CUO T OF
APPEALS
DIVIS1
2013 APR -9 AM 9: 0
IN THE COURT OF APPEALS OF THE STATE OF WASHIN
DIVISION II
STATE OF WASHINGTON, No. 41068 1 II - -
Respondent,
UNPUBLISHED OPINION
V.
PAUL W. GEBHARDT, t.
BRIDGEWATER, J. .
T. Paul Gebhardt appeals from his conviction for second P —
assault with an aggravating factor of committing the crime against a law enforcement officer;he also appeals the trial court's denial of his motion for a new trial. No claimed error, including the
arguments in his statement of additional grounds (SAG), any merit. We affirm the has
conviction and the trial court's denial of his motion for anew trial.
FACTS
On May 29, 2009, at approximately 10: 5 PM, Tacoma Police Department Officers Paula
4
Kelly and Ryan Koskovich were dispatched to the area of North 49th and Visscher Street in response to a report of dogs killing a cat. After arriving on the scene, they spoke with the caller,
who stated that three dogs had come from the southwest, killed the cat, and were " he neighbors'
t
dogs."Report of Proceedings (RP)at 80 81. Kelly encountered two aggressive dogs and, to -
prevent an attack on herself, she fired her weapon. An investigation by other responding officers
1 Judge C. C. Bridgewater is serving as a judge pro tempore of the Court of Appeals, Division II, pursuant to CAR 21( ).
c
2 RAP 10. 0.
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ensued concerning her discharge of her firearm.
That investigation led to another investigation when a citizen reported being bitten by a dog that had escaped from the fenced.backyard of Gebhardt's residence. While they were still in front of his residence, a truck driven by Gebhardt quickly approached, swerved around Kelly's
patrol car onto the street's shoulder, and stopped when Kelly stepped in front of it. Gebhardt -
exited the truck and contacted the officers. Kelly described his demeanor as "argumentative" and "indignant."RP at 272. At some point,the officers established that Gebhardt owned the dog at which Kelly had fired a round.
Kelly went into an alley to examine the backyard fence's gate and determine how the dog escaped; Gebhardt eventually slammed the gate on her arm causing a scar. Kelly,Koskovich,
and other officers entered the backyard to arrest Gebhardt for assault. Gebhardt struggled with -
the officers on the ground, turned face up,and obtained a rock. According to Kelly, Gebhardt -
repeatedly swung the rock toward Koskovich, although Koskovich prevented him from
completing his swing and connecting with the rock. Both Koskovich and another officer described the rock as "softballsized "and testified that, because of its size,they felt the rock
presented a life -
threatening situation if Gebhardt had swung and connected with it. RP at.73,
5
680, 682. Rocks were collected from the scene.
Gebhardt's girl friend disputed the officers' version of the events, testifying that Kelly had provoked Gebhardt, he was on the ground when the officers entered the backyard, the officers beat him without provocation, and at no time did he have a rock or offer any resistance.
The State charged Gebhardt with second degree assault of Koskovich with a law enforcement officer aggravating factor, third degree assault of Koskovich, and third degree
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No.41068 1 II - -
assault of Kelly. Before trial, Gebhardt successfully moved to admit audio recordings from his digital recorder. The first recording was 25 minutes long and primarily consisted of Gebhardt's conversations with law enforcement in front of his house and in the backyard before the altercation began; approximately 20 to 30 seconds at the end captured part of the altercation. After an unexplained gap, the second recording captured another 6 seconds of the altercation.
At trial,the jury heard the audio recordings Gebhardt had made of the events, and the jury saw photographs of the officers' injuries and the conditions of their uniforms after the altercation; for example, one of the officers had a cut on one of his fingers and his uniform had dirt on its left shoulder, chest, and knees.
The jury found Gebhardt guilty of second degree assault, found that the State had proven the law enforcement officer aggravating factor, and found Gebhardt guilty of the third degree assault of Koskovich, but it acquitted him of the third degree assault of Kelly.
Gebhardt moved for a new trial based on the trial court's denial of his self defense
instruction and instances of prosecutorial misconduct during. losing argument. Gebhardt
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subsequently obtained new counsel, who filed two supplemental motions for a new trial alleging that trial counsel had denied Gebhardt his right to testify in his own defense, the trial court had violated Gebhardt's right to be present, the prosecutor had committed numerous instances of prosecutorial misconduct, and trial counsel had been ineffective on numerous occasions. The trial court denied all these motions. Gebhardt appealed.
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ANALYSIS
I. RIGHT To TESTIFY
During trial,the parties and the trial court discussed the need for defense counsel to confer with Gebhardt after his girl friend was excused as a witness, and to.confirm whether Gebhardt would testify in order to finalize witness scheduling. The State mentioned, without objection or correction from defense counsel, that defense counsel thought Gebhardt would not testify. After the trial court excused his girl friend as a witness, it addressed defense counsel,
stating, You need some period of time to discuss this issue with your client. Is 15 minutes "
sufficient ?" RP at 1003. After defense counsel agreed, the trial court recessed. When the trial
court reconvened, Gebhardt rested his case without testifying.
In an e mail written to defense counsel after he rested his case, but before the jury -
returned its verdict, Gebhardt stated, I am very happy with the way you've conducted trial for "
the most part and I plan on giving you the civil case."Clerk's Papers (CP)at 509. But in his affidavit supporting his motion for a new trial,Gebhardt stated that he wanted to testify and was stunned"when defense counsel rested without calling him as a witness. CP at 502. Gebhardt also stated that defense counsel "repeatedly told [him]that [defense counsel] was in charge of his
representation,"
advised him not to testify, and did not tell him that he controlled the decision
whether to testify. CP at 502.
At the hearing on Gebhardt's motion for a new trial,the trial court examined a draft transcript of the trial proceedings, read the pertinent portions to the parties, and recalled that the purpose of the 157minute recess at trial was for defense counsel to confer with Gebhardt
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regarding whether he would testify. The trial court ruled that Gebhardt's post trial assertions, -
without further support, lacked credibility when compared with the trial record.
Gebhardt argues that the trial court abused its discretion in denying his motion for a new trial because trial counsel failed to inform him of his right to testify on his own behalf, thus preventing him from exercising that right. We disagree.
We review a trial court's grant or denial of a motion for a new trial for abuse of
discretion. State v. Jackman, 113 Wn. d 772, 777, 783 P. d 580 (1989).A trial court abuses its 2 2
discretion when it bases its.
decision on unreasonable or untenable grounds. State v. Rafay, 167
Wn. d 644, 655, 222 P. d 86 (2009).
2 3
A criminal defendant has a federal and state constitutional right to testify on his or her
own behalf. State v. Thomas, 128 Wn. d 553, 556 57,562, 910 P. d 475 (1996).This right is 2 - 2
fundamental and cannot be abrogated by defense counsel or by the trial court. Thomas, 128
Wn. d at 558. Only the defendant has the authority to decide whether or not to testify.
2
Thomas, 128 Wn. d at 558. Although the defendant does not need to waive the_ to testify 2 right
on the record, such a waiver must be made knowingly, voluntarily, and intelligently.
Thomas, 128 Wn. d at 558. Trial courts rely on defense counsel to inform defendants of their
2
constitutional right to testify. Thomas, 128 Wn. d at 560.
2
Mere allegations by a defendant that his attorney prevented him from testifying are insufficient to justify reconsideration of the defendant's waiver of the right to testify."State
v. Robinson, 138 Wn. d 753, 760, 982 P. d 590 (1999).Instead, defendants must show some 2 2
particularity "' to give their claims sufficient credibility and show they warrant a reference
hearing. Robinson, 138 Wn. d at 760 (quoting Underwood v. Clark, 939 F.d 473, 476 (7th Cir.
2 2
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In doing so, the defendant must "` 199 1)). allege specific facts "' and must demonstrate those
facts' credibility from the record. Robinson, 138 Wn. d at 760 (quoting Passos-
2 Paternina v.
United States, 12 F. Supp. 2d 231, 239 ( P.1998)).
R.
D.
For example, in Robinson, the defendant provided affidavits from several other people,
including a security guard and his trial counsel, stating that the defendant had " leaded"to testify
p
and that trial counsel refused to reopen the evidence to accommodate Robinson's request
because of counsel's frustration with the trial court. Robinson, 138 Wn. d at 756 57,760 61.
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Our Supreme Court held that Robinson made a sufficient showing that trial counsel prevented him from testifying, thus warranting remand for a reference hearing on whether his waiver of his
right to testify was knowing and voluntary. Robinson, 138 Wn. d at 761.
2
Unlike in Robinson, Gebhardt provided only his own affidavit stating that he was not advised that he controlled his right to testify, he always maintained to defense counsel that he wanted to testify, and he was "stunned"when defense counsel rested without calling him as a witness. RP at 502. These assertions lacked credibility when compared with the record, which demonstrated that defense counsel conferred with Gebhardt specifically on whether he would testify and that Gebhardt was "very happy"with defense counsel's representation immediately after trial. RP at 502. Accordingly, Gebhardt's affidavit, standing alone, was insufficient to warrant a reference hearing. The trial court did not abuse its discretion in denying Gebhardt's motion for a new trial on this basis, and his claim fails.
II. RIGHT To BE PRESENT
During trial,on June 10, 2010,after the close of evidence, the trial court memorialized two side bar discussions it had with counsel earlier that day. It stated:
no
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The other side bar was not technically a side bar. It occurred kind of in chambers.
You all walked down the hallway at about ... 10: 5 [AM], advise me that the 3 to
decision had been made that Mr. Gebhardt was choosing not to testify in this case and, therefore, the defense would come back with the jury present and rest.
RP at 1003.
Gebhardt argues that the trial court abused its discretion in denying his motion for a new trial because this hallway sidebar violated his right to be present during critical stages of his trial or during proceedings affecting his substantial rights. We disagree.
We review constitutional issues de novo. State v. Irby, 170 Wn. d 874, 880, 246 P. d 2 3
796 (2011).Washington courts have " outinely analyzed alleged violations of the right of a
r
defendant to be present by applying federal due process jurisprudence."Irby, 170 Wn. d at 880.
2
Under the federal constitution, a]
"[ criminal defendant has a fundamental right to be present at
all critical stages of a trial."
Irby, 1 70 Wn. d at 880. Washington courts have also recognized
2
that a defendant's right to " ppear and defend"under the state constitution may be broader than
a
the federal right to be present, as the state constitutional right attaches to proceedings where a
defendant's substantial rights may be affected."Irby, 170 Wn. d at 885 n. ;see also State v.
" 2 6
Bennett, 168 Wn. App. 197, 204 n. ,275 P. d 1224 (2012)stating the same).
6 3 (
Even assuming without deciding that a defendant's federal or state constitutional right to be present attaches to proceedings during which defense counsel informs the trial court whether the defendant will testify, violations of the right are subject to constitutional harmless error
analysis. Irby, 170 Wn. d at 885 86. Under this standard, the State bears the burden to prove 2 -
that the error was harmless beyond a reasonable doubt. Irby, 170 Wn. d at 886.
2
Here, Gebhardt appears to argue that his absence from the hallway side bar deprived him of an opportunity to correct the trial court's conclusion that Gebhardt, after discussing the matter
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with defense counsel during recess, had chosen not to testify. But the State correctly observes that the trial court notified Gebhardt in open court of the hallway discussion, including defense counsel's representation that Gebhardt chose not to testify. Accordingly, Gebhardt was informed of and had an opportunity to contest defense counsel's earlier representations. Any error in excluding Gebhardt from the earlier hallway discussion was harmless, and his claims fail.
III. ADMISSION OF DOG BREED EVIDENCE
Gebhardt contends that the trial court abused its discretion in allowing the State and
witnesses to refer to Gebhardt's dog as a " it bull." at 38. But Gebhardt fails to support his p RP
argument with citations to the record where he objected to these references. We do not address
arguments unsupported by citations to the record. See RAP 10. ( v. Thomas, 150 a)(State
6);
3
Wn. d 821, 874, 83 P. d 970, abrogated in part on other grounds, Crawford v. Washington, 541 2 3
U. . 36, 124 S. Ct. 1354, 158 L.Ed. 2d 177 (2004).And without an objection, evidentiary errors S
are not preserved for appeal. State v. Davis, 141 Wn. d 798, 850, 10 P. d 977 (2000).
2 3
Accordingly, his claim fails.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Gebhardt also raises several claims of ineffective assistance of counsel that we address in turn. We review claims of ineffective assistance of counsel de novo. State v. McFarland, 127
Wn. d 322, 334 35,899 P. d 1251 (1995).To prevail on a claim of ineffective assistance, a 2 - 2
defendant must show both deficient performance and resulting prejudice. Strickland v.
Washington, 466 U. .668, 687, 104 S. Ct. 2052, 80 L.Ed. 2d 674 (1984).Counsel's
S
performance is deficient if it fell below an objective standard of reasonableness. State v.
Stenson, 132 Wn. d 668, 705, 940 P. d 1239 (1997).Our scrutiny of defense counsel's 2 2
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performance is highly deferential, and we employ a strong presumption of reasonableness.
Strickland, 466 U. . at 689; McFarland, 127 Wn. d at 335 36. To rebut this presumption, the S 2 -
defendant bears the burden of establishing the absence of any "` conceivable legitimate tactic
explaining counsel's performance. "' State v. Grier, 171 Wn. d 17, 42, 246 P. d 1260 (2011)
2 3
quoting State v. Reichenbach, 153 Wn. d 126, 130, 101 P. d 80 (2004)). establish 2 3 To
prejudice, a defendant must show a reasonable probability that the trial outcome would have
been different absent counsel's deficient performance. State v. Thomas, 109 Wn. d 222, 226,
2
743 P. d 816 (1987).Failure on either prong of the test is fatal to a claim of 2
ineffective assistance of counsel. Strickland, 466 U. . at 697.
S
A. Failure To Make Suppression Motion Gebhardt argues that defense counsel was ineffective when he failed to move to suppress
evidence based on Kelly's unlawful intrusion onto his property by reaching over his fence. When an appellant alleges ineffective assistance of counsel based on the failure to move to
suppress evidence, he must show that the trial, ourt likely would have granted the motion.
c
McFarland, 127 Wn. d at 333 34.
2 -
Our Supreme Court has held that when police officers ( ) identified as such, 2)
1 are ( are
performing their official duties in good faith, and (3) not exploit any constitutional violation, do
evidence of assault against them after an unlawful entry is not barred by the exclusionary rule.
3 Gebhardt grossly mischaracterizes the record by stating that defense counsel " oved to
m
suppress evidence that police had any exigent circumstance that permitted them to enter the defendant's property."Br. of Appellant at 10. Gebhardt actually objected to the State's motion in limine to exclude questions about whether Gebhardt had committed a crime before law enforcement entered his property. Gebhardt argued that he was entitled to inquire about the absence of exigent circumstances in order to demonstrate the unreasonableness of Kelly's actions in testing the fence.
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State v. Mierz, 127 Wn. d 460, 475, 901 P. d 286 ( 995).The Mierz court reasoned that, in 2 2 1
such circumstances, evidence of assault does not flow from the constitutional violation and is
outside the exclusionary rule's scope. Mierz, 127 Wn. d at 475. Also, contrary to public policy,
2
suppressing such evidence would allow suspects to assault police officers with impunity in cases
of unlawful entry. Mierz, 127 Wn. d at 473 74. Thus, even assuming without deciding that law 2 -
enforcement officers unlawfully entered Mierz's property, our Supreme Court held that Mierz's assault of the officers did not arise from exploitation of a constitutional violation and, thus, the
exclusionary rule did not require suppression. Mierz, 127 Wn. d at 475.
2
Here, even assuming without deciding that Kelly unlawfully entered Gebhardt's property by reaching over his fence, Gebhardt knew that Kelly was a police officer, Kelly believed she was lawfully investigating the previous dog attacks, and Gebhardt's assault of Kelly and Koskovich did not arise from exploitation of the assumed unlawful entry. Accordingly,the trial
court likely would not have granted a motion suppressing evidence of the subsequent assaults. Defense counsel was not ineffective for not moving to suppress evidence of the assaults, and
Gebhardt's claim fails. B. Failure To Object to Statements or Request Limiting Instructions Re: Dog Attacks Gebhardt further argues that defense counsel was ineffective when he failed to object to
hearsay statements in Kelly's testimony that ( )
1 unidentified dogs had attacked and killed a cat
and (2) citizen's statements that a dog had escaped from Gebhardt's backyard and bitten her.
the
But the charges in this case arose from assaults against law enforcement officers,not dog attacks. Defense counsel sought to minimize the dog attacks, describing them in closing as a
r] herring"or "rabbit trail." at 1168. But defense counsel also actively sought to portray ed RP
11
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Kelly as "upset"and "agitate[ d]"
after being attacked by dogs she believed belonged to Gebhardt
and had been involved in previous attacks, causing her to " verreact"to Gebhardt's use of the
o
voice recorder and his " one of voice"in an attempt to "
t adjust [ Gebhardt's]
attitude."RP at
1161 63. Defense counsel necessarily needed the audio recordings to establish Kelly's and -
Gebhardt's tones during their exchanges, and the recordings of the exchanges contained the hearsay statements. Likewise, the neighbor attacked by the dog testified at trial. Thus, conceivably in order to avoid emphasizing them, defense counsel refrained from objecting to any hearsay statements about the dog attacks or requesting an instruction to limit the statements' purpose because they were merely cumulative of the neighbor's testimony or statements in the audio recordings that were central to his theory of the case. Accordingly, defense counsel's lack
of objection to these statements was a conceivably legitimate trial tactic. See Grier, 171 Wn. d
2
at 42. Defense counsel's performance was not deficient, and Gebhardt's claim fails.
C. Failure To Request Limiting Instructions Regarding Dog Ownership Statements Gebhardt finally argues.that defense counsel was ineffective for failing to object to
hearsay statements that " he marauding dogs belonged to [him]." of Appellant at 58. But t Bn
Gebhardt does not cite,to any portions of the record in which the trial court admitted hearsay statements expressly stating that the dogs belonged to him. We do not address arguments
unsupported by citations to the record. See RAP 10. ( a)(Thomas, 150 Wn. d at 874.
6);
3 2
Even if we addressed this issue on its merits, the audio recording of Gebhardt's interactions with the law enforcement officers contained statements to this effect, and one of defense counsel's themes during closing argument was that Kelly overreacted to Gebhardt's tone during the interactions containing these statements. Accordingly, as stated above, defense
12
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counsel needed the audio recording statements as part of his case and conceivably refrained from objecting to cumulative instances of those statements to avoid emphasizing them. Thus, defense counsel's lack of objection was a conceivably legitimate trial tactic and did not constitute deficient performance. Gebhardt's claim fails.
V. PROSECUTORIAL MISCONDUCT
Gebhardt raises numerous claims of prosecutorial misconduct, which we address in turn.
A defendant claiming prosecutorial misconduct must show both improper conduct and resulting
prejudice. State v. Fisher, 165 Wn. d 727, 747, 202 P. d 937 (2009).Prejudice exists where 2 3
there is a substantial likelihood that the misconduct affected the verdict. State v. McKenzie, 157
Wn. d 44, 52, 134 P. d 221 (2006).We review a prosecutor's comments during closing 2 3
argument in the context of the total argument, the issues in the case, the evidence addressed in
the argument, and the jury instructions. State v. Dhaliwal, 150 Wn. d 559, 578, 79 P. d 432 2 3
2003).If a defendant establishes that the State made improper statements, then we review
whether those improper statements prejudiced the defendant under one of two different standards of review. State v. Emery, 174 Wn. d 741, 760 61,278 P. d 653 (2012).
2 - 3
First,where the defendant preserved the issue by objecting at trial, we evaluate whether there was a substantial likelihood that the improper comments prejudiced the defendant by
affecting the jury. Emery, 174 Wn. d at 761. But if the defendant failed to object to the
2
improper argument at trial,we employ a different standard of review. See Emery, 174 Wn. d at
2
760 61. Under this second, heightened standard, the defendant must show that the State's -
misconduct " as so flagrant and ill intentioned that an instruction could not have cured the
w
resulting prejudice."Emery, 174 Wn. d at 761 62. This more stringent standard of review
13
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requires the defendant to show that "( no ` 1) curative instruction would have obviated any
prejudicial effect on the jury' and (2) misconduct resulted in prejudice that `had a substantial the
likelihood of affecting the jury verdict. "' Emery, 174 Wn. d at 761 (quoting State v.
2
Thorgerson, 172 Wn. d 438, 455, 258 P. d 43 (2011)). conducting this analysis, we focus 2 3 In
more on whether the prejudice resulting from the State's misconduct could have been cured.
Emery, 174 Wn. d at 762.
2
A. Claims Not Addressed
Gebhardt argues that the prosecutor committed prosecutorial misconduct requiring reversal when he "advised the police witnesses to not answer questions about [Tacoma Police
Department] policies and training regarding use of force on citizens "; prevented " trial counsel
from questioning witnesses about [whether ` Gebhardt's dogs had terrorized the neighbor on
more than one occasion prior to the charged date] ";prevented trial counsel from asking the "
animal control officer about any prior contacts with Mr. Gebhardt about [sic] his dogs "; and
violated the court's order regarding the scope of the evidence he could adduce regarding police
job consequences if officers lied " during closing argument. Br. of Appellant at 42 43,48.
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But Gebhardt fails to support any of these claims with citations to relevant parts of the
record or discuss his citations with particularity. It is not the fiuzction of an appellate court " o
t
comb the record with a view toward constructing arguments for counsel."In re Estate ofLint,
4 Gebhardt again grossly misrepresents the record. Gebhardt claims that the " rial court
t
sustained [his]motion to exclude this evidence that Kelly ... was subject to punishment if she falsified police reports, committed perjury, or used excessive force"and that the trial court entered an " rder"excluding all such evidence. Br. of Appellant at 11, 48. But the trial court
o
sustained only Gebhardt's objection,. based on relevance, to Kelly's testimony about how many years she planned to remain serving as a police officer.
14
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135 Wn. d 518, 532, 957 P. d 755 (1998); also RAP 10.
2 2 see a)( Accordingly, we do not 6).
3(
address these claims.
Further, Gebhardt contends that the prosecutor committed misconduct when he "argued that all of the police would have had to engage in a dastardly and criminal conspiracy had they
perjured themselves in the same way." of Appellant at 48 (emphasis omitted).Beyond this Br.
solitary, conclusory statement, Gebhardt offers no further argument supporting this claim. Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial
consideration."State v. Hathaway, 161 Wn. App. 634, 650 n.0, 251 P. d 253, review denied, 1 3
172 Wn. d 1021 (2011).Accordingly, we do not address this claim.
2
B. " Just Verdict"and " eclare The Truth"Arguments
D
During closing argument, the prosecutor urged the jury to return a "just verdict"and a
true verdict according to the evidence and the law." at 1112. The prosecutor also stated:
RP
The word "
verdict"itself comes from the Latin word " eredictum,"
v which means
to declare the truth. And so by your decision in this case, you will declare the truth about whether the defendant assaulted Ryan Koskovich, and the truth about whether he assaulted Paula Kelly.
RP at 1113 14.
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Gebhardt contends that these arguments constituted prosecutorial misconduct requiring reversal. We disagree. The just verdict and true verdict arguments, when viewed in context,
were proper. Further, although the " eclare the truth"argument was improper, Gebhardt did not
d
object to it at trial,which would have allowed the trial court to negate any prejudice with a curative instruction.
We have recently held that "[ t is not misconduct for the State to ask the jury to return a i]
just verdict supported by the evidence."State v. Fuller, 169 Wn. App. 797, 822, 282 P. d 126
15
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2012)citing State v. Curtiss, 161 Wn. App. 673, 701, 250 P. d 496, review denied, 172 Wn. d ( 3 2
1012 (2011)).
Because the State asked the jury to return a just or true verdict supported by the
evidence and consistent with the law, the prosecutor's argument was not improper.
But our Supreme Court has held that the " eclare the truth"argument is improper.
d
Emery, 174 Wn. d at 760. Because Gebhardt did not object to the argument at trial,however,
2
we review this claim under a heightened standard, asking whether "( no ` 1) curative instruction
would have obviated any prejudicial effect on the jury' and (2) misconduct resulted in the
prejudice that ` ad h a substantial likelihood of affecting the jury verdict. "' Emery, 174 Wn. d at
2
761 (quoting T.
horgerson, 172 Wn. d at 455).As our Supreme Court observed in Emery, such
2
an argument could have been cured by an instruction from the trial court. Emery, 174 Wn. d at
2
764. Thus, because Gebhardt failed to object to the argument at trial and obtain a curative
instruction, his claim fails. Accord Emery, 174 Wn. d at 764.
2
C. Vouching For Witnesses During trial,Kelly testified that honesty was "paramount"for police officers because
dishonesty"would " uin an officer's]
r [ credibility"and everything an officer said " eyond that
b
point would always come under suspicion."RP at 533. She also testified that police officers must certify police reports under penalty of perjury and that, as a felony, a perjury conviction would end her police career because she would be stripped of her right to possess firearms. During closing argument, the prosecutor stated:
A] you go through their testimony and consider their testimony, keep in mind
s
that there really isn't anything that a police officer can do that's more damaging or career ending than to lie about a contact with a suspect.
Well, I suppose there is one thing worse than filling out a police report that has falsity, and that is taking the stand and raising your right hand and swearing to tell the truth under penalty of perjury. Because a police officer with a
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perjury conviction, a police officer with a perjury charge, a police officer who is rumored to have committed perjury, has zero credibility left and that's the end.
RP at 1126 27.
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Gebhardt argues that these closing arguments constituted improper vouching for witness credibility. It is improper for a prosecutor to state a personal belief as to the credibility of a
witness. State V. Warren, 165 Wn. d 17, 30, 195 P. d 940 ( 008).But we will not find 2 3 2
prejudicial error " nless it is clear and unmistakable that counsel is expressing a personal
u
such opinion," as, I believe [the "` witness]. I believe him. "' Warren, 165 Wn. d at 30; State v.
2
Brett, 126 Wn. d 136, 175, 892 P. d 29 (1995)emphasis omitted) quoting State v. Sargent, 40 2 2 ( (
Wn. App. 340, 343, 698 P. d 598 (1985)). a prosecutor has wide latitude to comment on 2 And
the evidence introduced at trial and to draw inferences from that evidence. Fisher, 165 Wn. d at
2
747.
Here,the prosecutor did not make statements of personal belief about the law enforcement witnesses' credibility. Rather, he argued inferences from the evidence adduced at trial regarding the potential consequences of dishonesty and perjury on a police officer's career.
Accordingly, the prosecutor's arguments were not improper, and Gebhardt's claim fails. D. Comment on Constitutional Right
Finally,during closing argument and in the context of explaining why the State did not have to prove Gebhardt's motive, the prosecutor stated:
I mean, when you take a step back and look at this case, you have to say to yourself, what was so important about that backyard that the defendant was so determined to keep the police from?Turns out they're inside of it and there isn't anything controversial about it,anything at all. And so, you know, it would be an impossible task to put on the State proving why people do what they do.
RP at 1115.
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Gebhardt argues that the prosecutor committed misconduct requiring reversal when he impermissibly commented on Gebhardt's constitutional right to exclude law enforcement from his property. But a prosecutor may touch on a defendant's exercise of a constitutional right,
provided the prosecutor does not "` manifestly intend[] remarks to be a comment on that the
right. "' State v. Gregory, 158 Wn. d 759, 807, 147 P. d 1201 (2006)quoting State v.
2 3 (
Crane, 116 Wn. d 315, 331, 804 P. d 10 (1991)).
2 2
Here, when viewed in context,the prosecutor's argument was an explanation of why the State did not have to prove motive, as opposed to a comment manifestly inviting the jury to draw a negative inference from Gebhardt's exercise of a constitutional right. Accordingly, the
prosecutor's argument was not improper, and Gebhardt's claim fails.
VI. SUFFICIENCY OF THE EVIDENCE
Gebhardt argues that sufficient evidence does not support his conviction for second degree assault. We disagree.
Sufficient evidence supports a conviction if,when viewed in the light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime
proved beyond a reasonable doubt. State v. Hosier, 157 Wn. d 1, 8, 133 P. d 936 (2006).On 2 3
appeal, we draw all reasonable inferences from the evidence in favor of the State and interpret
them most strongly against the defendant. Hosier, 157 Wn. d at 8. In the sufficiency context,
2
we consider circumstantial evidence as probative as direct evidence. State v. Goodman, 150
Wn. d 774, 781, 83 P. d 410 (2004).We may infer specific criminal intent of the accused from 2 3
conduct that plainly indicates such intent as a matter of logical probability. Goodman, 150
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No.41068 1 II - -
Wn. d at 781. We defer to the fact finder on issues of conflicting testimony, witness credibility, 2
and persuasiveness of the evidence. Thomas, 150 Wn. d at 874 75.
. 2 -
Gebhardt specifically argues that, g] the wild inconsistencies between the State's "[ iven
witnesses, this court must find"that sufficient evidence does not support Gebhardt's second degree assault conviction. Br. of Appellant at 66. But we defer to the fact finder on such issues.
Thomas, 150 Wn. d at.874 75. Further, Gebhardt yet.gain fails to support many of his factual 2 - a
assertions with citations to the record. To the extent, if any, that Gebhardt raises sufficiency challenges not based on witness credibility, we ordinarily would not consider those challenges.
Lint, 135 Wn. d at 532; see also RAP 10.
2 a)( However, because Gebhardt also raises the 6).
3(
issue in his SAG, we nonetheless consider the merits of his sufficiency challenge.
In order to convict Gebhardt of second degree assault of Koskovich, the State had to prove that Gebhardt assaulted Koskovich with a deadly weapon. The trial court's instructions to
the jury defined an " ssault"in two ways: ( ) " act done with intent to inflict bodily injury a 1 an
upon another, tending but failing to accomplish it and accompanied with the apparent present
ability to inflict the bodily injury if not prevented"and (2) " act done with the intent to create an
in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury."CP at 328. Finally,the trial
court's instructions defined "[ eadly weapon"as "any weapon, device, instrument, substance, or d]
article,which under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm. CP at 329.
5 And Gebhardt yet again misrepresents the record. For example, he claims that Renae Campbell, a forensics technician, testified " or"
f him,when Campbell actually testified as a rebuttal witness for the State.
19
- -
Here, Gebhardt repeatedly swung a softball sized rock toward Koskovich. The jury -
could reasonably infer Gebhardt's intent to inflict or create an apprehension of bodily injury from his actions. Further, Koskovich and another officer testified that they felt that Gebhardt's acts threatened their lives and, thus, had a reasonable apprehension and imminent fear of bodily injury. Finally,the jury could reasonably infer from the rock's size and the officers' testimony that the rock, when used as a club during a struggle on the ground, was capable of causing death or substantial bodily harm. Accordingly, sufficient evidence supported Gebhardt's conviction, and his claim fails.
VII. FAILURE To PROVIDE DRAFT TRIAL TRANSCRIPTS
Gebhardt contends that the trial court abused its discretion during the hearing on his motion for a new trial by failing to provide copies of the draft trial transcripts reviewed by the
trial court. But in support of his argument, he cites only CR 5 for the proposition that " uperior
s
court rules also mandate that the parties serve upon each other all written materials to be relied
upon, for example, in motions before the court."Br.of Appellant at 28 29 ( mphasis added).
- e
Gebhardt fails to explain how CR 5 compels the trial court, a nonparty, to provide such draft transcripts in a criminal trial;nor does he cite any relevant authority supporting that proposition. We do not consider claims unsupported by argument or citation to legal authority.
RAP 10. ( a)(Cowiche Canyon Conservancy v. Bosley, 118 Wn. d 801, 809, 828 P. d 549 6);
3 2 2
1992).
20
- -
VIII. SAG ISSUES
Gebhardt also raises numerous issues in his SAG. We address each in turn, finding them meritless.
A. Prosecutorial Misconduct
Gebhardt argues that the prosecutor committed reversible misconduct by referring to one
of Gebhardt's dogs as a "pit bull"and "encouraging"or " llowing"his witnesses to do so. SAG
a
at 2. But Kelly testified that the dog "ooked like a [pit bull]," she was familiar with l that
American Bulldogs, and they both have the "same general characteristics." SAG at 1 -2. Accordingly, the prosecutor's and witnesses' statements were supported by the evidence and, thus, proper. Moreover, even if they were improper, there is no substantial likelihood that incorrect references to a dog's breed affected the jury's verdict in a case involving assault on law enforcement officers with a fence gate and a rock. Accordingly, Gebhardt cannot establish prejudice, and his claim fails.
Gebhardt further contends that the prosecutor committed reversible misconduct when he
referred to Gebhardt's dog as a "dangerous dog"or " otentially dangerous dog"and allowed
p
Kelly to use the "dangerous dog"term during her testimony. SAG at 2. But Gebhardt cites to statements made by the prosecutor during pretrial proceedings. Moreover, Kelly testified only that the neighbor's report of being attacked by a dog necessitated an expanded investigation
because such a dog " ould be deemed as a dangerous dog." at 258. Accordingly, even if the c RP
statements were improper, Gebhardt fails to show a substantial likelihood that pretrial statements
or a self -
evident statement during trial affected the jury's verdict in this assault case. See
Emery, 174 Wn. d at 760. Gebhardt cannot demonstrate prejudice, and his claim fails.
21
- -
Gebhardt also argues that the prosecutor committed reversible misconduct by " nowingly
k
giving misleading information regarding the definition of reasonable doubt "'
` during closing
argument. SAG at 2. Although RAP 10. 0 does not require the appellant, to refer to the record
1
or cite authority, he is required to inform us of the " ature and occurrence of the alleged errors."
n
These assertions of error are too vague to allow us to identify the issue and we do not reach it.
Gebhardt finally contends that the prosecutor committed reversible misconduct during
closing argument when he called Gebhardt an "arrogant jerk," "
obnoxious citizen," "
attitudinal,"
belligerent," other disparaging terms, and stated that Gebhardt " ichly deserved"getting and r
beat[ n]up."
e SAG at 2. Although the prosecutor's statements were perhaps illconsidered , he
explained that they were based on evidence of Gebhardt's behavior preceding the altercation, not Gebhardt's character, and that the jury could reach their own conclusion from the audio recordings and other evidence it heard. Accordingly, the prosecutor argued proper inferences from the evidence, and Gebhardt's claim fails. B. Ineffective Assistance of Counsel
Gebhardt argues that defense counsel was ineffective during closing argument when he contradicted the girl friend's testimony. But defense counsel argued only that, if the jury disbelieved her testimony that Gebhardt was not standing at the fence when Kelly's arm was injured, it might still find that Gebhardt did not intentionally injure her. Defense counsel's argument was not deficient in pursuing a legitimate trial tactic, and Gebhardt's claim fails. See
Grier, 171 Wn. d at 42.
2
Gebhardt next contends that defense counsel was ineffective during trial when he referred
to the altercation as a "fight."
SAG at 2. But two instances of defense counsel using terms that
22
- -
offend Gebhardt's subjective preferences cannot constitute objectively deficient performance by
any measure. See Stenson, 132 Wn. d at 705. His claim fails.
2
Gebhardt further contends that defense counsel was ineffective when he prevented Gebhardt from testifying and failed to inform him of his constitutional right to testify. Because we disposed of this claim above, we do not address it again.
Gebhardt next argues that defense counsel was ineffective when he advised Gebhardt against moving for the trial court judge to recuse herself after she informed the parties that she was a next -door -neighbor to Sergeant Kirk Martin, a police officer involved in Gebhardt's arrest. But this alleged advice by defense counsel refers to matters outside of the record. This court will
not review claims based on matters outside the record on direct appeal. McFarland, 127 Wn. d
2
at 335.
Gebhardt also contends that defense counsel was ineffective when he did not cross-
examine the neighbor attacked by Gebhardt's dog. But the neighbor testified primarily about being attacked by Gebhardt's dog. As we discussed above, this was an assault case that was not
based on dog attacks, and defense counsel referred to the evidence of dog attacks as a "[ ed r]
herring"or " abbit trail"in closing argument. RP at 1168. Defense counsel was conceivably
r
trying to minimize such evidence and did not provide deficient performance by pursuing a
legitimate trial tactic. See Grier, 171 Wn. d at 42; Stenson, 132 Wn. d at 705. His claim fails.
2 2
Gebhardt additionally argues that defense counsel was ineffective when he failed to object to the admission into evidence during Koskovich's testimony of one of the rocks collected from the scene. But Koskovich also testified that he could not identify the rock as the one with which Gebhardt tried to strike him. Even assuming without deciding that defense counsel was
23
- -
deficient, Gebhardt cannot demonstrate a reasonable probability that its admission affected his
trial's outcome. See Thomas, 109 Wn. d at 226. His claim fails.
2
Gebhardt further argues that defense counsel was ineffective when he " id not adequately
d
protect, or lay the foundation for, [ Gebhardt's]
constitutional right to a claim of self -
defense."
SAG at 3. But the record reflects that defense counsel, albeit unsuccessfully, requested a self defense instruction and provided the trial court with relevant facts and legal authority. Merely because Gebhardt is subjectively dissatisfied.with the trial court's denial of the instruction does not demonstrate that counsel's performance was objectively deficient. His claim fails.
Gebhardt next argues that defense counsel was " norganized,"
u often " ad no input,"
h at
one point lost his train of thought, had to " aw[]
p around"for documents during trial, and
erroneously informed him before trial that he faced only a maximum of five years in prison.
SAG at 3 4. But Gebhardt's contention that defense counsel often " ad no input"lacks - h
sufficient specificity to address. And losing one's train of thought on a single occasion does not constitute objectively deficient performance. Gebhardt's assertions that defense counsel was unorganized"and erroneously advised him on sentencing consequences refer to matters outside
of the record that we will not address on direct appeal. McFarland, 127 Wn. d at 335.
2
Finally, Gebhardt argues that defense counsel was ineffective when he did not call witnesses to provide medical expert testimony about his injuries. Even assuming without deciding that defense counsel's performance was deficient, Gebhardt cannot demonstrate that a medical witness would have testified in his favor and, therefore, that he was prejudiced without such testimony. His claim fails.
- -
C. Self Defense Instruction
Gebhardt contends that the trial court erred in refusing to give his requested self defense instruction because there was no evidence that the police officers unlawfully arrested him. We review a trial court's refusal to give a self defense instruction based on insufficient evidence to
support the instruction for abuse of discretion. State v. Read, 147 Wn. d 238, 243, 53 P. d 26 2 3
2002).A trial court abuses its discretion when it bases its decision on unreasonable or
untenable grounds. Rafay, 167 Wn. d at 655. And we may affirm on any ground supported by
2
the record. State v. Costich, 152 Wn. d 463, 477, 98 P. d 795 (2004).
2 3
Our Supreme Court has held that "[ ne cannot deny that he struck someone and then o]
claim that he struck them in self -
defense."State v. Aleshire, 89 Wn. d 67, 71, 568 P. d 799 2 2
1977) defendant denied participating in bar fight leading to assault charges).Divisions One (
and Three of this court have also held that defendants are not entitled to self defense instructions if they deny committing the act underlying the charged crime. State v. Barragan, 102 Wn. App.
754, 762, 9 P. d 942 (2000);
3 State v. Gogolin, 45 Wn. App. 640, 643 44,727 P. d 683 (1986)
- 2
defendant denied underlying assault);
accord State v. Pottorf, 138 Wn.App. 343, 348, 156 P. d
3
955 (2007) A defendant asserting self -
(" defense is ordinarily required to admit an assault
occurred. ").
Here, Gebhardt presented no evidence in his case that he struck or attempted to strike any of the officers. To the contrary, his defense consisted of a complete denial of such actions. Accordingly, his general denial defense precluded a self defense instruction, and the trial court
did not abuse its discretion in refusing to give one. Accord Aleshire, 89 Wn. d at 71.
2
I
25
- -
D. JurQuestionnaire Gebhardt argues that.the trial court abused its discretion when it denied his request to use a jury questionnaire during voir dire. But trial courts have wide discretion to manage the voir dire process, and we will grant relief only if the defendant can show that the trial court abused its
discretion and the defendant's rights were substantially prejudiced. State v. Davis, 141 Wn. d
2
798, 825 26, 10 P. d 977 ( - 3 2000).
Here,the State observed that there was nothing unique about Gebhardt's case, there was no publicity surrounding his case, and the questionnaire was not specific to his case's facts. And the trial court observed that jury questionnaires "dramatically"slow the jury selection process and that it generally allows them only in cases where the potential jurors might be hesitant to disclose private, case -relevant information, such as in sex offense cases. RP at 11 -12. Given these facts, the trial court's denial of a jury questionnaire was reasonable, and it did not abuse its discretion. Gebhardt's claim fails.
E. Sufficiency of the Evidence Gebhardt, making arguments based on witness credibility, contends that sufficient evidence does not support his second degree assault conviction. Because we addressed and rejected these arguments above, we do not address them again. F. Admission of Audio Recording Transcript
Gebhardt argues that the trial court abused its discretion in admitting the State's transcript of the audio recordings as an illustrative reading aid. We review a trial court's decision to admit
evidence for illustrative purposes for abuse of discretion. State v. Allen, 72 Wn. d 42, 44 45, 2 -
431 P. d 593 (1967).Here, the trial court reasoned that the State laid a proper foundation for the
26
- -
transcripts and their accuracy through Kelly's testimony and informed Gebhardt that he would
have " reat leeway"to establish inaccuracies during cross -examination. RP at 304 05,311 12.
g - -
The trial court also instructed the jury that the transcripts were "ntended strictly as a listening
i
aid "; and it collected the transcripts from the jury after the tape was played in open court. RP at
313 14. Accordingly, the trial court did not abuse its discretion, and Gebhardt's claim fails.
-
G. Appearance of Fairness Gebhardt contends for the first time on appeal that the trial court demonstrated bias
towards the State by ( )
1 sustaining the State's objections without requiring a supplied basis or
supplying the basis itself, 2)
( allowing Martin to "overhear private conversation between counsel
and the court outside the presence of the jury," (3)
and allowing the State to have Koskovich retrieve evidence from the property room during trial. SAG at 7. We construe these claims of
bias as arguments that the trial court violated the appearance of fairness doctrine.
An appearance of fairness claim is not " onstitutional"in nature under RAP 2. ( c a)( 3)
5
and, thus, may not be raised for the first time on appeal. See State v. Morgensen, 148 Wn. App.
81, 90 91, 197 P. d 715 (2008); also City ofBellevue v. King County Boundary Review Bd., - 3 see
90 Wn. d 856, 863, 586' P. d 470 (1978) Our appearance of fairness doctrine,though related to 2 2 ("
concerns dealing with due process considerations, is not constitutionally based. "). Accordingly,
Gebhardt failed to preserve these issues for appeal when he failed to object below, and his claim fails.
IX. CUMULATIVE ERROR
Gebhardt finally contends in his opening brief that he is entitled to a new trial under the cumulative error doctrine. But the doctrine does not apply where the alleged errors are few and
27
- -
have little or no effect on the trial's outcome. State v. Weber, 159 Wn. d 252, 279, 149 P. d 646 2 3
2006).Gebhardt identifies one improperbut curable—
— argument by the prosecutor, and we
have already concluded that the few errors we assume for the sake of argument had no effect on the trial's outcome. Thus, Gebhardt's claim fails.
X. SANCTIONS
Appellant's counsel is highly experienced. She knows the Rules of Appellate Procedure RAPs)and knows how to comply with them. But,in numerous instances, Gebhardt's counsel
did not comply with the RAPS in preparing Gebhardt's brief. She did not cite to the record as is required, which forced us to attempt to ascertain the precise content and basis of the alleged errors. She also grossly mischaracterized the record on several occasions and failed to provide
sufficient argument or citations to authority for numerous issues. These violations of the rules cannot go unnoticed or unpunished. We may impose sanctions under RAP 18.9 sua sponte. See
Fidelity Mortg. Corp. v. Seattle Times Corp.,131 Wn. App. 462, 473, 128 P. d 621 (2005);
3 RAP
a) (court may "on its own initiative"impose sanctions for failure to comply with 18. ( 9 appellate
the RAPS).Accordingly, we impose a sanction in the amount of 250 to be paid within 60 days $
of the mandate's issuance in this case.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the
28
- -
Washington Appellate Reports, but will be filed for public record in accordance with RCW
040, 2.6.it is so ordered. 0
T.
J. .
P
J
Bridgewate ,
We concur:
j. n Hunt, J.
/,,,-
Van Deren, J.