IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) ) No. 77022-5-1 Respondent, ) ) DIVISION ONE v. ) ) HENRY LEE JACKSON IV, ) UNPUBLISHED OPINION ) Appellant. ) FILED: December 10, 2018 ) SMITH, J. — Henry Lee Jackson IV appeals his convictions for domestic
violence felony violation of a no-contact order, first degree criminal
impersonation, resisting arrest, and escape from community custody. He
contends the prosecutor committed reversible misconduct by eliciting improper
testimony from a witness and that defense counsel was ineffective for failing to
object to that and other improper testimony. He also contends there was
insufficient evidence to support his conviction for criminal impersonation because
there was no evidence that he committed an act using an assumed identity. We
conclude prosecutorial misconduct could have been cured by an instruction to
the jury, the failure to object to the improper testimony could be characterized as
a legitimate trial tactic, Jackson cannot show prejudice, and cumulative error did
not deprive him of a fair trial. Viewing the evidence in the light most favorable to
the State, there is sufficient evidence to support the jury finding that Jackson No. 77022-5-1/2
assumed his brother's identity and then committed acts to avoid detection of his
true identity and arrest. We affirm.
FACTS
On February 15, 2017, C.C. called 911 because she could hear a man,
later identified as Henry Lee Jackson IV, yelling at a woman. While on the phone
with a 911 operator, C.C. saw Jackson hit the woman, pull the woman's hair, and
choke the woman at a nearby bus stop. C.C. narrated the events to the 911
operator as they were happening.
When police officers arrived, Jackson identified himself as his brother,
William Jackson, and gave the officers his brother's name, birthdate, and
address. The victim identified Jackson to the police as Anthony Jackson. When
the officers decided to arrest Jackson based on C.C.'s eye witness account of
the assault, Jackson became uncooperative and had to be physically restrained
and taken into custody. During a search at the Whatcom County Jail, officers
found Jackson's identification card and learned his true identity. Officers then
discovered that there was a no-contact order between Jackson and the victim.
The State charged Jackson by amended information with domestic
violence felony violation of a no-contact order, first degree criminal
impersonation, resisting arrest, and escape from community custody. The
escape from community custody charge was bifurcated from the other charges
for trial.
At the trial for the first three charges, both C.C. and her husband testified.
Additionally, the trial court admitted two of C.C.'s 911 calls into evidence. The
2 No. 77022-5-1/3
officers who responded to the scene also testified, and the trial court allowed the
State to play selected recordings from the officers' body cameras at the trial. The
jury found Jackson guilty on all three charges. Jackson was also found guilty of
escape from community custody by a second jury. The trial court sentenced
Jackson on all counts. Jackson appeals.
PROSECUTORIAL MISCONDUCT Jackson argues the prosecutor committed reversible misconduct by
eliciting irrelevant and inflammatory testimony from C.C. about her reaction to the
assault. But because defense counsel did not object, and the error could have
been cured by an instruction to the jury, we disagree.
"To prevail on a claim of prosecutorial misconduct, the defendant must
establish 'that the prosecutor's conduct was both improper and prejudicial in the
context of the entire record and the circumstances at trial." State v. Thorgerson,
172 Wn.2d 438, 442, 258 P.3d 43(2011)(quoting State v. Maqers, 164 Wn.2d
174, 191, 189 P.3d 126 (2008)). "If the defendant did not object at trial, the
defendant is deemed to have waived any error, unless the prosecutor's
misconduct was so flagrant and ill intentioned that an instruction could not have
cured the resulting prejudice." State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d
653(2012)(citing State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997)).
"Under this heightened standard, the defendant must show that(1)'no curative
instruction would have obviated any prejudicial effect on the jury' and (2) the
misconduct resulted in prejudice that'had a substantial likelihood of affecting the
jury verdict." Emery, 174 Wn.2d at 761 (quoting Thomerson, 172 Wn.2d at 455).
3 No. 77022-5-1/4
Evidence is relevant when 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." ER 401. Relevant evidence is admissible unless a rule of law
prohibits its admission. ER 402. ER 403 prohibits the trial court from admitting
relevant evidence "if its probative value is substantially outweighed by the danger
of unfair prejudice." Unfair prejudice is prejudice that is more likely to arouse an
emotional response than a rational decision from the jury and that suggests a
decision on an improper basis. State v. Cronin, 142 Wn.2d 568, 584, 14 P.3d
752(2000). A trial is not fair when irrelevant and inflammatory matter, which has
a natural tendency to prejudice the jury against the accused, is introduced. State
v. Miles, 73 Wn.2d 67, 70, 436 P.2d 198 (1968).
Here, the prosecutor asked C.C. about her reaction to the assault:
Q. How did it, how did you react to this? How did it make you feel? A. Oh, it was traumatizing for me to see it happen. It was, I cried for that woman all night long. It's just, it's not okay to hurt people. It's just not okay, and it, it was hard to watch. It was hard to witness from beginning to end, including the officers and everything that happened at the very end when he was being arrested. It was very traumatizing.[1]
Defense counsel did not object.
The prosecutor's question and C.C.'s response were not relevant to
Jackson's guilt or to any element of the charged crimes. Furthermore, the
response was unfairly prejudicial in that it likely aroused an emotional response
by the jury. But asking the improper question did not rise to the level of conduct
1 Report of Proceedings(RP)(May 2, 2017) at 24. 4 No. 77022-5-1/5
that the courts have previously held to be so flagrant and ill intentioned that it
could not have been cured by an instruction. See e.o., State v. Be!garde, 110
Wn.2d 504, 755 P.2d 174(1988)(reversible error where prosecutor stated that
defendant was associated with an organization of madmen who kill
indiscriminately); State v. Monday, 171 Wn.2d 667, 257 P.3d 551 (2011)
(reversible error where prosecutor imputed an "antisnitch" code to black
witnesses only); In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 702, 286
P.3d 673(2012)(plurality opinion)(reversible error where prosecutor altered
defendant's booking photograph with the addition of phrases such as "'GUILTY"
superimposed three times in an "X" shape over defendant's face in red letters);
State v. Walker, 182 Wn.2d 463, 341 P.3d 976(2015)(reversible error where the
prosecutor presented Microsoft PowerPoint slides showing admitted exhibits
altered with inflammatory text that expressed a personal opinion on defendant's
guilt). Likewise, any prejudice resulting from C.C.'s response to the prosecutor's
improper question could have been cured by an instruction to the jury to
disregard C.C.'s response. Therefore, reversal is not warranted
INEFFECTIVE ASSISTANCE OF COUNSEL
Jackson argues that he received ineffective assistance of counsel
because defense counsel failed to object to C.C.'s testimony about both her
reaction to the assault and the victim's demeanor. We disagree. A criminal defendant has the right to effective assistance of counsel under
the Sixth Amendment to the United States Constitution and article I, section 22
(amend. X) of the Washington State Constitution. State v. Hendrickson, 129
5 No. 77022-5-1/6
Wn.2d 61, 77, 917 P.2d 563(1996). "To prove that failure to object rendered
counsel ineffective, [a defendant] must show that not objecting fell below
prevailing professional norms, that the proposed objection would likely have been
sustained, and that the result of the trial would have been different if the evidence
had not been admitted." In re Pers. Restraint of Davis, 152 Wn.2d 647, 714, 101
P.3d 1 (2004)(citing State v. Townsend, 142 Wn.2d 838, 847, 15 P.3d 145
(2001); State v. McFarland, 127 Wn.2d 322, 337 n.4, 899 P.2d 1251 (1995);
Hendrickson, 129 Wn.2d at 80)(footnotes omitted). "The decision of when or
whether to object is a classic example of trial tactics." State v. Madison, 53 Wn.
App. 754, 763, 770 P.2d 662(1989). For example, trial counsel may decide not
to object to avoid emphasizing the objectionable testimony. Davis, 152 Wn.2d at
714. "Only in egregious circumstances, on testimony central to the State's case,
will the failure to object constitute incompetence of counsel justifying reversal."
Madison, 53 Wn. App. at 763.
Here, Jackson argues that defense counsel was ineffective by failing to
object to C.C.'s testimony about the victim's demeanor. C.C. testified that the
victim "seemed so empty and just so sad and like somebody who has been
through this a time or two before."2 A witness may only testify in terms that
include inferences or conclusions based on personal knowledge. ER 701; State
v. Wiqlev, 5 Wn. App. 465, 468, 488 P.2d 766 (1971). C.C.'s statement that the
victim looked like someone who had been through this before was speculative
and therefore improper. It was also prejudicial because it implied that the victim
2 RP at 35. 6 No. 77022-5-1/7
had been the victim of past domestic violence. ER 404(b) bars the admission of
evidence of a prior bad act "'for the purpose of proving a person's character and
showing that the person acted in conformity with that character." State v.
Gunderson, 181 Wn.2d 916, 922, 337 P.3d 1090 (2014)(quoting State v.
Gresham, 173 Wn.2d 405, 420, 269 P.3d 207 (2012)). To guard against the high
risk of unfair prejudice in domestic violence cases, courts confine the
admissibility of prior acts of domestic violence to cases where the State has
established their overriding probative value. Id. at 925. And, as discussed,
C.C.'s testimony about her own reaction to the assault was irrelevant and
prejudicial. Nevertheless, Jackson cannot show the failure to object was not a
strategic decision or that the outcome of the trial would have been different had
defense counsel objected.
Defense counsel's decision not to object to this testimony can be
characterized as a legitimate trial strategy. C.C. testified about the victim's
demeanor right after the jury heard the second 911 call from C.C. During these
calls, C.C. described the abuse that she witnessed as it was happening. An
objection to C.C.'s testimony could have emphasized the content of those calls.
Similarly, defense counsel may not have wanted to emphasize C.C.'s emotional
response to the assault by objecting to her testimony.
Jackson also cannot demonstrate that there is a reasonable probability
that the result of the trial would have been different had defense counsel
objected. There was overwhelming evidence of Jackson's guilt, including the
content of the 911 calls and the testimony from C.C., her husband, and the
7 No. 77022-5-1/8
responding officers. Therefore, Jackson fails to demonstrate ineffective
assistance of counsel.
CUMULATIVE ERROR
Jackson argues that the cumulative effect of C.C.'s improper testimony
about her own emotional reaction and the victim's demeanor resulted in an unfair
trial. We disagree.
The cumulative error doctrine applies when several trial errors occur that
"standing alone may not be sufficient to justify reversal but when combined may
deny a defendant a fair trial." State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390
(2000). It does not apply where the errors are few and have little or no effect on
the outcome of the trial. Id.
As described above, C.C.'s testimony about her reaction to the assault
and the victim's demeanor was improper. But it is unlikely that the improper
testimony, even combined, denied Jackson a fair trial. The evidence of
Jackson's guilt was overwhelming, and it is unlikely that these errors had any
effect on the outcome of the trial. Therefore, reversal is not appropriate.
SUFFICIENCY OF THE EVIDENCE
Jackson contends insufficient evidence supports his conviction for first
degree criminal impersonation under RCW 9A.60.040(1)(a). He argues that the
State only proved he verbally assumed a false identity, but not that he committed
an "act" in his assumed character, as required by that statute. We disagree.
In determining the sufficiency of the evidence, we view the evidence in the
light most favorable to the State and determine whether any rational trier of fact
8 No. 77022-5-1/9
could have found the essential elements of the crime beyond a reasonable
doubt. State v. Townsend, 147 Wn.2d 666, 679, 57 P.3d 255 (2002). A
challenge to the sufficiency of the evidence admits the truth of the evidence.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)(citing State v.
Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff'd, 95 Wn.2d 385,622 P.2d
1240 (1980)). Further, "all reasonable inferences from the evidence must be
drawn in favor of the State and interpreted most strongly against the defendant."
Id. (citing State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977),
overruled on other groundsty State v. Lyons, 174 Wn.2d 354, 275 P.3d 314
(2012)).
Statutory interpretation is a matter of law that we review de novo.
Jametsky v. Olsen, 179 Wn.2d 756, 761, 317 P.3d 1003 (2014). The primary
goal of statutory interpretation is to determine and give effect to the legislature's
intent. Id. at 762. To determine legislative intent, we first look to the plain
language of the statute. Id. "We may use a dictionary to discern the plain
meaning of an undefined statutory term." Nissen v. Pierce County, 183 Wn.2d
863, 881, 357 P.3d 45 (2015).
Under RCW 9A.60.040(1)(a), a person is guilty of criminal impersonation
in the first degree if the person "[a]ssumes a false identity and does an act in his
or her assumed character with intent to defraud another or for any other unlawful
purpose." That statute does not define the term "act." The dictionary defines
"act" as "a thing done or being done: DEED, PERFORMANCE" and "an external
9 No. 77022-5-Ill0
manifestation of the will : something done by a person pursuant to his volition."
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 20 (2002).
Here, sufficient evidence supports the jury conviction of criminal
impersonation. Officer Aspessi, one of the responding officers, testified that
when he first arrived on the scene, Jackson and the victim were sitting at the bus
stop. He testified that he took Jackson aside and began questioning him. The
court also allowed the State to play several recordings from Officer Aspessi's
body camera showing part of his interaction with Jackson. In one recording,
Jackson tells Officer Aspessi that he has been dating the victim for about six
months. When asked if he has any identification, Jackson responds that he does
not. Officer Aspessi then asks Jackson for his name. Jackson responds,"'Uhl"
and Officer Aspessi says,"What's your real name?"3 Jackson then says his
name is William, and Officer Aspessi says, "William what? Why—do you have
warrants out? Is that why you were kind of hesitating?"4 Jackson then gives the
officer his brother's full name, birthdate, and address.5 Officer Aspessi later
informed Jackson that he was under arrest for domestic violence assault
because a witness saw him assault the victim at the bus stop. In another body
camera recording, Jackson argues with Officer Aspessi saying, "I'm not going"
and "No, you said I checked out. I was cool, right?"6 Officer Aspessi also
testified that when he told Jackson he was under arrest, Jackson "went from a
3 RP at 132. 4 RP at 132. 5 RP at 132-33. 6 RP at 137.
10 No. 77022-5-1/11
seated position and leaped up onto the bench in the bus stop, and in so many
words said that he wasn't going to go with us."7 Officer Jeremy Woodward, the
other responding officer, testified that 40 or 45 minutes elapsed from the officers'
initial contact with Jackson until they discovered his true identity. And during that
time, Jackson continued to portray himself as his brother and did not correct the
officers' misconception as to his actual identity.
Jackson argues that none of the evidence demonstrates he performed an
"act" in his assumed identity under RCW 9A.60.040. But viewing the evidence in
the light most favorable to the State, the evidence described above is sufficient
for a jury to conclude that Jackson performed an act in his assumed identity.
Specifically, Jackson assumed his brother's identity by giving police his brother's
name so the officers would not discover that there was a no-contact order
between him and the victim and arrest him for violation of that order or for
domestic violence assault. After he told the officers that his name was William,
Jackson did, pursuant to his volition, several things in his assumed character to
mislead the officers and avoid arrest. For example, he gave the officers his
brother's birthdate and address, he insisted that he had "checked out" when the
officers told him he was under arrest, and he physically jumped up on a bench in
response to the arrest. These external manifestations of his will to avoid arrest
while representing to the police that he was his brother constituted sufficient
evidence for the jury to find that Jackson performed an "act" in his assumed
character. Accordingly, the conviction must be affirmed.
7 RP at 136. 11 No. 77022-5-1/12
Jackson contends that State v. Williamson, 84 Wn. App. 37, 924 P.2d 960
(1996), requires his conviction be reversed. That case involved a former version
of the obstructing-a-police-officer statute. The relevant section of that statute
made it unlawful for a person to "'[w]illfully hinder[], delay[], or obstruct[] any law
enforcement officer." Id. at 44 (quoting former RCW 9A.76.020(LAWS OF 1994,
ch. 196,§ 1)). Courts had concluded that the legislature intended this section of
the statute to criminalize conduct, not false and misleading statements. Id. at 43
(citing State v. Hoffman, 35 Wn. App. 13, 16, 664 P.2d 1259 (1983); State v.
Swaite, 33 Wn. App. 477, 483, 656 P.2d 520 (1982)).8 In Williamson, the
defendant verbally told police officers his name was "'Christopher Columbus,"
and there was no evidence of conduct by the defendant outside of this false
statement. Id. at 44-45. Accordingly, the Court of Appeals held that the State
had failed to prove an offense under the relevant section of the obstructing-a-
police-officer statute. Id. at 45.
Jackson asserts that like the defendant in Williamson, he engaged solely
in speech, not conduct, and thus his conviction must be reversed under
Williamson. But Williamson is distinguishable for two reasons. First, although
the defendant in Williamson made it difficult for the police to identify him,
requiring the police to do so through his fingerprints, he did not pretend to be
Christopher Columbus. Id. at 40. By contrast, Jackson misled the police by
assuming the identity of his brother and acting as if he was his brother to avoid
8 False and misleading statements were criminalized under a different section of the statute but were invalidated because they were unconstitutionally vague. Williamson, 84 Wn. App. at 43. 12 No. 77022-5-1/13
arrest for domestic violence assault. Second, and more importantly, Williamson
is distinguishable because there is no indication that the legislature intended the
"act" required in the criminal impersonation statute to exclude false statements,
as there was under the former obstructing-a-police-officer statute. Because there
was sufficient evidence that Jackson performed at least one "act" in his assumed
identity, his conviction must stand.
We affirm.
WE CONCUR: (MI/