IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 86169-7-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
JOHN PATRICK KELLY,
Appellant.
FELDMAN, J. — We are asked in this appeal to decide (among other issues)
whether the common law doctrine of transferred intent applies in cases, like this
one, where the defendant is charged with second degree assault. John Patrick
Kelly pointed a loaded handgun at Alexander and Jessica Cope and their three
children and yelled “Call 911 or I’ll shoot you” as they walked past his residence.
Although Kelly told police after the incident that he saw only Mr. Cope and not Ms.
Cope when he yelled “I’ll shoot you,” he was convicted and sentenced for second
degree assault against Ms. Cope in addition to second degree assault against Mr.
Cope and the lesser included offense of unlawful display of a weapon against the
eldest Cope child. The trial court sentenced Kelly within the standard range on
each count and imposed two 36-month firearm enhancements to run consecutively
for a total sentence of 7 years of confinement. On appeal, Kelly argues (a) in the
absence of transferred intent, which he claims is inapplicable here, there is No. 86169-7-I
insufficient evidence to sustain the conviction on second degree assault against
Ms. Cope, (b) his convictions also should be reversed because of prosecutorial
misconduct, and (c) the trial court erred in running the firearm enhancements
consecutively. We affirm.
I
Alexander Cope, Jessica Cope, and their three minor children were walking
through their neighborhood when they heard a banging sound from a nearby
house. Mr. and Ms. Cope looked toward the house and saw Kelly leaning out of a
second-story story window waving a silver object. Kelly yelled at the Copes, “Does
this look like a fake to you?” Mr. Cope realized the object in Kelly’s hand was a
handgun and replied, “What are you talking about?” Kelly then pointed the
handgun at the Cope family and said, “Call 911. Somebody is out to get me. Call
911 or I’ll shoot you.” At this point, Ms. Cope also realized the object was a
handgun. Mr. and Ms. Cope were standing one to two feet away from each other
when Kelly pointed the gun at them. Recognizing Kelly’s statements as a threat
and fearing that Kelly would shoot them and their children, Mr. and Ms. Cope
quickly walked their children around the corner out of Kelly’s view and reported the
incident to law enforcement.
When police arrived at Kelly’s residence, Kelly initially refused to engage
with them because he believed they were not real law enforcement officers. When
Kelly eventually talked to the officers, he said a man named Nick had been trying
to kill him as part of a conspiracy. Over the previous two days, Kelly had called
911 several times to report his concerns to law enforcement, but Kelly believed
that Nick had rerouted these phone calls to fake law enforcement officers. Kelly
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had also spray painted “Call 911” on his window. When police asked him if he had
interacted with anyone outside of his residence, Kelly said he tried to wave down
a man walking by his house to call 911 but became upset when the man refused.
Kelly denied pointing a firearm at the man or seeing a family walking with him.
Officers believed Kelly’s paranoid and erratic behavior was caused by his admitted
methamphetamine use over the past several days. Upon searching the upstairs
bedroom, officers discovered a loaded silver semi-automatic handgun with a round
in the chamber and the safety off.
The State initially charged Kelly with five counts of first degree assault, but
it reduced the charges before trial to second degree assault, each with an
individual firearm enhancement. After the State rested at trial, the court dismissed
two of the assault charges relating to the youngest Cope children for insufficient
evidence because “they were too young to know what was happening.” The jury
convicted Kelly on the remaining charges of (1) second degree assault against Mr.
Cope, (2) second degree assault against Ms. Cope, and (3) the lesser included
offense of unlawful display of a weapon against the eldest Cope child. The jury
also found by special verdict that Kelly was armed with a firearm during the
commission of the crimes. The trial court sentenced Kelly to 12 months of
confinement on the underlying charges and imposed two 36-month firearm
enhancements to run consecutively for a total sentence of 7 years of confinement.
Kelly appeals.
II
A. Sufficiency of the evidence
Kelly asserts that the State “presented insufficient evidence to sustain a
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conviction” of second degree assault against Ms. Cope. We disagree.
Kelly’s argument is premised on the trial court’s to-convict instruction, which
he correctly argues is controlling under the law of the case doctrine. While the law
of the case doctrine “means different things in different circumstances,” here it is
used to refer “to the principle that jury instructions that are not objected to are
treated as the properly applicable law for purposes of appeal.” State v. Johnson,
188 Wn.2d 742, 755, 399 P.3d 507 (2017) (quoting Roberson v. Perez, 156 Wn.2d
33, 41, 123 P.3d 844 (2005)). “In criminal cases, the State assumes the burden
of proving otherwise unnecessary elements of the offense when such added
elements are included without objection in the ‘to convict’ instruction.” Id. at 756
(citing State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998)). This legal
principal is the central thrust of Kelly’s argument.
The to-convict instruction at issue here (instruction 14) states:
To convict the defendant of the crime of assault in the second degree, as charged in count two, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about 20th day of May, 2020, the defendant assaulted Jessica Cope with a deadly weapon; and
(2) That this act occurred in the State of Washington.
If you find from the evidence that each of these elements have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any of these elements, then it will be your duty to return a verdict of not guilty.
Thus, to convict Kelly of second degree assault against Ms. Cope, the State was
required to prove beyond a reasonable doubt that (1) Kelly “assaulted Jessica
Cope,” (2) he used a “deadly weapon,” and (3) this act occurred in Washington.
4 No. 86169-7-I
When analyzing whether evidence is sufficient to uphold a jury’s verdict, this
court applies a deferential standard of review. In re Pers. Restraint of Martinez,
171 Wn.2d 354, 364, 256 P.3d 277 (2011). “Evidence is sufficient to support a
conviction if, viewed in the light most favorable to the prosecution, it permits any
rational trier of fact to find the essential elements of the crime beyond a reasonable
doubt.” State v. Andy, 182 Wn.2d 294, 303, 340 P.3d 840 (2014) (quoting State
v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004)). Additionally, “all reasonable
inferences from the evidence must be drawn in favor of the State and interpreted
most strongly against the defendant.” Johnson, 188 Wn.2d at 762 (quoting State
v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). We also defer to the jury
on issues of conflicting testimony, witness credibility, and persuasiveness of the
evidence. Thomas, 150 Wn.2d at 874-75.
Here, sufficient evidence shows that Kelly used a deadly weapon and that
the assault took place in Washington. As noted previously, the evidence shows
that Kelly pointed a loaded handgun at Mr. and Ms. Cope and their children and
yelled “Call 911 or I’ll shoot you” as they walked past his residence. Kelly does not
contest, nor could he, that a loaded handgun is a deadly weapon. See instruction
10 (“A firearm, whether loaded or unloaded, is a deadly weapon.”). The evidence
also shows that the assault occurred in University Place, which is located in
Washington. Thus, the first two elements of second degree assault against Ms.
Cope are supported by sufficient evidence.
Sufficient evidence also supports the remaining element, which is that Kelly
“assaulted Jessica Cope.” Instruction 11 defines “assault” as follows:
An assault is . . . an act done with the intent to create in
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another apprehension of fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.
Instruction 11 requires intent, which is defined in two other jury instructions. First,
instruction 9 states:
A person acts with intent or intentionally when acting with the objective or purpose to accomplish a result that constitutes a crime.
Second, instruction 12 states:
If a person acts with intent to assault another, but the act harms a third person, the actor is also deemed to have acted with intent to assault any third person who is put in reasonable apprehension and imminent fear of bodily injury.
Under these instructions, intent can be established by showing either (1) that Kelly
intended to assault Ms. Cope (direct intent under instruction 9) or (2) that he
intended to assault Mr. Cope and that Ms. Cope was put in reasonable
apprehension and imminent fear of bodily injury (transferred intent under
instruction 12).
Sufficient evidence supports a finding of transferred intent under Instruction
12. Kelly does not dispute that he acted with intent to assault Mr. Cope. 1 Under
instruction 12, this intent transfers to Ms. Cope if she was put in reasonable
apprehension and imminent fear of bodily injury. Addressing that issue, Ms. Cope
testified that Kelly pointed the silver object in his hand “directly at us” and “[t]owards
us. We were -- the wagon and the kids were next to me and next to my husband.
We were all still standing together.” When Kelly then said, “Call 911 or I’ll shoot
you,” it became clear to Ms. Cope that the object “was indeed a firearm.” Ms. Cope
1 This concession is well taken because Mr. Cope testified he “believed we were going to be shot
at” after Kelly pointed the handgun at him and his family and yelled “Call 911 or I’ll shoot you.”
6 No. 86169-7-I
quickly removed herself and her children from the line of fire because “I didn’t want
to be in any kind of vicinity to somebody waving a firearm in our direction. I was
worried that it could be discharged.” Viewed in the light most favorable to the State
with all reasonable inferences drawn in the State’s favor, there is sufficient
evidence to establish transferred intent under instruction 12.
At oral argument, as well as in prior briefing, Kelly did not seriously dispute
that there is sufficient evidence to find transferred intent under instruction 12.
Instead, Kelly argues that the transferred intent doctrine does not apply to the
second degree assault conviction at issue here. Stated another way, Kelly claims
we should examine the sufficiency of the evidence in the absence of transferred
intent and instruction 12. But contrary to Kelly’s argument, Washington courts
have recognized for decades that the transferred intent doctrine may apply in
second degree assault cases. See, e.g., State v. Aguilar, 176 Wn. App. 264, 275,
308 P.3d 778 (2013) (“[T]ransferred intent is applicable to second degree assault
charges involving an accidental or unintended victim.”) (quoting State v. Wilson,
113 Wn. App. 122, 131, 52 P.3d 545 (2002)); State v. Clinton, 25 Wn. App. 400,
401, 606 P.2d 1240 (1980) (a “classic ‘transferred intent’ case” involving second
degree assault where the defendant swung a pipe at one person but it slipped from
his hand and struck another).
Nor are we persuaded by Kelly that the Washington legislature somehow
abrogated the transferred intent doctrine in second degree assault cases when it
codified the transferred intent doctrine in the first degree assault statute, RCW
9A.36.011, but not in the second degree assault statute, RCW 9A.36.021. In
support of this argument, Kelly relies on State v. Elmi, 166 Wn.2d 209, 215, 207
7 No. 86169-7-I
P.3d 439 (2009), which involved a defendant who fired gunshots into a living room
occupied by the targeted victim and four other children. 166 Wn.2d at 212-14. The
Supreme Court affirmed Elmi’s convictions for first degree assault against the four
unintended victims under a strict reading of RCW 9A.36.011, which provides, “A
person is guilty of assault in the first degree if he or she, with intent to inflict great
bodily harm: . . . [a]ssaults another with a firearm . . . .” Id. at 218. Because the
court determined that the first degree assault statute “encompasses transferred
intent” by “provid[ing] that once the mens rea is established, any unintended victim
is assaulted if they fall within the terms and conditions of the statute,” the court did
not resort to applying the common law transferred intent doctrine. Id.
In relying on Elmi, Kelly inverts the court’s reasoning and erroneously
concludes, without supporting authority, that “[b]ecause the legislature did not
codify transferred intent, it could not be relied on to prove second-degree assault.”
Reply Br. 5. 2 But nowhere does Elmi state that the legislature abrogated the
common law doctrine of transferred intent with respect to second degree assault
by only codifying the doctrine into the first degree assault statute. To the contrary,
Elmi implicitly rejected this argument by noting that the common law doctrine of
transferred intent “is generally applied only when a criminal statute matches
specific intent with a specific victim.” Elmi, 166 Wn.2d at 217 (citing State v.
2 This logical fallacy is referred to as “denying the antecedent,” which former Justice Wiggins of our
Supreme Court has explained as follows: “Under the rules of formal logic, conditional statements take the form, ‘If P, then Q.’ P is termed the antecedent and Q the consequent. The fallacy of denying the antecedent occurs when one takes a true statement presented in this form and concludes that ‘if not P, then not Q’ must also be true. That conclusion is not valid because negating the truth of the antecedent (i.e., denying the truth of P) does not necessitate the denial of its consequent.” State v. Brush, 183 Wn.2d 550, 568 n.8, 353 P.3d 213 (2015) (Wiggins, J., concurring in part and concurring in result).
8 No. 86169-7-I
Wilson, 125 Wn.2d 212, 218, 883 P.2d 320 (1994)). The second degree assault
statute does precisely this by stating that a person commits assault if he or she
“[i]ntentionally assaults another.” RCW 9A.36.021(1)(a) (emphasis added).
Further, with respect to the crime of assault more generally, Elmi acknowledged
that “assault does not, under all circumstances, require that the specific intent
match a specific victim.” Elmi, 166 Wn.2d at 216 (citing Wilson, 125 Wn.2d at 218).
For all these reasons, we reject Kelly’s argument that the Washington legislature
abrogated the transferred intent doctrine with respect to second degree assault.
Kelly’s reliance on State v. Abuan, 161 Wn. App. 135, 257 P.3d 1 (2011), is
likewise misplaced. In Abuan, the defendant was convicted of two counts of
second degree assault after firing a gun at a person in a garage that was attached
to a house where a second person heard the gunshots. Id. at 140-43. On appeal,
the court concluded there was insufficient evidence of Abuan’s intent to assault the
person inside the house because (1) the State did not offer a transferred intent jury
instruction and (2) there was an “absence of any injury or apprehension and
imminent fear of bodily injury” because the person inside the house did not have a
gun pointed at him, did not see the shooter or the gun, and could not see the
shooting. Id. at 159. Unlike Abuan, here we have both a transferred intent jury
instruction and ample evidence that Ms. Cope was placed in reasonable
apprehension and imminent fear of bodily injury. On this record, Abuan is
inapposite.
Next, Kelly contends that even if the transferred intent doctrine applies in
some second degree assault cases, it does not apply in cases, like this one, where
the conviction is premised on a reasonable apprehension and imminent fear of
9 No. 86169-7-I
bodily injury as opposed to physical harm. But Kelly fails to meaningfully
distinguish between an assault where the defendant physically harms someone
and one where the defendant only places someone in apprehension of harm. The
Elmi court disavowed such a distinction: “The assault statute provides for the
various methods of assault to be treated equally. As such, whether the unintended
victim is actually battered (like in Wilson) or not (like in this case) is irrelevant for
purposes of determining whether an assault occurred.” Elmi, 166 Wn.2d at 217-
18 (citing Wilson, 125 Wn.2d 212); see also State v. Frasquillo, 161 Wn. App. 907,
916, 255 P.3d 813 (2011) (noting that “under Elmi, transferred intent can also apply
to victims who are only put in apprehension of harm”).
Lastly, even if we were to agree with Kelly that the transferred intent doctrine
does not apply to the second degree assault conviction at issue here, there is also
sufficient evidence to establish the requisite intent to assault Ms. Cope in the
absence of the transferred intent instruction. See State v. Salamanca, 69 Wn.
App. 817, 826-27, 851 P.2d 1242 (1993) (finding sufficient evidence from which
the jury could infer intent to assault another even if transferred intent instruction
was “superfluous”). Although intent cannot be presumed, “it can be inferred as a
logical probability from the evidence.” Id. at 826. Ms. Cope testified that Kelly
pointed the handgun toward her and her family and yelled “Call 911 or I’ll shoot
you”—a threat that applies equally to both Mr. and Ms. Cope. 3 And contrary to
Kelly’s subsequent statement to police that he saw only Mr. Cope and not Ms.
3 See, e.g., W EBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2653 (1981) (defining “you” as “the
one or ones being addressed”) (emphasis added). On the record presented here, as described in the text above, a rational trier of fact could reasonably infer that “I’ll shoot you” referred to both Mr. Cope or Ms. Cope together.
10 No. 86169-7-I
Cope when he yelled “I’ll shoot you,” Ms. Cope testified that she was standing just
a couple feet away from Mr. Cope when Kelly pointed the gun at them. This
evidence, viewed favorably to the State, supports a logical inference—and would
allow a rational trier of fact to find—that Kelly intended to assault Ms. Cope. See
State v. Eastmond, 129 Wn.2d 497, 500, 919 P.2d 577 (1996) (“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”), effectively overruled on other
grounds by State v. Brown, 147 Wn.2d 330, 340, 58 P.3d 889 (2002).
In short, with or without the transferred intent instruction, there is sufficient
evidence to establish the elements of second degree assault against Ms. Cope. 4
B. Prosecutorial misconduct
Kelly next argues the trial court erred in denying his motion for a new trial
under CrR 7.5 based on three alleged instances of prosecutorial misconduct. We
disagree.
Under CrR 7.5(a)(2), a trial court may grant a defendant’s motion for a new
trial based on prosecutorial misconduct “when it affirmatively appears that a
substantial right of the defendant was materially affected.” We review the denial
of a CrR 7.5 motion for a new trial under an abuse of discretion standard. State v.
Davis, 3 Wn. App. 2d 763, 787, 418 P.3d 199 (2018). Where, as here, the motion
4 Additionally, the result also would be the same if we were to apply the statutory elements of
second degree assault and corresponding common law. See RCW 9A.36.021(1)(c) (“A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree . . . [a]ssaults another with a deadly weapon.”); Elmi, 166 Wn.2d at 215 (specific intent is the “intent to produce a specific result, as opposed to intent to do the physical act that produces the result”); Aguilar, 176 Wn. App. at 275 (“Under the doctrine of transferred intent, once the intent to inflict harm on one victim is established, the mens rea transfers to any other victim who is actually assaulted.”). We focus here on the jury instructions because, according to Kelly, when “the government proposed the instructions, they became the elements that the government needed to prove.”
11 No. 86169-7-I
for a new trial is premised on prosecutorial misconduct, the defendant must prove
the prosecutor’s conduct was both improper and prejudicial. State v. Sundberg,
185 Wn.2d 147, 151-52, 370 P.3d 1 (2016). Additionally, if the defendant objected
to the improper conduct at trial, the defendant must show the 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 (2012). If the defendant did not
object, the defendant must show the misconduct was “so flagrant and ill
intentioned” 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.’” Id. at 760-61 (quoting State v.
Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43 (2011)).
First, Kelly asserts the prosecutor committed misconduct by eliciting
testimony in violation of a pretrial order that excluded on hearsay grounds a
statement by one of the Cope children that he had “never seen a bad guy before.”
During trial, the prosecutor asked Ms. Cope, “When you say that everyone was
shaken up, what did you see as far as, you know, how your husband was acting,
how you were acting, how the children were acting?” Ms. Cope provided a lengthy
answer ending with, “The things you say to kids that, you know, like . . . there’s a
bad guy. . . . the police will handle it.” The trial court sustained defense counsel’s
objection to this answer and instructed the jury to disregard it.
Kelly fails to show that the prosecutor’s conduct was improper. The reason
that Ms. Cope eventually testified in violation of a pretrial order is not that the
prosecutor asked an improper question, but rather that she provided a lengthy
narrative response to a proper question. Additionally, the prosecutor warned Ms.
12 No. 86169-7-I
Cope before trial not to reference this excluded statement. Neither the trial court
nor Kelly’s trial counsel believed the prosecutor intentionally sought to elicit the
prohibited “bad guy” statement from Ms. Cope. But even if the prosecutor’s
question was improper, the misconduct did not have a substantial likelihood of
affecting the jury’s verdict because the trial court sustained defense counsel’s
objection and instructed the jury to disregard the testimony, and we presume the
jury followed this instruction. See State v. Gauthier, 189 Wn. App. 30, 39, 354
P.3d 900 (2015).
Second, Kelly alleges the prosecutor committed misconduct by attempting
to shift the burden of proof. “A criminal defendant has no burden to present
evidence, and it is error for the State to suggest otherwise.” State v. Montgomery,
163 Wn.2d 577, 597, 183 P.3d 267 (2008). While a prosecutor can “point out a
lack of evidentiary support for the defendant’s theory of the case,” a prosecutor
may improperly shift the burden of proof by “mentioning during closing argument
that the defense failed to present witnesses or by stating that the jury should find
the defendant guilty based simply on the defendant’s failure to present evidence
to support his defense theory.” State v. Sells, 166 Wn. App. 918, 930, 271 P.3d
952 (2012) (citing State v. Jackson, 150 Wn. App. 877, 885-86, 209 P.3d 553
(2009)).
During closing arguments in this case, defense counsel argued that Kelly
did not form the requisite intent to assault the Copes because he was paranoid
and delusional, but did not refer to Kelly’s methamphetamine use. In response,
the prosecutor argued during rebuttal closing argument, “Counsel talked about the
fact that the defendant was delusional and paranoid. There was evidence of that.
13 No. 86169-7-I
But you have to ask yourself where was the expert to establish the level of
methamphetamine?” The trial court again sustained defense counsel’s objection
based on improper burden shifting and instructed the jury to disregard the remark.
Here, the prosecutor’s statement that the jury must “ask [itself] where was
the expert to establish the level of methamphetamine” was improper burden
shifting because it told the jury that Kelly had to present expert testimony to prove
he could not develop the requisite mens rea to commit the charged offenses due
to his drug use. The State referred to this hypothetical expert testimony for the
first time during its rebuttal closing argument, which deprived Kelly of an
opportunity to explain the absence of any expert testimony. 5 Our case law
recognizes, “Defendants are among the people the prosecutor represents. The
prosecutor owes a duty to defendants to see that their rights to a constitutionally
fair trial are not violated.” State v. Monday, 171 Wn.2d 667, 676, 257 P.3d 551
(2011). But while the prosecutor’s statement was improper, it did not have a
substantial likelihood of affecting the jury’s verdict because the trial court sustained
defense counsel’s objection and instructed the jury to disregard the remark. See
Gauthier, 189 Wn. App. at 39. The trial court did not abuse its discretion in denying
Kelly’s motion for a new trial based on this improper statement.
5 The State’s reliance on the “missing witness doctrine” set forth in State v. Blair, 117 Wn.2d 479,
816 P.2d 718 (1991), is misplaced. The missing witness doctrine permits the State to “point out the absence of a ‘natural witness’ when it appears reasonable that the witness is under the defendant’s control or peculiarly available to the defendant and the defendant would not have failed to produce the witness unless the testimony were unfavorable.” Montgomery, 163 Wn.2d at 598 (citing Blair, 117 Wn.2d at 485-86). Blair is inapposite because it involved a defendant’s failure to call a fact witness that the defendant claimed would support their theory of the case, not a hypothetical expert witness the State asserted the defendant should have called. The State has not cited any authority extending the missing witness doctrine to a case, like Kelly’s, where there is no evidence in the record that the defendant retained an expert who would have testified unfavorably for the defendant.
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Third, Kelly avers that the prosecutor improperly denigrated the dignity of
defense counsel through audible sighs and non-verbal gestures. The record
indicates that one such audible sigh occurred during the following interaction
outside the presence of the jury after the prosecutor argued that certain statements
were inadmissible hearsay:
MR. AUSSERER [Defense]: Well, it’s not hearsay. I—Your Honor, I would appreciate if we could refrain from—
THE COURT: Again, we get back to what we discussed yesterday. And, you know, I know that this—there’s high emotions here. But we are—you know, this is significant and very serious for everybody here, and we need to—Ms. Hauger, if you could refrain from the sighing—the audible sighs. That would be—
MS. HAUGER [Prosecutor]: I apologize. It’s just that I know Mr. Ausserer. I know him to be a very competent attorney, and he knows what hearsay is.
THE COURT: All right.
MS. HAUGER: And I apologize. I will refrain.
THE COURT: Thank you 6
According to Kelly’s post-trial motion for a new trial, jurors indicated after trial that
they “observ[ed] audible responses and obvious emoting [from the prosecutor] in
response to each issue raised during cross examination of all witnesses,” such as
eye-rolling, audible sighs, and “physically react[ing] in a negative manner during
the defendant’s examination.”
If these allegations are correct, then the prosecutor’s conduct was improper
because it impugned the role or integrity of defense counsel and expressed a
6 The trial court’s reference to “what we discussed yesterday” likely relates to its prior statement to
both counsel that “you’re both professionals, and I expect both of you to behave that way. I don’t want to be a referee.”
15 No. 86169-7-I
personal opinion as to the credibility of a witness or the defendant’s guilt. State v.
Lindsay, 180 Wn.2d at 431-32, 437, 326 P.3d 125 (2014). This, too, violates the
prosecutor’s “duty to defendants to see that their rights to a constitutionally fair trial
are not violated.” Monday, 171 Wn.2d at 676. But the audible sigh that is
recounted above—which is the primary focus of Kelly’s appellate argument—
occurred outside the presence of the jury, thereby obviating any prejudicial effect
it may have had on the verdict. And while jurors indicated that such improper
conduct occurred throughout the trial, Kelly did not object and, thus, must show
the conduct was so flagrant and ill intentioned that no curative instruction could
have cured any prejudice. Emery, 174 Wn.2d at 760-61. Because Kelly fails to
show, as he must, that a curative instruction would not have cured any prejudice
from the prosecutor’s improper conduct, his third and final argument also fails. 7
C. Firearm enhancements
Finally, Kelly contends that remand is necessary because the sentencing
court did not know it had discretion to run the firearm enhancements concurrently
under RCW 9.94A.535, which permits a court to impose an exceptional sentence
below the standard sentence range if “substantial and compelling reasons justify[]
an exceptional sentence.” A defendant may seek appellate review from a
discretionary sentence within the standard range in “circumstances where the
7 The trial court likewise concluded that the prosecutor’s sighs and other nonverbal conduct did not
affect the jury’s verdict because “the fact that [the jurors] may have noted [the prosecutor’s] behavior and yet rendered the verdict that they did would indicate to the Court that that was not what they were looking at in making their determination.” While we have carefully scrutinized Kelly’s argument on this point, the applicable standard of review is abuse of discretion and we may properly defer to the trial court’s ruling on this point. See State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997) (“The trial court is in the best position to most effectively determine if prosecutorial misconduct prejudiced a defendant’s right to a fair trial.”) (quoting State v. Luvene, 127 Wn.2d 690, 701, 903 P.2d 960 (1995)).
16 No. 86169-7-I
court has refused to exercise discretion at all or has relied on an impermissible
basis for refusing to impose an exceptional sentence below the standard range.”
State v. Mandefero, 14 Wn. App. 2d 825, 833, 473 P.3d 1239 (2020) (quoting State
v. McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017)). Because our Supreme
Court has squarely held that a sentencing court has no discretion to depart from
mandatory weapon enhancements, we reject Kelly’s argument.
In State v. Brown, our Supreme Court held that “judicial discretion to impose
an exceptional sentence does not extend to a deadly weapon enhancement.” 139
Wn.2d 20, 29, 983 P.2d 608 (1999), overruled on other grounds by State v.
Houston-Sconiers, 188 Wn.2d 1, 21 n.5, 391 P.3d 409 (2017). After adding a
twelve-month deadly weapon enhancement to the defendant’s sentence pursuant
to former RCW 9.94A.310(4)(b), the sentencing court in Brown granted the jury’s
request for leniency and imposed an exceptional sentence downward of seven
months on the defendant’s second degree assault conviction. 139 Wn.2d at 23,
29. On appeal, the Supreme Court remanded for resentencing because the length
of the sentence was shorter than the enhancement range. Id. The court relied on
the “absolute” language of the firearm enhancement statute stating,
“Notwithstanding any other provision of law, any and all deadly weapon
enhancements under this section are mandatory, shall be served in total
confinement, and shall not run concurrently with any other sentencing provisions.”
Id. at 26 (quoting former RCW 9.94A.310(4)(e)).
As the Supreme Court held in Brown and the plain language of the
applicable sentencing statutes confirms, a sentencing court does not have
discretion to impose an exceptional sentence downward by running firearm
17 No. 86169-7-I
enhancements concurrently instead of consecutively. The current version of the
firearm enhancement statute mirrors the statute in Brown by stating,
“Notwithstanding any other provision of law, all firearm enhancements under this
section are mandatory, shall be served in total confinement, and shall run
consecutively to all other sentencing provisions, including other firearm or deadly
weapon enhancements.” RCW 9.94A.533(e) (emphasis added). Thus, the
sentencing court correctly concluded it had no discretion to run the firearm
enhancements concurrently as part of an exceptional sentence.
Kelly argues that Brown is no longer controlling on this issue following the
Supreme Court’s recent decision in Houston-Sconiers, 188 Wn.2d at 21 n.5. This
argument is unconvincing because Houston-Sconiers overruled Brown only to the
extent its holding applied to juvenile sentencing. The court held as follows:
[S]entencing courts must have complete discretion to consider mitigating circumstances associated with the youth of any juvenile defendant, even in the adult criminal justice system, regardless of whether the juvenile is there following a decline hearing or not. To the extent our state statutes have been interpreted to bar such discretion with regard to juveniles, they are overruled. Trial courts must consider mitigating qualities of youth at sentencing and must have discretion to impose any sentence below the otherwise applicable [statutory] range and/or sentence enhancements.
Id. (citing Brown, 139 Wn.2d at 29) (emphasis added). As Kelly acknowledges,
our court has issued multiple opinions holding that Brown is and remains good law
with respect to adult sentencing and that a sentencing court must run firearm
18 No. 86169-7-I
enhancements consecutively when sentencing adults. 8 Consistent with this
controlling precedent, we affirm Kelly’s sentence.
Affirmed.
WE CONCUR:
8 See Mandefero, 14 Wn. App. 2d at 830-32 (“Houston-Sconiers overrules Brown only as it applies
to juveniles”); State v. Brown, 13 Wn. App. 2d 288, 291, 466 P.3d 244 (2020) (”Houston-Sconiers overruled Brown with regard to juveniles only”). Division Three of the Court of Appeals has reached the same conclusion. State v. Wright, 19 Wn. App. 2d 37, 52, 493 P.3d 1220 (2021) (“Brown remains good law as applied to adult offenders”). Similarly, Kelly’s argument that we should rely on Justice Madsen’s concurring opinion in Houston-Sconiers stating that a trial court has “discretion to depart from the otherwise mandatory sentencing enhancements when the court is imposing an exceptional sentence,” 188 Wn.2d at 34, has also been squarely rejected by our court. See Brown, 13 Wn. App. 2d at 291 (our court “does not have the authority to overrule Brown” because “a decision by the Washington Supreme Court is binding on all lower courts of the state”).