FILED DECEMBER 19, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 34092-9-111 ) Respondent, ) ) V. ) UNPUBLISHED OPINION ) JAMES MICHAEL COMBS, ) ) Appellant. )
PENNELL, J. - James Combs was convicted of second degree assault with a deadly
weapon after he confronted a cable technician who had been disconnecting the cable
services to his home. Mr. Combs appeals, claiming (1) the State presented insufficient
evidence to disprove self-defense, and (2) the prosecution improperly commented on his
pre-arrest silence. We disagree with Mr. Combs's contentions and affirm. No. 34092-9-III State v. Combs
FACTS 1
The events leading to Mr. Combs's conviction began when a Comcast2 technician
went to Mr. Combs's home to disconnect the cable. The technician was tasked with
performing a "hard disconnect," that involves disconnecting the main cable line to the
home. 1 Verbatim Report of Proceedings (Nov. 9, 2015) at 82. The technician was
wearing his "high-visibility vest" and was in a truck marked on both sides with
"Comcast" and "Prince Telecom." Id. at 85. Although there were several no trespassing
signs posted on Mr. Combs's property, the technician testified such signs do not prohibit
his access to the cable lines. The technician explained that he knocked on Mr. Combs's
door, but proceeded to the cable box after no one answered. The technician testified he
could hear a television on inside the home, and heard the programming switch off once he
disconnected the cable.
Immediately after the cable was disconnected, Mr. Combs came out of the house,
opening the door with "pretty intense" force. Id. at 91. Armed with a metal baseball bat,
Mr. Combs took a full swing at the technician. The technician was able to dodge the
swing, which he believed would have struck his head with enough force to kill or at least
1 Our factual statement is based on the evidence presented at trial. 2 The technician was employed by Prince Telecom, a subcontractor for Comcast.
2 No. 34092-9-111 State v. Combs
seriously injure him. Mr. Combs took several more full or partial swings at the technician
and, with a generous use of profanity, accused the technician of trespassing. The
technician identified himself as a Comcast subcontractor multiple times. He testified Mr.
Combs continued to advance with the bat while the technician retreated toward his truck.
Once in the truck, the technician called 911.
A deputy with the Spokane County Sheriffs Department responded to the 911 call.
The deputy spoke with the technician at the scene, took a statement, and then attempted to
speak with Mr. Combs. After additional deputies arrived, they knocked on the doors to
Mr. Combs's home but received no answer. The deputies conferred with their superior
about whether to remove Mr. Combs from his home through the use of a special weapons
and tactics (SWAT) team. They eventually decided to apply for a warrant and arrest Mr.
Combs on a different day. While this decision was being made, Mr. Combs's girlfriend
came out of the house to speak with the police. She indicated Mr. Combs was not going
to come out, and that she was sending text messages to Mr. Combs including information
that the police were considering using a SWAT team to arrest him. During his trial
testimony, the deputy acknowledged that Mr. Combs had no obligation to come out and
speak with the police. No SWAT team was ever called, and Mr. Combs eventually
received a summons in the mail.
3 No. 34092-9-111 State v. Combs
Mr. Combs offered a different version of events. He testified he was lying in bed
with his girlfriend when one of the walls started shaking as if someone was pounding on
it from the outside. He grabbed the baseball bat and went outside where he saw an
unknown person, the technician, standing near the house. Mr. Combs testified the
technician did not immediately identify himself. Mr. Combs further testified he
repeatedly demanded the technician leave the property for trespassing, was very scared
and angry, and did not swing the bat at the technician. He also testified the technician
advanced toward him (Mr. Combs) as ifto take the bat. The technician eventually
indicated he was with Comcast and retreated toward his truck. Mr. Combs then went
back into his home and called 911. Briefly, and not particularly relevant other than for
context, Mr. Combs was rude, arrogant, and disrespectful to the 911 dispatcher, and
refused to answer questions about his location or ifhe was armed. Mr. Combs
acknowledged and apologized for this behavior at trial.
During cross-examination, the prosecutor asked Mr. Combs why he refused to
come out. Mr. Combs testified it was due to shock over what happened with the
technician and his conduct toward the 911 dispatcher. After several questions from the
prosecutor that appeared designed to rehash some of the more belligerent portions of
Mr. Combs's 911 call, the trial judge instructed the prosecutor to move on following a
4 No. 34092-9-111 State v. Combs
defense objection for being argumentative. Mr. Combs also testified that he was afraid to
speak with the police after he learned they were considering bringing in a SWAT team.
Mr. Combs placed a second 911 call, which is also irrelevant other than for context, in
which he threatened legal action against the police for considering SWAT options.
During closing argument, the prosecutor discussed the self-defense jJ'ry
instructions and argued self-defense did not apply because the technician was not a
malicious trespasser. Defense counsel argued the only reason Mr. Combs was charged
was because he was rude to the 911 dispatcher, and he refused to come out and speak
with the police. In rebuttal, the prosecutor again argued, based on the standard in the jury
instructions, that self-defense did not apply. He further argued that Mr. Combs refused to
come out of his house because he knew what he did to the technician was wrong and was
afraid of getting in trouble.
The jury found Mr. Combs guilty of second degree assault with a deadly weapon.
He appeals.
ANALYSIS
Sufficiency of the evidence
Due process requires the State prove all elements of the crime beyond a reasonable
doubt. State v. Washington, 135 Wn. App. 42, 48, 143 P.3d 606 (2006). In a sufficiency
5 No. 34092-9-III State v. Combs
challenge, the inquiry is "whether, after viewing the evidence in the light most favorable
to the State, any rational trier of fact could have found guilt beyond a reasonable doubt."
State v. Salinas, 119 Wn.2d 192, 201, 829 P .2d 1068 ( 1992). "[A ]11 reasonable inferences
from the evidence must be drawn in favor of the State and interpreted most strongly
against the defendant." Id.
Mr. Combs was charged with second degree assault under RCW 9A.36.02l(l)(c),
assaulting another with a deadly weapon. "Assault" is defined in one of three ways: "(1)
an attempt, with unlawful force, to inflict bodily injury upon another; (2) an unlawful
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FILED DECEMBER 19, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 34092-9-111 ) Respondent, ) ) V. ) UNPUBLISHED OPINION ) JAMES MICHAEL COMBS, ) ) Appellant. )
PENNELL, J. - James Combs was convicted of second degree assault with a deadly
weapon after he confronted a cable technician who had been disconnecting the cable
services to his home. Mr. Combs appeals, claiming (1) the State presented insufficient
evidence to disprove self-defense, and (2) the prosecution improperly commented on his
pre-arrest silence. We disagree with Mr. Combs's contentions and affirm. No. 34092-9-III State v. Combs
FACTS 1
The events leading to Mr. Combs's conviction began when a Comcast2 technician
went to Mr. Combs's home to disconnect the cable. The technician was tasked with
performing a "hard disconnect," that involves disconnecting the main cable line to the
home. 1 Verbatim Report of Proceedings (Nov. 9, 2015) at 82. The technician was
wearing his "high-visibility vest" and was in a truck marked on both sides with
"Comcast" and "Prince Telecom." Id. at 85. Although there were several no trespassing
signs posted on Mr. Combs's property, the technician testified such signs do not prohibit
his access to the cable lines. The technician explained that he knocked on Mr. Combs's
door, but proceeded to the cable box after no one answered. The technician testified he
could hear a television on inside the home, and heard the programming switch off once he
disconnected the cable.
Immediately after the cable was disconnected, Mr. Combs came out of the house,
opening the door with "pretty intense" force. Id. at 91. Armed with a metal baseball bat,
Mr. Combs took a full swing at the technician. The technician was able to dodge the
swing, which he believed would have struck his head with enough force to kill or at least
1 Our factual statement is based on the evidence presented at trial. 2 The technician was employed by Prince Telecom, a subcontractor for Comcast.
2 No. 34092-9-111 State v. Combs
seriously injure him. Mr. Combs took several more full or partial swings at the technician
and, with a generous use of profanity, accused the technician of trespassing. The
technician identified himself as a Comcast subcontractor multiple times. He testified Mr.
Combs continued to advance with the bat while the technician retreated toward his truck.
Once in the truck, the technician called 911.
A deputy with the Spokane County Sheriffs Department responded to the 911 call.
The deputy spoke with the technician at the scene, took a statement, and then attempted to
speak with Mr. Combs. After additional deputies arrived, they knocked on the doors to
Mr. Combs's home but received no answer. The deputies conferred with their superior
about whether to remove Mr. Combs from his home through the use of a special weapons
and tactics (SWAT) team. They eventually decided to apply for a warrant and arrest Mr.
Combs on a different day. While this decision was being made, Mr. Combs's girlfriend
came out of the house to speak with the police. She indicated Mr. Combs was not going
to come out, and that she was sending text messages to Mr. Combs including information
that the police were considering using a SWAT team to arrest him. During his trial
testimony, the deputy acknowledged that Mr. Combs had no obligation to come out and
speak with the police. No SWAT team was ever called, and Mr. Combs eventually
received a summons in the mail.
3 No. 34092-9-111 State v. Combs
Mr. Combs offered a different version of events. He testified he was lying in bed
with his girlfriend when one of the walls started shaking as if someone was pounding on
it from the outside. He grabbed the baseball bat and went outside where he saw an
unknown person, the technician, standing near the house. Mr. Combs testified the
technician did not immediately identify himself. Mr. Combs further testified he
repeatedly demanded the technician leave the property for trespassing, was very scared
and angry, and did not swing the bat at the technician. He also testified the technician
advanced toward him (Mr. Combs) as ifto take the bat. The technician eventually
indicated he was with Comcast and retreated toward his truck. Mr. Combs then went
back into his home and called 911. Briefly, and not particularly relevant other than for
context, Mr. Combs was rude, arrogant, and disrespectful to the 911 dispatcher, and
refused to answer questions about his location or ifhe was armed. Mr. Combs
acknowledged and apologized for this behavior at trial.
During cross-examination, the prosecutor asked Mr. Combs why he refused to
come out. Mr. Combs testified it was due to shock over what happened with the
technician and his conduct toward the 911 dispatcher. After several questions from the
prosecutor that appeared designed to rehash some of the more belligerent portions of
Mr. Combs's 911 call, the trial judge instructed the prosecutor to move on following a
4 No. 34092-9-111 State v. Combs
defense objection for being argumentative. Mr. Combs also testified that he was afraid to
speak with the police after he learned they were considering bringing in a SWAT team.
Mr. Combs placed a second 911 call, which is also irrelevant other than for context, in
which he threatened legal action against the police for considering SWAT options.
During closing argument, the prosecutor discussed the self-defense jJ'ry
instructions and argued self-defense did not apply because the technician was not a
malicious trespasser. Defense counsel argued the only reason Mr. Combs was charged
was because he was rude to the 911 dispatcher, and he refused to come out and speak
with the police. In rebuttal, the prosecutor again argued, based on the standard in the jury
instructions, that self-defense did not apply. He further argued that Mr. Combs refused to
come out of his house because he knew what he did to the technician was wrong and was
afraid of getting in trouble.
The jury found Mr. Combs guilty of second degree assault with a deadly weapon.
He appeals.
ANALYSIS
Sufficiency of the evidence
Due process requires the State prove all elements of the crime beyond a reasonable
doubt. State v. Washington, 135 Wn. App. 42, 48, 143 P.3d 606 (2006). In a sufficiency
5 No. 34092-9-III State v. Combs
challenge, the inquiry is "whether, after viewing the evidence in the light most favorable
to the State, any rational trier of fact could have found guilt beyond a reasonable doubt."
State v. Salinas, 119 Wn.2d 192, 201, 829 P .2d 1068 ( 1992). "[A ]11 reasonable inferences
from the evidence must be drawn in favor of the State and interpreted most strongly
against the defendant." Id.
Mr. Combs was charged with second degree assault under RCW 9A.36.02l(l)(c),
assaulting another with a deadly weapon. "Assault" is defined in one of three ways: "(1)
an attempt, with unlawful force, to inflict bodily injury upon another; (2) an unlawful
touching with criminal intent; and (3) putting another in apprehension of harm whether or
not the actor actually intends to inflict or is incapable of inflicting that harm." State v.
Hupe, 50 Wn. App. 277,282, 748 P.2d 263 (1988). Mr. Combs focuses his argument on
the first definition. Under RCW 9A.16.020(3), a person's use of force is not unlawful
when used to stop a malicious trespasser and the force utilized is not more than necessary.
Further, when a defendant charged with assault alleges self-defense, the State is required
to disprove the claim of self-defense beyond a reasonable doubt because the claim of self-
defense negates the unlawful force element of the assault charge. State v. Acosta, 101
Wn.2d 612, 615-19, 683 P.2d 1069 (1984).
6 No. 34092-9-111 State v. Combs
Mr. Combs argues the State failed to prove the technician had lawful authority to
be on his property, making him a trespasser. But a claim of self-defense is not that
simple. The trespasser must be a malicious trespasser. RCW 9A.16.020(3) (emphasis
added). Title 9A RCW defines "maliciously" as having "an evil intent, wish, or design to
vex, annoy, or injure another person." RCW 9A.04.110(12). Viewing the evidence in a
l j light most favorable to the State, the jury could have easily found beyond a reasonable
doubt the technician was not a malicious trespasser.
Even excluding the technician's testimony that he could ignore Mr. Combs's no
trespassing signs, the State presented sufficient evidence the technician was not a
malicious trespasser. The technician arrived at the property wearing a high visibility vest
in a marked Comcast and Prince Telecom truck. He knocked on the door to Mr. Combs's
home and proceeded to disconnect the cable after receiving no answer. The technician
testified he never threatened Mr. Combs and quickly identified himself as being with
I Comcast multiple times. While Mr. Combs offered a different version of the events, this i competing testimony is not relevant for purposes of the present analysis. State v. Green,
I 94 Wn.2d 216,221, 616 P.2d 628 (1980) (sufficiency analysis does not involve
reweighing evidence). The State presented sufficient evidence for the jury to find the
II technician was not a malicious trespasser.
l l 7
j i. ,j No. 34092-9-111 State v. Combs
Prosecutorial misconduct
Allegations of prosecutorial misconduct are reviewed for abuse of discretion.
State v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125 (2014). A defendant bears the
burden of showing the prosecutor's comments are both improper and prejudicial. Id.
Here, Mr. Combs cannot show the prosecutor's argument was improper.
Mr. Combs's arguments are based on State v. Easter, 130 Wn.2d 228, 236, 922
P.2d 1285 (1996), and its progeny. As this court explained in State v. Magana, 197 Wn.
App. 189, 194-95, 389 P.3d 654 (2016), Easter and its progeny have been overruled by
Salinas v. Texas, 570 U.S. 178, 133 S. Ct. 2174, 2179-84, 186 L. Ed. 2d 376 (2013). The
prosecutor's argument concerned Mr. Combs's pre-arrest silence, and he never expressly
invoked his right to silence. The Fifth Amendment3 right to silence does not bar the
prosecutor's argument. Further, the prosecutor's arguments were used to rebut Mr.
Combs's claims that he did not want to speak with the police after hearing the police were
considering SWAT options and because he was rude to the 911 dispatcher. Mr. Combs's
defense made his refusal to come out and speak with the police a relevant topic for the
prosecutor to address. As the prosecutor's argument was not improper, there was no
misconduct.
3 U.S. CONST. art. V
8 No. 34092-9-111 State v. Combs
CONCLUSION
The judgment and sentence is affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Pennell, J. WE CONCUR:
~ ~r
Fearing~' Lawrence-Berrey, J.
I 1
I 9
I I