IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 86857-8-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION JACOB RYAN HELMS,
Appellant.
HAZELRIGG, A.C.J. — Jacob Helms was convicted of assault in the second
degree with a deadly weapon and a separate gross misdemeanor charge of
possession of a dangerous weapon, following a jury trial. Helms alleges that
prosecutorial misconduct deprived him of a fair trial, and the trial court imposed
custody conditions that were not crime-related and legal financial obligations that
should be stricken due to his indigency. He separately challenges the sufficiency
of the charging document and the constitutionality of the statute criminalizing
possession of a dangerous weapon. Helms fails to demonstrate error on all but
his challenge to the legal financial obligations. Accordingly, we affirm in part,
reverse in part, and remand for correction of his judgment and sentence.
FACTS
Jacob Helms and Anatoly “Tony” Berezhnoy were involved in an altercation
in Vancouver on the night of August 18, 2022. The impetus of the altercation is
disputed between the parties. Berezhnoy claimed that Helms struck him from No. 86857-8-I/2
behind without warning. Helms later admitted that he struck Berezhnoy in the back
of the head with metal knuckles, but asserted that he did so only in self-defense.
The two were grappling on the sidewalk when officers who were in the area
responded quickly, and ultimately placed both Berezhnoy and Helms into
handcuffs to determine what had occurred. Helms was booked into the local jail
that night and the State filed charges of assault in the second degree with a deadly
weapon and possession of a dangerous weapon, a gross misdemeanor. The case
proceeded to a jury trial and Berezhnoy, his wife, Oksana Berezhnoy, their friend
Olga Dernovaya, and the responding officers testified for the State. Helms testified
in his own defense. The jury convicted Helms as charged and the court sentenced
him to 17 months in prison, followed by 12 months of community custody
supervision by the Department of Corrections (DOC).
Helms timely appealed.
ANALYSIS
I. Prosecutorial Misconduct
Helms avers that the prosecutor engaged in “pervasive” misconduct by
referring to Berezhnoy as the “victim” several times during trial. In support of this
assignment of error, Helms cites six times that the prosecutor used the word to
describe Berezhnoy and offers an assortment of out-of-state cases that address
the use of the word “victim.” However, he presents no analogous authority from
Washington courts beyond the basic rules governing prosecutorial misconduct. In
response, the State provides an extensive footnote rebutting Helms’
characterization of the out-of-state cases and avers the actions of the prosecutor
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here were neither flagrant nor ill intentioned. Given that foreign cases offer only
persuasive authority, and our state has robust law governing prosecutorial
misconduct, Washington jurisprudence is sufficient for us to conclude that Helms’
right to a fair trial was not impinged by the prosecutor’s conduct.
A defendant who makes a timely objection to prosecutorial misconduct must
show that the conduct was “‘both improper and prejudicial in the context of the
entire trial.’” State v. Zamora, 199 Wn.2d 698, 708, 512 P.3d 512 (2022) (internal
quotation marks omitted) (quoting State v. Loughbom, 196 Wn.2d 64, 70, 470 P.3d
499 (2020)). If the defense does not timely object, we apply a heightened prejudice
standard; the defendant must demonstrate the improper and prejudicial conduct
was “‘so flagrant and ill intentioned that an instruction would not have cured the
prejudice.’” Loughbom, 196 Wn.2d at 70 (internal quotation marks omitted)
(quoting State v. Walker, 182 Wn.2d 463, 477, 341 P.3d 976 (2015)). “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.’”
State v. Emery, 174 Wn.2d 741, 761, 278 P.3d 653 (2012) (internal quotation
marks omitted) (quoting State v. Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43
(2011)).
The parties agreed that Helms struck Berezhnoy with metal knuckles; the
reason why was the sole disputed fact. During direct examination, Vancouver
Police Officer Shane Weldon referred to Berezhnoy as “the victim” when he
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described responding to the scene of the altercation. The following exchange
occurred:
[STATE:] Okay. So as you approached the location of the yelling, what did you observe?
[WELDON:] So when I got there, Schoolcraft and Harris got there a few seconds before I did, so when I got there I saw them in the bushes with the [d]efendant. And I saw Tony, the victim, yelling and kind of being restrained by his two acquaintances.
[STATE:] And was the victim—so Anatoly Berezhnoy, is that the victim you’re referring to?
[WELDON:] Yeah, sorry.
Helms did not object any of the times this word was used during the State’s
examination of Weldon. The remaining four uses of the word victim occurred
during the State’s closing argument. As the prosecutor walked through the
evidence for the jury, she said,
So you heard three witnesses, two witnesses and the victim, that describe that on August 18th, 2022, about 11:00, 11:30, Tony, Olga, and Oksana were walking from the waterfront to Downtown Vancouver to get a drink and go get some dinner. .... The [d]efendant in this case was wearing metal knuckles and he struck the victim in the back of the head. No matter which story, you did hear two today, no matter which one, he did admit he struck the victim in the back of the head wearing metal knuckles.
The prosecutor later argued, “The State has proved beyond a reasonable doubt
through the testimony of the victim, the testimony of the witnesses and the officers
that on August 18th, 2022, the [d]efendant, Jacob Helms, assaulted Tony
Berezhnoy both with a dangerous weapon and he recklessly inflicted substantial
bodily harm.” Helms’ attorney did not object to any use of the word victim during
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closing argument. Accordingly, we review his allegation of prosecutorial
misconduct under the heightened prejudice standard.
As a preliminary matter, while the State appropriately concedes in briefing
that use of the word “victim” can be improper, depending on context, using the
word “victim” six times during a trial consisting of testimony from five witnesses
does not constitute “pervasive” use. This is particularly true when four of the
challenged instances occurred during closing argument when the State holds
significant latitude to argue its theory of the case. More critically, the manner by
which this word was used does not establish misconduct by the State. As the State
points out in briefing, Weldon was the first to use the term to describe Berezhnoy,
and the two times the prosecutor said victim during the presentation of evidence
appeared to be in an attempt to clarify the officer’s testimony. When the prosecutor
described Berezhnoy as a victim in summation, she was arguing to the jurors her
position that she had proved the State’s case beyond a reasonable doubt. “In
closing argument the prosecuting attorney has wide latitude to argue reasonable
inferences from the evidence.” Thorgerson, 172 Wn.2d at 448. The challenged
statements do not constitute misconduct.
Finally, Helms fails to provide any compelling reason as to why any potential
prejudice from the description of Berezhnoy as a victim could not have been cured
by instruction from the judge. Courts routinely correct language used by parties at
trial and “[j]urors are presumed to follow the court’s instructions.” State v. Weaver,
198 Wn.2d 459, 467, 496 P.3d 1183 (2021). Helms does not carry his burden to
establish entitlement to relief on this assignment of error.
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II. Sufficiency of the Charging Document
Helms next asserts that the charging document was insufficient as it failed
to put him on notice of all essential elements of the crimes the State accused him
of committing. The defendant’s right to hear the charges against them is enshrined
in the federal constitution and the state constitution. The accused has a right “to
be informed of the nature and the cause of the accusation.” U.S. CONST. amend.
VI. And “to demand the nature and cause of the accusation against [them].” W ASH.
CONST. art. I, § 22. Thus, the “State must include all essential elements of an
alleged crime in the information.” State v. Kosewicz, 174 Wn.2d 683, 691, 278
P.3d 184 (2021). This rule is intended to “sufficiently apprise the defendant of the
charges against them so [they] may prepare a defense.” Id.
The State responds that this challenge is waived as it was not presented in
the trial court, and Helms fails to satisfy the requirement of RAP 2.5(a)(3) to
establish a manifest constitutional error that may be presented for the first time on
appeal. The State is correct.
We may refuse to review any claim of error which was not raised in the trial
court. RAP 2.5(a). However, we may elect to take up an error for the first time on
appeal if it is a manifest error affecting a constitutional right. RAP 2.5(a)(3). The
appellant’s task is to “‘identify a constitutional error and show how the alleged error
actually affected the [appellant]’s rights at trial.’” State v. O’Hara, 167 Wn.2d 91,
98, 217 P.3d 756 (2009) (alteration in original) (quoting State v. Kirkman, 159
Wn.2d 918, 926, 155 P.3d 125 (2007)). To rise to the level of a manifest error the
appellant must show actual prejudice. State v. Kalebaugh, 183 Wn.2d 578, 584,
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355 P.3d 253 (2015). This requires a further showing that the “‘asserted error had
practical and identifiable consequences in the trial of the case.’” Id. (internal
quotation marks omitted) (quoting O’Hara, 167 Wn.2d at 99).
Helms neither cites RAP 2.5(a)(3), nor attempts to satisfy the standard it
requires. Similarly, and more critically, he fails to present authority or argument
under the controlling standard of review for such a challenge. In order to
demonstrate error on a claim of insufficiency of a charging instrument, the
appellant must establish that the document failed to apprise the accused of an
essential element of the crime alleged, thus violating their constitutional right to
understand the accusation they face.
In State v. Pry, our Supreme Court addressed the two-step test for such
analysis laid out in its earlier opinion, State v. Kjorsvik, 117 Wn.2d 93, 812 P.2d 86
(1991), and explained that reviewing courts first determine whether the “necessary
facts appear in any form, or by fair construction can they be found, on the face of
the charging document.” 194 Wn.2d 745, 752, 452 P.3d 536 (2019). We may
consider any other allegations set out in this same charging instrument at this step
of the test. Id. at 753. If the necessary facts are present, the court then considers
whether the defendant was nonetheless prejudiced by the State’s “inartful
language that caused a lack of notice” and may review accompanying affidavits.
Id. at 752-53. If, after de novo review, the appellate court concludes that the
“necessary elements are not found or fairly implied, we presume prejudice and
reverse without reaching the second prong and the question of prejudice.” Id. at
753.
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Helms cites none of this authority, nor does he address the language in the
information the State filed in his case. “We do not consider conclusory arguments
unsupported by citation to authority.” State v. Mason, 170 Wn. App. 375, 384, 285
P.3d 154 (2012); RAP 10.3(a)(6). “Passing treatment of an issue or lack of
reasoned argument is insufficient to merit judicial consideration.” Holland v. City
of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998). Instead, the entirety of
his argument on this issue addresses the true focus of his appeal: his claim that
the possession of a dangerous weapon statute is unconstitutional. Because Helms
has neither carried his burden to demonstrate manifest constitutional error such
that this unpreserved error could be reviewed on appeal, nor provided analysis or
argument under the appropriate legal framework, we decline to consider this
challenge further.
III. Constitutionality of RCW 9.41.250(1)(a)
Woven into Helms’ attack on the charging instrument is a request for this
court to hold that knowledge is an essential element of the charge of possession
of a dangerous weapon. RCW 9.41.250(1)(a) reads in part, “Every person who:
[m]anufactures, sells, or disposes of or possesses any instrument or weapon of
the kind usually known as . . . metal knuckles . . . is guilty of a gross misdemeanor.”
For this challenge, Helms analogizes to the mens rea required for the crime of
possession of a controlled substance. Specifically, Helms seeks extension of the
reasoning from State v. Blake, 1 arguing that offenses based on possession alone
risk prosecution of “wholly innocent and passive nonconduct on a strict liability
1 197 Wn.2d 170, 481 P.3d 521 (2021).
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basis.” In response, the State again successfully argues a procedural barrier to
our analysis of this assignment of error.
The State properly notes that we presume that statutes are constitutional.
State v. Zigan, 166 Wn. App. 597, 603, 270 P.3d 625 (2012). When arguing a
statute is unconstitutional, the challenger carries a “‘heavy burden of establishing
its unconstitutionality beyond a reasonable doubt.’” State v. Haviland, 186 Wn.
App 214, 218, 345 P.3d 831 (2015) (quoting Amalg. Transit Union Loc. 587 v.
State, 142 Wn.2d 183, 205, 11 P.3d 762, 27 P.3d 608 (2001)). The State correctly
contends that to prevail on this claim, Helms must engage in statutory
interpretation of RCW 9.41.250(1)(a) to determine whether our legislature meant
for it to be a strict liability crime and then apply the factors set out in State v. Bash,
130 Wn.2d 594, 925 P.2d 978 (1996) (plurality opinion). The creation of strict
liability offenses is a legislative balancing act as they are historically disfavored. In
the past, an “‘evil-meaning mind’” had to accompany “‘an evil-doing hand,’” but the
legislature has increasingly turned to strict liability to place “the burden of care on
those in the best position to avoid those harms.” State v. Yishmael, 195 Wn.2d
155, 163-64, 456 P.3d 1172 (2020) (quoting Morisette v United States, 342 U.S.
246, 251, 72 S. Ct. 240, 96 L. Ed. 288 (1952)). If “the State was improperly relieved
of the burden of proving [the defendant] acted with knowledge . . . reversal would
be required.” Id. at 163. In Yishmael, our Supreme Court referenced the factors
it had previously set out in Bash that are to be considered when determining if “the
legislature intended to create strict liability offense.” Id. at 166. Those
considerations are as follows:
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(1) . . . the statute must be construed in light of the background rules of the common law, and its conventional mens rea element; (2) whether the crime can be characterized as a “public welfare offense” created by the Legislature; (3) the extent to which a strict liability reading of the statute would encompass seemingly entirely innocent conduct; (4) . . . the harshness of the penalty[;] . . . (5) the seriousness of the harm to the public; (6) the ease or difficulty of the defendant ascertaining the true facts; (7) relieving the prosecution of difficult and time-consuming proof of fault where the Legislature thinks it important to stamp out harmful conduct at all costs, “even at the cost of convicting innocent-minded and blameless people”; and (8) the number of prosecutions to be expected.
Bash, 130 Wn.2d at 605-06 (quoting 1 W AYNE R. LAFAVE & AUSTIN W. SCOTT,
SUBSTANTIVE CRIMINAL LAW § 3.8, at 341-44 (1986)). Because Helms fails to
properly mount this challenge, we do not consider this assignment of error further.
IV. Community Custody Conditions
Helms next contends that the trial court imposed two community custody
conditions that are not crime-related and should therefore be stricken as exceeding
the court’s authority. We review de novo the statutory authority of the trial court to
impose community custody conditions. State v. Armendariz, 160 Wn.2d 106, 110,
156 P.3d 201 (2007). If the trial court acted within its statutory authority, the
imposition of sentencing conditions is reviewed for abuse of discretion. State v.
Smalley, 25 Wn. App. 2d 254, 256, 522 P.3d 1037 (2023). “A court abuses its
discretion if, when imposing a crime-related prohibition, it applies the wrong legal
standard.” In re Pers. Restraint of Rainey, 138 Wn.2d 367, 375, 229 P.3d 686
(2010).
The first challenged condition states that Helms “shall not possess or
consume controlled substances . . . without a valid prescription” during his term of
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community custody. However, it appears that Helms has misread RCW
9.94A.703. He contends the prohibition on controlled substances was imposed
pursuant to RCW 9.94A.703(3)(f), which pertains to discretionary conditions that
must be crime-related. 2 However, the condition restricting his possession and use
of controlled substances without a prescription is authorized by RCW
9.94.703(2)(c), which reads, “Unless waived by the court, as part of any term of
community custody, the court shall order an offender to . . . [r]efrain from
possessing or consuming controlled substances except pursuant to lawfully issued
prescriptions.” This community custody condition is waivable by the trial court, but
will be imposed if the trial court declines to do so. 9.94A.703(2)(c). Thus, because
the statute that explicitly authorizes the imposition of this community custody
condition does not require any relation to the crime of conviction, the trial court did
not abuse its discretion when it imposed this condition.
The second condition Helms challenges requires that he “undergo an
evaluation for treatment of anger management.” The felony judgment and
sentence (J&S) does not indicate the authority under which this community
custody condition was imposed, nor did the judge offer any explanation at the
sentencing hearing. Helms again claims that this condition is improper as it is not
crime-related. However, RCW 9.94A.703(3) expressly grants a sentencing court
discretion to order a defendant to “[p]articipate in crime-related treatment or
counseling services,” under subsection (c), or “[p]articipate in rehabilitative
2 Interestingly, Helms does not challenge another condition the court imposed, deemed
discretionary by RCW 9.94A.703(3)(e), that ordered him to refrain from possessing or consuming alcohol while on community custody.
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programs or otherwise perform affirmative conduct reasonably related to the
circumstances of the offense, the offender’s risk of reoffending, or the safety of the
community,” under subsection (d). The jury verdict demonstrates that they found
that Helms failed to prove that he acted in self-defense and, instead, credited
Berezhnoy’s claim that Helms attacked him unprovoked. On that factual basis,
and with the clear discretion conferred by RCW 9.94A.703, Helms has failed to
demonstrate that the trial court’s imposition of the requirement to obtain an anger
management evaluation constitutes an abuse of discretion.
V. Legal Financial Obligations
Finally, Helms argues and the State concedes, that the court erred in
imposing certain legal financial obligations (LFOs) despite its finding of indigency.
At sentencing, the court expressly found Helms indigent, yet on the felony J&S,
the judge imposed the then-mandatory $500 victim penalty assessment (VPA)
and, on the misdemeanor J&S, ordered that Helms pay supervision fees to DOC
and the collection cost of any unpaid LFOs. After Helms’ sentencing on December
7, 2022, the legislature amended a number of statutes related to the imposition of
LFOs on indigent defendants. See former RCWs 7.68.035(4) (2018), amended by
LAWS OF 2023, ch. 449, § 1; 9.94A.703 (2021), amended by LAWS OF 2022, ch. 29,
§ 8; 10.82.090(1) (2018), amended by LAWS OF 2022, ch. 260, § 12. These
statutory amendments apply to Helms because they became effective while his
case was pending appeal. State v. Ramirez, 191 Wn.2d 732, 747-50, 426 P.3d
714 (2018). Accordingly, we accept the State’s concession and remand for the
trial court to strike the VPA and DOC supervision fees from Helms’ J&Ss.
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Affirmed in part, reversed in part, and remanded for the trial court to strike
the LFOs.
_____________________________
WE CONCUR:
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