State Of Washington, V. Hamza Osman

• Court: Court of Appeals of Washington
• Decided: December 4, 2023
• Docket: 84364-8
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 84364-8-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION HAMZA ABDULLAH OSMAN,

Respondent.

COBURN, J. — A jury convicted Hamza Osman of assault in the second degree.

Osman appeals his conviction arguing that the prosecutor committed misconduct in

describing the “reasonable doubt” standard in closing argument. He also challenges the

court’s imposition of the Victim Penalty Assessment (VPA) and argues in his statement

of additional grounds that he received ineffective assistance of counsel. We remand to

the trial court to strike the VPA from his judgment and sentence, but otherwise affirm.

FACTS

On the evening of October 16, 2020 Hani Farah 1 and their friend, Yasmina Aden,

met up and decided to spend time together. The two had bonded over their shared

1 Farah uses the pronouns they/them.

Citations and pincites are based on the Westlaw online version of the cited material. 84364-8-I/2

Somali background and LGBTQ 2 identities. Farah testified that Aden wanted to meet

some Somali men. Aden testified that Farah knew Aden did not like to hang out with

Somali people, but that Farah assured her they were meeting someone who was “queer

and trans-friendly who is also Somali.”

Farah retrieved $500 from their apartment and the two eventually met up with

Osman, who helped Farah purchase a bottle of whiskey from people selling it out of

tents. Aden testified that she drank a “couple of shots” and “blacked out,” stating she

was unable to remember anything between drinking and waking up shortly before a

later car accident.

According to Farah’s testimony, Osman drove the three to an area under a

bridge in south Seattle where they hung out with several other people. There, the group

ran into a man they knew as “Canada,” later identified as Zachary Mohammad.

Farah testified that Farah and Aden each had several alcoholic beverages before

Farah noticed Aden was “flirtatious” with the men. Farah became concerned that the

men did not know Aden was transgender and worried how the men would react based

on Farah’s experiences with other Muslim and Somali men. Farah testified that Osman

told Farah he liked Aden before Farah saw Osman and Aden get into Aden’s car

together. The two remained in the car alone together for between 15 and 20 minutes.

Osman then exited the car but his “demeanor had changed.” Farah assumed that

Osman and Aden had a sexual encounter and that Osman discovered Aden’s status as

transgender.

Osman then offered to drive Farah and Aden home in Aden’s vehicle, telling

2 “LGBTQ” is an acronym for lesbian, gay, bisexual, transgender, and queer or questioning. 2 84364-8-I/3

Farah to sit in the front seat while Aden and Canada sat in the backseat. According to

Farah, Farah saw Osman put on brass knuckles containing “spikes” after putting his

hand in his jacket pocket. As Osman drove, he began hitting Farah in the face while

wearing the brass knuckles and asking if Farah thought he was gay. Osman continued

to hit Farah while driving before stopping at an empty park where Osman got out of the

car, opened the front passenger door and pulled Farah out of the car. Farah claimed

that Osman pulled Farah to the ground, began to beat Farah, demanded Farah’s cash

and dug through Farah’s pockets to take the $500 and throw away Farah’s cell phone.

Aden attempted to get out of the car but Osman told Canada to put Aden back in the

car.

Farah explained that Osman put Farah back in the car and attempted to rob

Aden, but Aden did not have any cash. Osman then drove Farah and Aden to a Wells

Fargo ATM, but Aden was unable to withdraw any money. Farah testified that Osman

continued to drive both of them around, holding them “hostage” until the early morning

hours.

While Osman drove, Farah observed a sheriff’s vehicle on the street and saw a

woman in a parked car. Farah saw it as a chance to escape. Farah grabbed the wheel

in order to crash into the parked vehicle to get the sheriff’s attention then got out of the

car and yelled to the sheriff that Osman was hurting Farah.

Aden testified that the next thing she remembered after blacking out was that she

was in the back of her car with someone sitting next to her and hitting her, while

someone else was driving and hitting Farah multiple times in the face. Aden told the

driver to stop hitting her friend. Then Aden’s car hit another car. Aden testified that she

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thought the men in the car were the same men she met earlier in the night, though she

would not be able to recognize them.

After Farah grabbed the wheel, Aden’s vehicle crashed into another vehicle

driven by Carla Vicari, who was stopped at a stoplight while Osman attempted a right

turn in Aden’s vehicle. Vicari had a clear view into Aden’s vehicle after the collision and

observed someone attempting to exit the front passenger door and a man in the driver’s

seat pulling that person back into the vehicle twice. 3 Vicari then saw the man in the

driver’s seat get out of the vehicle, grab what appeared to be a bottle of alcohol and say

“I’m sorry. Her fault” before running away. Vicari observed another man exit the back

of the vehicle and run in the other direction. Vicari testified that the person in the front

passenger seat got out of the car appearing afraid and panicked and shouting for

someone to call the police.

Seattle police arrived on scene and observed Farah with injuries and swelling to

their face, but did not observe any bleeding or cuts. Farah initially refused medical

attention, but later acquiesced and was taken to a hospital. Farah identified Osman

from a photo as the man who hit Farah. Near the end of the police investigation on the

scene, an officer allowed Farah access to the vehicle in order to retrieve Farah’s things

before the car was towed. While the officer was speaking to another person at the

scene, Farah claimed that Farah had found brass knuckles inside the vehicle and held

them up. The officer told Farah to return them where Farah had found them to be

collected by investigators. The officer did not initially see where the brass knuckles

3 Vicari testified that at the time of the initial collision she could not identify the gender of the front passenger or driver, but was later able to describe the driver as a man and the front passenger as appearing female. 4 84364-8-I/5

were located prior to Farah holding them up.

The officer who had responded to the scene found Osman three days later and

arrested him. Osman was charged with one count of robbery in the first degree and one

count of assault in the second degree.

In closing arguments, the prosecution stated,

Each of these crimes must be proved beyond a reasonable doubt. And though this burden is high, it is not impossible to meet. The standard does not require you to find that the State proved each element beyond all doubt or beyond a speculative doubt. The only way you can know something beyond all doubt is if you were there to witness this first-hand, and if that were the case, you would be sitting there on this witness stand rather than here in the jury box. The standard contemplates that you as jurors are not first-hand observers of these events. The law recognizes these limitations exist, and that’s why the standard is beyond a reasonable doubt. And a reasonable doubt is a doubt that would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence. It’s a doubt for which a reason exists. So it can’t just be any doubt. There must be a reason for it. And this standard only applies to the elements of these offenses.

The defense objected to the prosecution’s explanation of the reasonable doubt

standard, but was overruled. The jury found Osman not guilty of robbery in the first

degree, but guilty of assault in the second degree. The trial court sentenced Osman to

13 months’ imprisonment and 18 months of community custody, and imposed the $500

VPA.

Osman appeals.

DISCUSSION

Prosecutorial Misconduct

Osman contends that the prosecutor in closing argument misstated the burden of

proof and unfairly shifted the burden onto the defendant by arguing that the prosecutor

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said “there must be a reason” for the jurors to have a reasonable doubt. We disagree.

Prosecutors have “‘wide latitude in making arguments to the jury and prosecutors

are allowed to draw reasonable inferences from the evidence.’” State v. Fisher, 165

Wn.2d 727, 747, 202 P.3d 937 (2009) (quoting State v. Gregory, 158 Wn.2d 759, 841,

147 P.3d 1201 (2006), overruled in part on other grounds by State v. W.R., 181 Wn.2d

757, 336 P.3d 1134 (2014)). A prosecutor “commits misconduct by misstating the law.”

State v. Allen, 182 Wn.2d 364, 373, 341 P.3d 286 (2015). To prevail on a claim of

prosecutorial misconduct, a defendant must show that “in the context of the record and

all of the circumstances of the trial, the prosecutor’s conduct was both improper and

prejudicial.” In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673

(2012).

Once a defendant establishes that a prosecutor’s statements are improper, we

determine whether the defendant was prejudiced. If the defendant objected at trial, the

defendant must show that the prosecutor’s misconduct resulted in prejudice that had a

substantial likelihood of affecting the jury’s verdict. State v. Emery, 174 Wn.2d 741,

760, 278 P.3d 653, 664 (2012). Where a defendant fails to object, we apply a

heightened prejudice standard, requiring the defendant to show that the prosecutor’s

misconduct was “so flagrant and ill intentioned that [a jury] instruction would not have

cured the [resulting] prejudice.” State v. Loughbom, 196 Wn.2d 64, 70, 470 P.3d 499

(2020) (quoting State v. Walker, 182 Wn.2d 463, 477, 341 P.3d 976 (2015)). If the

defendant is unable to meet this heightened prejudice standard, he is deemed to have

waived any error. Emery, 174 Wn.2d at 760-61 (citing State v. Stenson, 132 Wn.2d

668, 727, 940 P.2d 1239 (1997)). Essentially, a defendant who did not object at trial

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must show the improper conduct resulted in “incurable” prejudice. State v. Zamora, 199

Wn.2d 698, 709, 512 P.3d 512 (2022).

We review the prosecutor’s conduct and whether prejudice resulted from it “by

examining that conduct in the full trial context, including the evidence presented, ‘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. Monday, 171 Wn.2d 667,

675, 257 P.3d 551 (2011) (internal quotation marks omitted) (quoting State v.

McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006)).

Osman argues that the prosecutor’s statements are akin to a “fill-in-the-blank”

argument previously found improper by this court. See State v. Johnson, 158 Wn. App.

677, 243 P.3d 936 (2010). In Johnson, the prosecutor told the jury “to be able to find

reason to doubt, you have to fill in the blank, that’s your job.” Id. at 682. This court has

also found improper similar arguments telling the jury it is required to “fill in the blank” or

to articulate a reason for their doubt before finding a defendant not guilty. State v.

Anderson, 153 Wn. App. 417, 431, 220 P.3d 1273 (2009) (“in order to find the

defendant not guilty, you have to say ‘I don’t believe the defendant is guilty because,’

and then you have to fill in the blank.”); State v. Venegas, 155 Wn. App. 507, 523, 228

P.3d 813 (2010) (“In order to find the defendant not guilty, you have to say to

yourselves: ‘I doubt the defendant is guilty, and my reason is’—blank.”).

In the context of the entirety of the prosecutor’s argument, the challenged

statement does not amount to a prohibited “fill-in-the-blank” argument. The prosecutor

correctly explained that each crime must be proved beyond a reasonable doubt and

correctly defined a reasonable doubt as “a doubt that would exist in the mind of a

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reasonable person after fully, fairly, and carefully considering all of the evidence.” The

statement was made in the context of explaining that a reasonable doubt was not just

any doubt and that the prosecution was not required to prove the elements of the crime

beyond all doubt. The prosecutor went on to say that Osman is presumed innocent and

that presumption remains in effect unless the jury “find[s], during [their] deliberations,

that the presumption has been overcome by the evidence beyond a reasonable doubt.”

The context of the argument shows that the prosecutor was not attempting to tell

the jury that they were required to articulate a specific reason before they could find the

defendant not guilty, but to explain what a reasonable doubt was and that in order to

find the defendant not guilty, the jury must have a reasonable doubt as to an element of

the crime. The jury also had the benefit of the court’s correct explanation of reasonable

doubt in the jury instructions. The court instructed the jury that the State has the burden

of proving each element of the crime beyond a reasonable doubt and that

[a] reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence.

In context, the prosecutor saying “[t]here must be a reason for it” was another way of

saying a reasonable doubt is one for which a reason exists. Unlike the prosecutors in

Anderson and Venegas, the prosecutor in the instant case did not suggest jurors have

to articulate the reason.

Even if the prosecutor’s statement was improper, Osman would not be able to

show that the prosecutor’s misconduct resulted in prejudice that had a substantial

likelihood of affecting the jury’s verdict. Emery, 174 Wn.2d at 760. Osman argues that

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his assault conviction only rested on the testimony of Farah, which the jury rejected as

evidenced by finding Osman not guilty of robbery in the first degree. But evidence other

than Farah’s testimony supported the assault conviction. Alongside Farah’s testimony

and identification of Osman as the assailant, the jury heard the responding officer’s

description of Farah’s injuries and viewed the brass knuckles recovered from the

vehicle. The jury also heard testimony from Aden that she had observed the man in the

driver’s seat of the vehicle hitting Farah multiple times. Another witness, Vicari, testified

to seeing the man in the driver’s seat twice pull Farah back into the car after Farah

opened the front passenger door and attempted to exit the car. Vicari also testified that

Farah appeared afraid and panicked, shouting for anyone to call the police.

We conclude that in the context of the State’s closing argument, the evidence

presented to the jury, and the trial court’s instructions to the jury, the prosecutor’s

statement did not amount to a prohibited “fill-in-the-blank” argument and was not

improper or prejudicial.

Victim Penalty Assessment

Osman argues in supplemental briefing that this court should strike the $500

VPA imposed on Osman as a mandatory fee at the time of sentencing. The State

agrees.

Under RCW 7.68.035(4), enacted in July 2023, trial courts are required to waive

the VPA if the defendant is indigent as defined in RCW 10.01.160(3). This court has

applied this waiver to cases pending direct appeal at the time the law went into effect.

See State v. Ellis, No. 56984-1-II, slip op. at 12 (Wash. Ct. App. June 13, 2023),

https://www.courts.wa.gov/opinions/pdf/D2%2056984-1-II%20Published%20Opinion.pdf

9 84364-8-I/10

(citing State v. Ramirez, 191 Wn.2d 732, 748-49, 426 P.3d 714 (2018)).

The State acknowledges that, had the trial court conducted the now-required

indigency analysis before imposing the VPA, it would have found Osman indigent as

defined in RCW 10.01.160(3). The State further observes that under the current version

of RCW 7.68.035,

upon motion by a defendant, the trial court must waive any VPA imposed prior to July 1, 2023, if the defendant does not have the ability to pay it, and a defendant by definition does not have the ability to pay if they are indigent. RCW 7.68.035(5).

It is under this circumstance that the State agrees that a remand to strike the VPA is

appropriate. The State concedes that Osman is indigent and entitled to relief. We

agree and remand to the trial court to strike the VPA imposed upon Osman.

Ineffective Assistance of Counsel

Osman next argues in a statement of additional grounds that his counsel was

ineffective. Osman contends that his counsel “recklessly disregarded [Osman’s] prior

strategic and tactical decisions” by stating in opening and closing arguments that the

victim was not hit with brass knuckles and was only punched. Osman argues that his

counsel admitted this in an attempt to avoid a conviction for a more serious offense.

We disagree.

To show ineffective assistance of counsel, Osman must establish that his

counsel’s performance was both deficient and resulted in prejudice. State v. Grier, 171

Wn.2d 17, 32-33, 246 P.3d 1260 (2011); Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). When counsel’s conduct can be

characterized as legitimate trial strategy or tactics, it cannot serve as the basis for a

claim of ineffective assistance. State v. Prado, 144 Wn. App. 227, 248, 181 P.3d 901

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(2008).

The record reflects that the defense did not concede that the victim had been

punched. Defense counsel stated only that the victim had alleged Osman had punched

them with brass knuckles. The defense made no statement or admission in its opening

statement that Osman had actually committed any assault. The record similarly reflects

that the defense counsel also did not make such a statement in closing. Defense

counsel instead argued that Farah’s story that Osman used brass knuckles did not

make sense given the type of injuries and the lack of blood on the brass knuckles and

argued the evidence did not clearly show the brass knuckles in the car before Farah

found them. There is nothing in the record to support Osman’s assertion that his

counsel admitted Osman committed any unlawful act. Osman has failed to show that

his counsel’s performance was deficient.

CONCLUSION

We remand for the trial court to strike the imposition of the VPA, but otherwise

affirm.

WE CONCUR: