the importance of that counsel be able to confer with their clients in confidence

and to alert the court if she began to hear such communications.

Nothing in the record clearly reflects that the victim’s mother heard the conversations or

communicated anything to the State. Again, on direct appeal, we cannot consider matters outside

the record and a personal restrain petition is the appropriate means for this issue. McFarland, 127

Wn.2d at 338 n.5. Therefore, we do not consider this issue.

I. SUFFICIENCY OF THE EVIDENCE

Reed seems to assert that his conviction should be reversed because insufficient evidence

supports a conviction of murder in the first degree because he was an accomplice and should only

have been on trial for a charge of murder in the second degree. Because Daniel, Reed’s co-

defendant, was the shooter but only convicted of murder in the second degree, Reed asserts that

he should also have been convicted of murder in the second degree as an accomplice.

RCW 9A.32.030(1) provides that “A person is guilty of murder in the first degree when: .

. . (c) He or she commits or attempts to commit the crime of . . . (3) burglary in the first degree, . .

. and in the course of or in furtherance of such crime or in immediate flight therefrom, he or she,

or another participant, causes the death of a person other than one of the participants.”

Reed does not challenge his conviction of burglary in the first degree. Reed also does not

challenge that Phily died during the course of the robbery. Therefore, sufficient evidence supports

his conviction of murder in the first degree because he committed one of the enumerated felonies

and a death of someone other than a participant resulted in the course of the crime.

17 The trial court specifically noted that it was “not making a finding that Ms. Phily can overhear anything at all.” 2 RP at 246-47.

46 48324-6-II / 48520-6-II

II. ISSUES ADDRESSED IN REED’S DIRECT APPEAL

In his SAG, Reed joins and adopts Davis’s argument that the trial court abused its discretion

by admitting Daniel’s statement as a prior consistent statement based on its erroneous view of the

law. For the same reasons explained in Section III C above, we hold that the trial court did not err

by admitting Davis’s statement.

Reed also requested to add to his appellate attorney’s argument in his appeal that the trial

court violated his right to confrontation by denying his motion to sever because the redaction of

Davis’s statement was insufficient. For the same reasons explained in Section II A above, we hold

that the trial court erred, but the error was harmless.

We affirm. A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.

Melnick, J.

We concur:

Bjorgen, C.J.

Lee, J.