State Of Washington, V Daylan Erin Berg & Jeffrey S. Reed

1:1LED COURT OF t, PPEALS 01VIS101 iI

2013 OCT -8 Aid 9: 19

STATE O S" TON

FPO

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 41167 9 II - -

Respondent,

V. Consolidated with

DAYLAN ERIN BERG, and JEFFREY S. REED,

I1 STATE OF WASHINGTON, No. 41173 3 II - -

Respondent,

V.

JEFFREY S. REED, PART PUBLISHED' PlNION O

t.

WORSWICK, C. . — J After a jury trial,Daylan Berg and Jeffrey Reed were each convicted

of five counts: attempted first degree murder, first degree burglary, first degree kidnapping, first

degree robbery, and intimidating a witness.' In special verdicts, the jury found that Berg and Reed committed each of the five counts while armed with a firearm and that the attempted

murder was of a police officer performing his official duties. Berg and Reed appeal their

convictions, arguing that (1) exclusion of an observer from the courtroom violated their the

1 Reed was also convicted of first degree unlawful possession of a firearm. ,

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public trial rights and was erroneous as a matter of courtroom operations and ( ) 2 insufficient

evidence supports their kidnapping convictions. We hold that because no courtroom closure occurred, the trial court did not violate Berg and Reed's public trial rights and further hold that any courtroom operations error was harmless. In addition, because we follow our decision in

State v. Korum, 120 Wn. App. 686, 86 P. d 166 (2004), d in part and rev'd in part on other 3 aff'

grounds, 157 Wn. d 614, 41 P. d 13 (2006), vacate the kidnapping convictions for 2 1 3 we

insufficient evidence.

In the unpublished portion of this opinion, we address Berg's and Reed's other

contentions: 1) ( Berg and Reed argue that the State committed prosecutorial misconduct by

making improper remarks during closing argument and their counsel were ineffective for failing

to object to these remarks, 2) ( Berg argues that insufficient evidence supports his conviction for

witness intimidation, 3) ( Berg and Reed argue that the special verdict instructions violated their

right to a unanimous verdict, 4) ( Reed argues that a witness's opinion on Reed's state of mind

violated his right to a jury trial, and (5) Reed argues that cumulative error warrants reversal of his

convictions. In a pro se Statement of Additional Grounds, Reed further argues (1)evidentiary

error, 2) ( additional improper remarks in closing argument, 3) ( instructional error, 4) ( additional

ineffective assistance of counsel, and (5)erroneous denial of motions for mistrial. Aside from the insufficiency of the kidnapping evidence, we reject Berg's and Reed's arguments. We affirm Berg's and Reed's convictions, except that we remand to the trial court to vacate Berg's and Reed's first degree kidnapping convictions and to resentence them accordingly.

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FACTS

A. Substantive Facts

Albert Watts was an authorized medical marijuana user who lived in a rented house in Vancouver, Washington: Berg and Reed learned that Watts grew marijuana in a workshop

located in a walled off portion of his garage. -

One evening, Watts was alone in the workshop tending to the marijuana plants when Berg and Reed kicked in the door. Holding a handgun, Reed ordered Watts to the ground. Berg took the gun and pinned Watts to the floor,threatening to shoot him if he moved. Reed then went inside the house and took Watts's cell phone and wallet. Reed then loaded the marijuana plants into a white car.

When Reed finished loading the car, he returned to the workshop. Berg stopped pinning Watts to the floor,and Reed asked whether Watts would call the police. Watts answered that he

would tell the police " othing." Verbatim Report of Proceedings (VRP)at 1000. n 24

After Reed told Watts to remain on the floor for fifteen minutes, Berg and Reed left. Three or four minutes after they left,Watts stood up and walked inside his house. Later, during Berg and Reed's flight from the scene, Berg shot a police officer, Sergeant Jay Alie. B. Procedural Facts

The State charged Berg and Reed with five counts each: attempted first degree murder, first degree burglary, first degree kidnapping, first degree robbery, and intimidating a witness. The State sought firearm enhancements for all five counts and also charged an aggravating factor on the attempted first degree murder count, based on Sergeant Alie's status as a police officer. In addition, the State charged Reed with first degree unlawful possession of a firearm.

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During the trial,the trial court allowed undercover officers from the Vancouver Police Department to be present in the courtroom to augment the security provided by uniformed officers from the Clark County Sheriff's office. Joel Wyman, a friend of Berg and Reed's, observed the beginning of trial from the courtroom gallery. During a recess on the third day of trial, a Sheriff's custody officer asked Wyman to leave the courtroom, and a Vancouver police detective questioned him on suspicion of intimidating a witness during a trial held the previous

week. After the questioning ended, a courthouse security officer informed Wyman that " e was h

being trespassed from the trial,but could return to the Courthouse if he had other business to

attend to." s Papers (CP)Reed)at 471. Clerk' (

The trial court had not authorized any officers to exclude Wyman from the courtroom and did not learn of Wyman's exclusion until Berg objected to it. The trial court denied the objection and Berg's subsequent motion for a mistrial, explaining that it had excluded no one from the courtroom and that Wyman was free to return. Further, the trial court entered an order stating that no one should be excluded from the courtroom absent good cause. However, Wyman did not return to observe the trial because he feared arrest.

Berg and Reed appeal their convictions.

ANALYSIS

I.EXCLUSION OF A COURTROOM OBSERVER

Berg and Reed argue that their convictions should be reversed because the exclusion of a courtroom observer, their friend Wyman, was a courtroom closure that violated their constitutional rights to a public trial. We disagree that Wyman's exclusion constituted a courtroom closure. Berg further argues that reversal is warranted because the exclusion of

M

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Wyman amounted to a usurpation of the trial court's authority over courtroom operations. We disagree that reversal is warranted because any error in courtroom operations was harmless. A. Public Trial Rights

Berg and Reed argue that their constitutional rights to a public trial were violated when police officers excluded Wyman from the courtroom during their trial. We disagree because the exclusion of a single person is not a courtroom closure.

Both the United States Constitution and the Washington Constitution protect ( a 1)

criminal defendant's right to a public trial,U. .CONST. amend S VI and WASH. CONST. art. I, § 22;

and (2) public's right to the open administration of justice,U. .CONST. amend I and WASH. the S

10. CONST. art. I, § State v. Wise, 176 Wn. d 1, 9,288 P. d 1113 (2012).A trial court violates 2 3

these rights if it closes the courtroom during a public proceeding, unless the trial court had

previously determined that closure is warranted under the five part test set forth in State v. Bone - -

Club, 128 Wn. d 254, 906 P. d 325 (1995).Wise, 176 Wn. d at 12. 2 2 2

2 The five criteria are: 1. The proponent of closure sealing must make some showing [of a compelling or

interest], and where that need is based on a right other than an accused's right to a fair trial,the proponent must show a " erious and imminent threat"to that right. s 2. Anyone present when the closure motion is made must be given an opportunity to object to the closure. 3. The proposed method for curtailing open access must be' the least restrictive means available for protecting the threatened interests. 4. The court must weigh the competing interests of the proponent of closure and the public. 5. The order must be no broader in its application or duration than necessary to serve its purpose.

Bone Club, 128 Wn. d at 258 59 ( uoting Allied Daily Newspapers of Wash. v. Eikenberry, 121 - 2 - q Wn. d 205, 210 11,848 P. d 1258 (1993)) ( 2 - 2 alteration in original).

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Whether a courtroom closure violates a defendant's right to a public trial or the public's right to the open administration ofjustice is a question of law reviewed de novo. State v.

Momah, 167 Wn. d 140, 147, 217 P. d 321 (2009).Whether a courtroom closure in fact 2 3

occurred also is a question reviewed de novo. See Wise, 176 Wn. d at 12;State v. Lormor, 172 2

Wn. d 85, 92 93,257 P. d 624 ( 2 - 3 2011).

Our Supreme Court recently decided that the exclusion of only one person from an

otherwise open courtroom does not constitute a closure. Lormor, 172 Wn. d at 93. Instead, the 2

closure of a trial or similar proceeding " occurs when the courtroom is completely and

purposefully closed to spectators so that no one may enter and no one may leave."Lormor, 172 Wn. d at 93. 2

Under Lormor, Wyman's exclusion was not a courtroom closure. See 172 Wn. d at 92- 2

93. Although police detained Wyman outside the courtroom while questioning him on suspicion that he had committed a crime, Wyman was the only person excluded and the courtroom remained open. And despite what the security officer told Wyman, the trial court stated that Wyman was allowed to return to observe the trial. Because no courtroom closure occurred,the

3 In Presley v. Georgia, 558 U. . 209, 209 10, 130 S. Ct. 721, 175 L.Ed. 2d 675 (2010), S - the United States Supreme Court held that a closure occurred when the trial court excluded a single observer from the courtroombut he was the only observer present. Interpreting Presley and — Waller v. Georgia, 467 U. .39, 47, 104 S. Ct. 2210, 81 L.Ed. 2d 31 (1984), Supreme Court S our decided that, in the context of a trial, a closure occurs when the trial takes place in a courtroom that is " losed to all potential spectators."Lormor, 172 Wn. d at 91 92. c 2 -

Cel

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trial court did not violate Berg and Reed's right to a public trial or the public's right to the open

administration ofjustice. Wise, 176 Wn. d at 12. Berg and Reed's public trial argument fails. 2 B. Courtroom Operations

Relying on Lormor, 172 Wn. d at 93, Berg also argues that, even if no courtroom closure 2

occurred, reversal is warranted because the officer who excluded Wyman also usurped the trial

court's inherent power to preserve and enforce order in the courtroom. We disagree that reversal is warranted.

1. Improper Exclusion

When public trial rights are not implicated, we analyze the exclusion of a person from a

courtroom as a matter of courtroom operations. Lormor, 172 Wn. d at 93. Trial courts possess 2

broad inherent power and statutory authority over courtroom operations. Lormor, 172 Wn. d at 2

93 94. -

4 To support their argument that their Sixth Amendment right to a public trial was violated by the exclusion of Wyman alone, Berg and Reed cite numerous cases from other states and the federal courts of appeals. But we are bound to follow decisions of the Washington Supreme Court and, where federal law is concerned, the United States Supreme Court. 1000 Virginia Ltd. P'hip v. s Vertecs Corp., 158 Wn. d 566, 590, 146 P. d 423 (2006); 2 3 Sims v. Georgia, 385 U. . 538, 544, S 87 S. Ct. 639, 17 L.Ed. 2d 593 (1967).In contrast, a vast majority"of the state supreme courts " that have considered the issue have decided they are not bound by decisions of the inferior federal courts on questions of federal law or constitutional interpretation. Hall v. Pa. Bd. of Probation & Parole, 851 A. d 859, 863 64 ( a.2004)collecting cases, but none from 2 - P ( Washington); Strange v. Spokane County, 171 Wn. App. 585, 593, 287 P. d 710 (2012), see 3 review denied, 177 Wn. d 1016 (2013)decisions of the federal courts of appeals are persuasive 2 ( authority). 5 Our Supreme Court decided Lormor after Berg and Reed filed their opening briefs but before the State filed its responsive brief. Thus, Berg makes this argument for the first time in reply, but after the State argued Lormor. Ordinarily, we do not consider arguments raised for the first time in a reply brief. RAP 10. ( c); Canyon Conservancy v. Bosley, 118 Wn. d 801, 3 Cowiche 2 809, 828 P. d 549 ( 992).But the ends of justice require us to do so here. RAP 1. ( 2 1 c). 2

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We review matters of courtroom operations for an abuse of discretion. Lormor, 172

Wn. d at 94. A trial court abuses its discretion when its decision is manifestly unreasonable, 2

based on untenable grounds, or made for untenable reasons. State v. Rohrich, 149 Wn. d 647, 2

654, 71 P. d 638 (2003).When a decision is within a trial court's discretion but the trial court 3

fails to exercise discretion at all,the trial court abuses its discretion. State v. Flieger, 91 Wn.

App. 236, 242, 955 P. d 872 (1998). 2

Here,the trial court did not exclude Wyman from the courtroom. To the contrary, upon learning that Wyman had been excluded, the trial court entered an "Order on Public Access to

the Courtroom"stating that Berg and Reed had " n undisputed right to have the public present a

during trial"and that no courtroom observer should be excluded from the courtroom, absent

good cause or the court's permission. CP at 186 87 ( eed). = R

However, police officers removed Wyman from the courtroom, detained him elsewhere,

and barred his return to the courtroom during the trialall without the trial court's knowledge or —

authority. During a recess, a custody officer asked Wyman to step out of the courtroom. In the hallway, Detective Darren McShea of the Vancouver police asked to question Wyman about his

conduct as a courtroom observer during another trial held the previous week. " ith some W

Wyman agreed prompting," to discuss the matter in a nearby conference room. CP at 471

Reed).During the questioning, Wyman twice asked if he was free to leave," Detective " but

McShea said Wyman " as being detained for investigation."CP at.471 (Reed).Detective w

McShea then told Wyman that " is conduct the previous week had not gone unnoticed and that h

continued behavior of that nature could subject him to arrest for intimidating witnesses." CP at 471 (Reed).Wyman denied knowing what Detective McShea meant. CP at 471 (Reed).After

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the questioning, a courthouse security officer informed Wyman that " e was being trespassed h

from [Berg and Reed's] trial,but could return to the Courthouse if he had other business to

attend to." at 471 (Reed).Despite the trial court's order affirming the public's right to CP

observe the trial, Wyman did not return for fear of arrest.

The trial court rightly called these events "troubling." VRP at 2480. By purporting to 35

ban Wyman from returning to the courtroom to observe the trial,the Vancouver police officers and Clark County Sheriff's deputies usurped the trial court's authority over courtroom

operations. In effect, they nullified the exercise of the trial court's discretion. That is improper and, as a matter of courtroom operations, erroneous.

2. Harmless Error

Berg contends that reversal of his convictions is required for an error of courtroom operations. We disagree because the error was harmless.

We review matters of courtroom operations in the same manner that we review a trial

court's evidentiary rulings. Lormor, 172 Wn. d at 94 95. Thus, an error of courtroom 2 -

operations is harmless unless it is prejudicial. See State v. Cunningham, 93 Wn. d 823, 831, 613 2

P. d 1139 (1980).An error is prejudicial only if the trial's outcome would have been materially 2

affected had the error not occurred. Cunningham, 93 Wn. d at 831. 2

6 We do not doubt that police may lawfully detain individuals to investigate crimes. But we are aware of no authority allowing police to ban an individual from attending a particular trial after a lawful detention has ended.

E

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Here, there was no prejudice. Wyman's exclusion occurred during a recess, outside of the jury's presence. Nothing in the record shows that Wyman's attendance or absence had any effect on the trial's outcome.

Arguing to the contrary, Berg contends that the trial court's order on public access came

too late because "[ he t] damage was already done ": six witnesses testified in Wyman's absence

before the order was entered. Reply Br. of Appellant at 11 (Berg).But Berg does not show that the trial's outcome was materially affected by Wyman's exclusion. Therefore, the error of

courtroom operations was harmless, and reversal is unwarranted. Cunningham, 93 Wn. d at 2

831.

II. SUFFICIENCY OF THE EVIDENCE

Berg and Reed next argue that insufficient evidence supports their convictions for one count each of first degree kidnapping. We agree that the evidence is insufficient to support their first degree kidnapping convictions.

Due process requires that,to obtain a criminal conviction, the State must prove every

element of the charged offense beyond a reasonable doubt. State v. Green, 94 Wn. d 216, 220- 2

21, 616 P. d 628 (1980); In re Winship, 397 U. .358, 364, 90 S. Ct. 1068, 25 L.Ed. 2d 368 2 see S

1970).When a defendant challenges the sufficiency of the evidence supporting his conviction, we examine the record to decide whether any rational trier of fact could have found that the State

met its burden to obtain the conviction. Green, 94 Wn. d at 221 22 ( iting Jackson v. Virginia, 2 - c

443 U. .307, 99 S. Ct. 2781, 61 L.Ed. 2d 560 (1979)). consider the evidence and all S We

reasonable inferences from it in the light most favorable to the State. State v. McPhee, 156 Wn.

App. 44, 62, 230 P. d 284, review denied, 169 Wn. d 1028 (2010). 3 2

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Relying on the incidental restraint doctrine applied in State v. Korum, 120 Wn. App. 686,

86 P. d 166 (2004), 3 affd in part and rev'd in part on other grounds, 157 Wn. d 614, 141 P. d 2 3

13 (2006), Berg and Reed argue that the evidence is insufficient to convict them of first degree

kidnapping. We note that Division One of this court has declined to follow Korum, calling it

wrongly decided."State v. Phuong, 174 Wn. App. 494, 508, 299 P. d 37 (2013), 3 petition for

review filed,No. 88889 2 Wash. May 31, 2013); - ( State v. Grant, 172 Wn. App. 496, 498, 301

P. d 459 (2012), 3 review denied, 177 Wn. d 1021 (2013).Similarly,Division Three has limited 2

Korum to cases where the prosecutor has acted vindictively or overcharged the defendants. State

v. Butler, 165 Wn. App. 820, 830 31,269 P. d 315 (2012).We adhere to Korum and we vacate - 3

Berg's and Reed's convictions for first degree kidnapping. Respectfully, we disagree with Divisions One and Three. A. Korum and the Incidental Restraint Doctrine

The parties dispute whether the incidental restraint doctrine we applied in Korum, 120

Wn. App. 686, is required by our Supreme Court's decision in Green, 94 Wn. d 216. Likewise, 2

the split among the Courts of Appeals over the vitality of the incidental restraint doctrine is,in reality, a dispute about the meaning of Green. Consistent with our decision in Korum,we now hold that Green requires application of the incidental restraint doctrine in this challenge to the sufficiency of the evidence of first degree kidnapping.

7 We have previously explained that "[a] lthough Green borrowed the `incidental restraint' concept from an earlier merger case, it incorporated this concept into a new standard for determining sufficiency of evidence on appeal."In re Pers. Restraint ofBybee, 142 Wn. App. 260, 266 67,175 P. d 589 (2007)footnote omitted).According to Division One, Green did no - 3 ( " such thing." Grant, 172 Wn.App. at 505.

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1. The Incidental Restraint Doctrine Is Required by Green

A person commits first degree kidnapping " f he or she intentionally abducts another i

person with intent ... [ t] facilitate commission of any felony or flight thereafter."RCW o

b). 020( 9A. 0. critical element of abduction can take three forms, all of which 1)( 4 The

necessarily involve restraint: 1) ( restraint by secreting the victim in a place where he or she is not

likely to be found, 2) ( restraint by threats of deadly force, or ( ) 3 restraint by the use of deadly

force. Green, 94 Wn. d at 225; see RCW 9A. 0.A restraint is defined as a restriction on 2 010( 1 4 ).

a person's movements that is without the person's consent, is without legal authority, and

interferes substantially with the person's liberty. RCW 9A. 0. 010( 6 4 ). In Green, our Supreme Court held that when the State presents only evidence of conduct

that was merely incidental to the commission of another crime,no rational trier of fact could find that the evidence proves beyond a reasonable doubt that the conduct was a restraint. Green, 94

Wn. d at 227, 229 30. That is the incidental restraint doctrine. 2 -

Given the incidental restraint doctrine, the killing of a murder victim " oes not, in and of d

itself, establish kidnapping"because the act of killing does not prove a restraint. Green, 94

8 The legislature added gender -neutral language to RCW 9A. 0.in 2011. LAWS of 2011, 020 4 ch. 336, §364. 9 In 2011,the legislature further amended RCW 9A. 0. define terms related to human 010 to 4 trafficking. LAWS ' of 2011, ch. 111, § 2. The amendments do not affect our analysis.

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Wn. d at 228. Thus the Green court held that a murderer did not also commit a kidnapping by 2

killing his victim. Green, 94 Wn. d at 229. 2 The outcome in Green depended on a narrow interpretation of the word " estraint"in the r

kidnapping statute. Green explained,

In the broadest sense the infliction of a fatal wound is the ultimate form of restraint"because it obviously " s]person's movement ... in a manner restrict[ a

which interferes substantially with [the person's] liberty."RCW 9A. 0.If 010( 1 4 ). such logic is applied to the law of kidnapping, however, every intentional killing would also be a kidnapping because the killing itself would supply the requisite restraint"i. the killing being the ultimate form of restraint "). ( e., "

Green, 94 Wn. d at 229 (alterations in original). 2

Applying this narrow interpretation of restraint," Green court analyzed the " the

sufficiency of the evidence of kidnapping by examining each of the three recognized forms of

abduction: 1) ( restraint by secreting the victim, 2) ( restraint by threats of deadly force, and (3) 1 restraint by use of deadly force other than the killing itself.l Green, 94 Wn. d at 225 28. The 2 -

evidence was insufficient to prove any of the three forms of abduction. Green, 94 Wn. d at 228. 2

In holding that the evidence failed to show restraint by secretion, the Green court decided that proof was lacking of both restraint and secretion. The evidence showed no secretion

because the murderer " ould hardly have chosen a more public place to accost his victim or c

10 We disagree with the State's contention that the incidental restraint doctrine effectively adds a nonstatutory element to the definition of kidnapping. Instead, the incidental restraint doctrine derives from a narrow interpretation of the statutory element of restraint. 11 The Green court framed the State's argument as inviting the court to recognize a fourth form of abduction: restraint by use of deadly force including the killing itself. Green refused this invitation. 94 Wn. d at 228 29. 2 -

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commit the homicide some 2 to 3 minutes later."Green, 94 Wn. d at 226. Further, the evidence 2

showed no restraint because

although [the murderer] lifted and moved the victim [approximately 20 to 50 feet], is clear these events were actually an integral part of and not independent it of the underlying homicide. While movement of the victim occurred, the mere incidental restraint and movement of a victim which might occur during the course of a homicide are not, standing alone, indicia of a true kidnapping.

Green, 94 Wn. d at 226 27. 2 -

The State argues that the foregoing passage was dictum because the Green court " ad h

already found there was no evidence of the element of restraint."Suppl. Br. of Resp't at 4. We disagree. A statement in an opinion is dictum if it is unrelated to the issues before the court and

unnecessary to decide the case. State v. Potter, 68 Wn. App. 134, 149 n. ,842 P. d 481 (1992). 7 2

But in this passage the Green court explained why there was no evidence of restraint despite the murderer's forcible movement of the victim. Thus this passage was necessary to Green's decision, and it is not dictum.

Next,with a terse analysis, the Green court decided that the evidence was also insufficient to prove restraint by threats of deadly force or restraint by use of deadly force other than the killing itself. First, there was no restraint by threats of deadly force because the record

contained no evidence of any threats. Green, 94 Wn. d at 228. Likewise, there was no evidence 2

of any use of deadly force other than the killing itself. Green, 94 Wn. d at 228. Therefore 2

Green held the evidence insufficient to prove any of the three forms of abduction. Green, 94

Wn. d at 230. 2

In Korum,we applied the holdings of Green and vacated a defendant's kidnapping convictions for insufficient evidence where the only evidence of restraint was conduct incidental

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to a series of home invasion robberies. Korum, 120 Wn. App. at 707, 719. Although our Supreme Court reversed on other grounds, it declined to reach the incidental restraint issue

because the State inadequately briefed it. Korum, 157 Wn. d at 625, 652 53. We now hold that 2 -

Korum's application of the incidental restraint doctrine was required by Green.

2. Reasons for Rejecting the Incidental Restraint Doctrine

Rejecting Korum's application of the incidental restraint doctrine, Divisions One and

Three have reasoned that ( ) 1 Green involved a charge of aggravated first degree murder, not

kidnapping; 2) s entire discussion of incidental restraint was dicta; and ( ) incidental ( Green' 3 the

restraint doctrine is inappropriate absent evidence of prosecutorial vindictiveness and overcharging. We address each reason in turn.

First,the charge in Green was aggravated first degree murder; the murder was aggravated

if the killing occurred in the course of or in the furtherance of a kidnapping. Green, 94 Wn. d at 2

219, 229. Emphasizing the importance of the aggravated first degree murder charge, Division

One has confined Green's holding to the " rime- c within a- - crime"context. Phuong, 174 Wn.

App. at 520. But this confinement contradicts Green's statement of the issue it decided: whether

the State had proven the elements of kidnapping [as defined in]RCW 9A. 0.94 Wn. d at " 020." 2 4

219; see also id. at 224 25. Nothing in Green suggests that the elements of kidnapping vary -

according to whether it is the charged offense or a crime within a crime.

Second, Division One has concluded that Green's entire discussion of the incidental

restraint doctrine was dicta addressing mergera double jeopardy issue not the due process — —

requirement that the evidence must be sufficient to prove each element beyond a reasonable

doubt. Phuong, 174 Wn. App. at 517, 521 n.1. In support of this conclusion, Division One 2

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examined the majority and dissenting opinions in three cases: Green, 94 Wn. d 216, an earlier 2

decision referred to as "Green I" ( v. Green, 91 Wn. d 431, 588 P. d 1370 (1979)), State 2 2 and

State v. Johnson, 92 Wn. d 671, 600 P. d 1249 (1979).Phuong, 174 Wn. App. at 514 21. 2 2 -

We disagree with Division One because Green's discussion was clearly not dicta;rather, it is necessary to Green's result. But for Green's holding that evidence of conduct incidental to a murder is not sufficient to prove the restraint element of kidnapping, Green would have decided that the murderer committed a kidnapping when he restrained his victim by killing her.

Nonetheless, we admit that Division One's conclusion has doctrinal appeal, in that it preserves distinctions between sufficiency of the evidence and merger. Yet our Supreme Court's decision on an issue of state law remains binding on us until our Supreme Court overrules it.

State v. Gore, 101 Wn. d 481, 487, 681 P. d 227 (1984).As Judge Becker noted in dissent from 2 2

Division One's rejection of the incidental restraint doctrine, our]Supreme Court's most recent "[

reference to the [incidental restraint] issue expressly affirms the continuing vitality of Green." 12 Grant, 172 Wn. App. at 511.

Third, Division Three has suggested that the incidental restraint doctrine applies only where, as in Korum, the court believes that prosecutorial vindictiveness has led to overcharging. Butler, 165 Wn. App. at 831. Korum applied the incidental restraint doctrine set forth in Green, but Green says nothing about prosecutorial vindictiveness or overcharging. Butler does not address Green's discussion of incidental restraint.

12 In State v. Brett, 126 Wn. d 136, 166, 892 P. d 29 (1995), Supreme Court cited Green and 2 2 our wrote: This court has held and the State concedes that the mere incidental restraint and " movement of the victim during the course of another crime which has no independent purpose or injury is insufficient to establish a kidnapping."

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We respectfully disagree with the courts that have rejected Korum. Accordingly, we follow Korum and apply the incidental restraint doctrine here. B. The Evidence Is Insufficient To Prove Kidnapping

As stated above, abduction is an element of first degree kidnapping. RCW 9A. 0. 020( 1). 4

Abduction can take three forms, all of which necessarily involve restraint: 1) ( restraint by

secreting the victim in a place where he or she is not likely to be found, 2) ( restraint by threats of

deadly force, or ( ) 3 restraint by the use of deadly force. Green, 94 Wn. d at 225;see RCW 2

010( 9A. 0.When the State presents only evidence of conduct that was merely incidental to 1 4 ).

the commission of another crime, no rational trier of fact could find that the evidence proves

beyond a reasonable doubt that the conduct was a restraint. Green, 94 Wn. d at 229 30. 2 -

Whether a restraint was incidental to the commission of another crime is a fact -specific

determination. State v. Elmore, 154 Wn. App. 885, 901, 228 P. d 760, review denied, 169 3

Wn. d 1018 (2010).As a matter of law,a restraint was incidental to the commission of a home 2

invasion robbery when ( ) 1 facilitating the robbery was the restraint's sole purpose, 2) ( the

restraint was inherent in the robbery, 3) robbery victims were not transported from their ( the

home to a place where they were not likely to be found, 4) restraint did not last substantially ( the

longer than necessary to complete the robbery, and (5) restraint did not create a significant the

independent danger. Korum, 120 Wn. App. at 707; see State v: Lindsay, 171 Wn. App. 808, 843,

288 P. d 641 (2012)merger case citing Korum), 3 ( review granted on other grounds, 177 Wn. d 2

1023 (2013).In all five of these respects, this case is indistinguishable from Korum.

Arguing to the contrary,the State contends that this case is distinguishable from Korum and Green in three ways. First,the State asserts that Berg and Reed did not restrain Watts in his

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workshop to facilitate the robbery, but instead to prevent others from helping Watts during the robbery. But nothing in the record supports this assertion; moreover, preventing a robbery victim from obtaining help would facilitate the robbery.

Second, the State contends that Berg and Reed restrained Watts for substantially longer than necessary because as they fled they told Watts to remain on the floor for fifteen minutes. But this is no different from Korum, where the robbers fled the scene with some of their victims' hands tied and those victims loosened their restraints after about five minutes. 120 Wn. App. at

707 & n.9. Similarly, Watts testified that he stood up and went inside his house three or four 1

minutes after Berg and Reed left.

Third,the State argues that Berg and Reed secreted Watts inside his workshop where he was unlikely to be found,but there was no secretion in Green because the murder occurred in a

semipublic place. But the State fails to explain or support its assertion that "[ s] Watts ecreting

was unnecessary in order to commit robbery."Br. of Resp't at 40. Therefore we do not consider

it. See Cowiche Canyon Conservancy v. Bosley, 118 Wn. d 801, 809, 828 P. d 549 (1992). 2 2

Citing State v. Allen, 94 Wn. d 860, 621 P. d 143 (1980), State further contends that 2 2 the

Berg and Reed kidnapped Watts by restraining him by threat or use of deadly force while they Red the scene of their robbery. But Allen is distinguishable. In Allen,two robbers restrained a convenience store clerk at gunpoint inside their car while one of them brought the cash register

drawer from the store to the car. 94 Wn. d at 861. The robbers then drove two blocks away 2

before forcing the clerk out of the car. Allen, 94 Wn. d at 861. Our Supreme Court held that the 2

kidnapping and robbery did not merge because restraining clerk inside the fleeing car was not

incidental to the robbery. Allen, 94 Wn. d at 864. Here, the merger doctrine is not at issue. 2

IN

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Further, like the robbers in Korum, 120 Wn. App. at 707, Berg and Reed fled without their robbery victim. The State's contention is unpersuasive.

Because the State's only evidence of kidnapping was conduct that was merely incidental to the robbery, the evidence is not sufficient under Green and Korum to support Berg's and Reed's convictions for first degree kidnapping. Therefore we vacate these convictions.

In the unpublished portion of this opinion, we consider Berg's and Reed's remaining arguments. We reverse Berg's and Reed's first degree kidnapping convictions but affirm all other convictions, and we remand to the trial court to vacate Berg's and Reed's first degree kidnapping convictions and to resentence them-accordingly.

A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for

public record in accordance with RCW 2.6.it is so ordered. 040, 0

ADDITIONAL FACTS

A. Substantive Facts

During the robbery, Watts's neighbor called 911 to report suspicious men removing items from Watts's home. She also described a white car she believed to be involved..

Minutes later, Sergeant Alie observed a white car resembling the neighbor's description, and he pulled it over. As Sergeant Alie approached, he observed Berg and Reed in the front and marijuana plants in the back seat. Sergeant Alie noticed that Reed, the driver, was staring straight ahead with his hands on the steering wheel. Both the driver's and passenger's windows were rolled down and the engine was running.

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Sergeant Alie went to the driver's window and told Reed to turn off the engine. Reed paused and then ducked his upper body toward the center console of the interior, so that his head was below the steering wheel. Sergeant Alie reached inside to grab Reed, but Berg reached over Reed's body and shot Sergeant Alie in the chest from about one foot away. Sergeant Alie fell to the ground, but his protective vest stopped the bullet from penetrating his body. Berg and Reed drove away.

Reed was arrested later that night; police found Watts's cell phone in his front pocket. Berg was arrested the following day. B. Procedural Facts

Reed filed a motion in limine to prevent Sergeant Alie from giving an opinion about Reed's state of mind when he leaned his body forward,just before Berg shot Sergeant Alie. The

trial court granted the motion. But during his testimony, Sergeant Alie opined that Reed made " a

real willful,intentional movement"by leaning forward in his seat. 24 VRP at 1142. Berg and Reed immediately objected, and the trial court admonished Sergeant Alie to not express his opinion on Reed's state of mind,which was a matter for the jury to decide. The trial court also instructed the jury to disregard Sergeant Alie's opinion. Later, Reed's counsel declined to cross-examine Sergeant Alie.

Berg and Reed moved for a mistrial on the grounds that Sergeant Alie's opinion violated the trial court's order in limine and invaded the province of the jury. Although the trial court

stated that Sergeant Alie unnecessarily used words that " re linked to the elements"of first a

degree murder, the trial court denied the motion because (1)Sergeant Alie expressed an opinion that Reed moved purposefully as opposed to accidentally, but did not express an opinion about

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an element of any charge; and.2) trial court gave a curative instruction to the jury in ( the

response to Berg and Reed's immediate objection. 24 VRP at 1165.

During the State's closing argument, the prosecutor discussed the jury's role,the

reasonable doubt standard, and the evidence presented. First, the prosecutor stated that " n its i

best and most pure form,the practice of law should be a search for truth." VRP at 2240. The 29

prosecutor further stated that the jury's role was " determine and declare the truth in this case." to

29 VRP at 2242. Next, in discussing the reasonable doubt standard, the prosecutor equated it with the process used to arrive at an important decision in one's everyday affairs. Last, the prosecutor repeatedly suggested that certain elements of the offenses were undisputed.

Berg and Reed did not object during the State's closing argument, but when it ended they moved for a mistrial based solely on the references to undisputed elements. The trial court agreed that the references were improper and gave the jury a curative instruction, but it denied the motion for mistrial.

The trial court also refused three jury instructions proposed by Reed. The proposed

instructions ( ) 1 stated that rendering criminal assistance is a lesser offense included in complicity

for attempted first degree murder, 2) ( defined rendering criminal assistance, and (3)stated that

complicity is not established by the mere act of driving a car with knowledge that a passenger has committed a crime.

On special verdict forms, the jury was asked to decide facts supporting firearm enhancements for each of the five counts and an aggravating factor for the count of attempted first degree murder. The trial court's jury instructions directed the jury to unanimously answer

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either yes or no on the special verdict forms. The jury found Berg and Reed guilty on all counts and determined that the State proved the firearm enhancements and aggravating factor.

ANALYSIS

I.IMPROPER REMARKS

Berg and Reed argue that the State made improper remarks in its closing argument, and 13 thus their convictions for attempted first degree murder should be reversed because (1)the

prosecutor committed misconduct or ( ) 2 defense counsel were ineffective for failing to object.

We disagree that their convictions should be reversed. A. Prosecutorial Misconduct

Berg and Reed first argue that the prosecutor committed misconduct by making improper remarks during closing argument. We hold that the remarks were improper, but reversal is unwarranted because the impropriety did not prejudice Berg and Reed.

Prosecuting attorneys are quasi- judicial officers charged with the duty of ensuring that

defendants receive a fair trial. State v. Boehning, 127 Wn. App. 511, 518, 111 P. d 899 (2005) 3

Prosecutorial misconduct violates that duty and can constitute reversible error. Boehning, 127 Wn. App. at 518. We will reverse a conviction when the defendant meets his burden of

establishing that ( ) prosecutor acted improperly and (2) prosecutor's improper act 1 the the

prejudiced the defendant. State v. Emery, 174 Wn. d 741, 756, 278 P. d 653 (2012). 2 3

1. Impropriety

13 Berg and Reed argue that the prosecutor's improper remarks warrant reversal of only the convictions for attempted first degree murder, given the closeness of the evidence on premeditation. They do not argue that the improper remarks warrant reversal of their other convictions.

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In closing argument, the prosecutor made two improper remarks. First,it is improper for a prosecutor to state that the jury's role is to declare the truth or to search for truth. Emery, 174

Wn. d at 760. Here, the prosecutor stated that " n its best and most pure form,the practice of 2 i

law should be a search for truth," further stated that the jury's role was " o determine and and t

declare the truth in this case"by arriving at a verdict. 29 VRP at 2242. These statements are

improper because "[ he jury's t] job is not to determine the truth of what happened .... Rather, a

jury's job is to determine whether the State has proved the charged offenses beyond a reasonable

doubt."Emery, 174 Wn. d at 760. 2

Second, it is also improper for a prosecutor to equate the reasonable doubt standard with the degree of certainty used to make everyday decisions, whether on important or minor matters.

State v. Anderson, 153 Wn. App. 417, 431, 220 P. d 1273 (2009).Here, the prosecutor stated 3

that the reasonable doubt standard requires the jury to adopt

the same sort of frame of mind that we require in any important decision we make. Say, a decision to marry or a decision to make a significant investment. What we do in those scenarios, hopefully, is to consider all of the facts, the pros, the cons, the ups, the downs, consider all the facts in an objective, reasonable way, and then determine a course of action. And the point I would make to you is that we're never certain if that marriage is going to succeed or that investment is going to pay off big time, but we have an abiding belief in the decision that we made, we ... believe the decision to marry or make that investment was a correct one. And that's where we are in the question of our burden of proof, the question of reasonable doubt.

29 VRP at 2243 44. These statements are "improper because they minimized the importance of -

the reasonable doubt standard and of the jury's role in determining whether the State has met its

burden." Anderson, 153 Wn.App. at 431.

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2. Prejudice

Because the prosecutor made improper remarks, we next determine whether the remarks

prejudiced Berg and Reed. Emery, 174 Wn. d at 760. We hold they did not. 2

a. Standards ofReview

In analyzing the prejudice caused by an improper remark during closing argument, we consider the entire context of the argument, the issues in the case, the evidence, and the trial

court's jury instructions. State v. Warren, 165 Wn. d 17, 28, 195 P. d 940 (2008).We review 2 3 14 whether misconduct prejudiced the defendant under one of two different standards of review.

Emery, 174 Wn. d at 760. 2

First, if the defendant objected at trial,then we ask whether there is a substantial likelihood that the State's misconduct prejudiced the defendant by affecting the jury's verdict.

Emery, 174 Wn. d at 760. But where the defendant failed to object to the State's misconduct at 2

trial, we apply a heightened standard of review. Emery, 174 Wn. d at 760 61. Under this 2 -

heightened standard of review, the defendant is deemed to have waived any error unless the

State's misconduct was so flagrant and ill- intentioned that an instruction could not have cured

the resulting prejudice. Emery, 174 Wn. d at 760 61. 2 -

14 Citing State v. Fisher, 165 Wn. d 727, 747, 202 P. d 937 (2009), 2 3 Berg and Reed assert that the constitutional harmless error standard applies, so that prosecutorial misconduct warrants reversal " here there is a substantial likelihood the improper conduct affected the verdict."Br. w of Reed at 25. But our Supreme Court has rejected the constitutional harmless error standard where the defendant failed to object to a prosecutor's improper remarks, at least in cases that do not involve the deliberate injection of racial bias. Emery, 174 Wn. d at 757 59. 2 -

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Here, Berg and Reed did not object to the prosecutor's statements. Thus, we apply the heightened standard of review to determine whether the misconduct was so flagrant and ill-

intentioned that an instruction could not have cured the resulting prejudice."Emery, 174 Wn. d 2 at 760 61. To make that determination, we consider what would have happened if Berg and -

Reed had timely objected. Emery, 174 Wn. d at 763. 2

b. Prejudice Resulting from Improper Search for the Truth Remark

A prosecutor's improper search for truth remark can confuse the jury about its role and-

the burden of proof. Emery, 174 Wn. d at 763.. But a proper instruction can dispel that 2

confusion. Emery, 174 Wn. d at 764 (citing Warren, 165 Wn. d at 28 (defendant brought a 2 2

timely objection to a similar search for the truth remark)). Because the trial court could have

cured any prejudice resulting from the prosecutor's search for the truth remark, the remark does

not warrant reversal given the heightened standard of review. Emery, 174 Wn. d at 760 61. 2 -

c. Prejudice Resulting from Improper Reasonable Doubt Remark

The improper comparison of the reasonable doubt standard to everyday decision making trivializes the reasonable doubt standard. Anderson, 153 Wn.App. at 431. But in Anderson we held that an instruction could have cured the prejudice resulting from the improper remark. 153 Wn. App. at 432. Because an instruction could have cured the prejudice resulting from both

is Relying on State v. Johnson, 158 Wn. App. 677, 685, 243 P. 936 (2010), M review denied, 171 Wn. d 1013 (2011), 2 Berg and Reed argue that the prosecutor's statements were flagrant and ill - intentioned because they misstated the reasonable doubt standard. But Emery clarified our role: Reviewing courts should focus less on whether the prosecutor's misconduct was flagrant or ill intentioned and more on whether the resulting prejudice could have been cured."174 Wn. d at 2 762. To the extent that Johnson focuses on the flagrant and ill- intentioned quality of misconduct, rather than the effect of a hypothetical curative instruction, Emery abrogated Johnson.

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improper remarks, Berg and Reed's prosecutorial misconduct argument fails. Emery, 174 Wn. d 2

at 760 61. -

B. Ineffective Assistance ofCounsel

Berg and Reed next argue that their counsel's failure to object to the prosecutor's remarks constituted ineffective assistance of counsel. We disagree.

Both the federal and state constitutions guarantee criminal defendants effective assistance

of counsel. U. .CONST. amend. VI;WASH. CONST. art. I, § S 22. We review,ineffective

assistance of counsel claims de novo. State v. Sutherby, 165 Wn. d 870, 883, 204 P. d 916 2 3

2009).

In reviewing ineffective assistance of counsel claims, we begin with a strong presumption

of counsel's effectiveness. State v. McFarland, 127 Wn. d 322, 335, 899 P. d 1251 (1995).A 2 2

defendant claiming ineffective assistance of counsel has the burden to establish that ( ) 1 counsel's

performance was deficient and (2) performance prejudiced the defendant's case. Strickland the

v. Washington, 466 U. .668, 687, 104 S. Ct. 2052, 80 L.Ed. 2d 674 (1984).Failure to establish S

either prong is fatal to an ineffective assistance of counsel claim. Strickland, 466 U. .at 700. S

We hold that the failure of Berg's and Reed's counsel to object was not deficient.

Deficient performance occurs when counsel's performance falls below an objective

standard of reasonableness. State v. Reichenbach, 153 Wn. d 126, 130, 101 P. d 80 (2004). 2 3

Counsel's conduct is not deficient if it " an be characterized as legitimate trial strategy or c

tactics."State v. Kyllo, 166 Wn. d 856, 863, 215 P. d 177 (2009).Berg and Reed argue that, 2 3

their counsel recognized the prosecutor's improper remarks and decided not to object, but instead to respond during the defense's closing argument. This response evidences a tactical decision

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about the appropriate way in which to neutralize the remarks' effect. Because that tactical decision can be characterized as legitimate, it does not overcome our strong presumption of

counsel's effectiveness. Kyllo, 166 Wn. d at 863; McFarland, 127 Wn. d at 335. This 2 2

argument fails.

II. SUFFICIENCY OF THE EVIDENCE

Berg further argues that insufficient evidence supports his conviction for witness intimidation. We disagree.

When a defendant challenges the sufficiency of the evidence supporting his conviction, we examine the record to decide whether any rational trier of fact could have found that the State

proved the offense beyond a reasonable doubt. Green, 94 Wn. d at 221 22. In a challenge to the 2 -

evidence's sufficiency, the defendant admits the truth of all the State's evidence; therefore we consider the evidence and all reasonable inferences from it in the light most favorable to the State. McPhee, 156 Wn. App. at 62. Further, circumstantial evidence and direct evidence are

equally reliable. State v. Thomas, 150 Wn. d 821, 874, 83 P. d 970 ( 004). 2 3 2 But the proof of a

fact cannot rest on mere " guess, speculation, or conjecture."State v. Colquitt, 133 Wn. App.

789, 796, 137 P. d 892 (2006). 3

To convict Berg of witness intimidation,the State was required to prove that Berg or Reed, acting as Berg's accomplice, threatened Watts to induce him not to report information

relevant to a criminal investigation. RCW 9A. 8. 020( 1),110( Reed acted as Berg's 0 1)( 72. . d).

accomplice if 1) ( Berg either ( ) a solicited, commanded, encouraged, or requested Reed to

intimidate Watts or ( ) b aided or agreed to aid Reed in intimidating Watts; and 2) ( Berg had

general knowledge that his conduct would promote or facilitate Reed's act of witness

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intimidation. RCW 9A. 8. a);142 Wn. d 471, 513, 14 P. d 713 (2000). 020( 3)( 0 State v. Roberts, 2 3

Berg challenges only the second element.

Here, Watts testified that at the end of the robbery, Berg stopped pinning Watts to the floor and asked Reed what to do with respect to Watts. Reed told Watts that he had his wallet and knew where he lived;he then asked if Watts would call the police. Watts answered that he

would tell the police " othing." VRP at 1000. He further testified that Berg and Reed said n 24

t] would hunt me down and kill me"if he went to the police. 24 VRP at 1017. hey

Because Berg asked Reed what to do with Watts, Berg asserts that the record cannot show that he had general knowledge that his conduct would promote or facilitate Reed's act of witness intimidation. We disagree. Viewed in the light most favorable to the State, Berg's question was a prompt for Reed to threaten Watts with harm if he contacted the police. A rational trier of fact could reasonably infer that Berg knew his prompt would promote or facilitate Reed's intimidation of Watts. Thus, the evidence was sufficient to support Berg's conviction as an accomplice to Reed's witness intimidation of Watts.

Arguing to the contrary, Berg relies on Colquitt, 133 Wn.App. at 796, and asserts that

proof of his knowledge cannot rest solely on " uess, speculation, or conjecture."Br. of g

Appellant at 20 (Berg).But Berg misapprehends Colquitt. Colquitt stands for the proposition that proof of a fact cannot rest on a witness's guess, speculation, or conjecture.16 133 Wn. App.

16 In Colquitt, a police officer testified that he saw a substance that " ppeared to be rock a cocaine."133 Wn. App. at 792 (internal quotation marks omitted).Because the record contained no evidence of the officer's training or experience in the visual identification of cocaine, we held that the officer's visual identification was a bald statement amounting only to a conjecture. 133 Wn. App. at 800 02. That conjecture was insufficient to prove that the - substance was cocaine. 133 Wn. App. at 802.

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at 801 02. But Colquitt also states that the trier offact may rely on circumstantial evidence and -

draw reasonable inferences from the evidence. 133 Wn.App. at 796, 800.

In effect, Berg asserts it is unreasonable to infer that Berg knew Reed would threaten to harm Watts if he went to the police. Contrary to this assertion, that inference is reasonable because Berg tried to prevent Watts from making observations that would incriminate Berg and Reed. While Berg pinned Watts to the ground at gunpoint, Berg told Watts to look straight down

at the floor;Berg threatened to kill Watts "[ w] henever [Watts] tried to turn [ is head] either h

way." VRP at 998. Because it is reasonable to infer that Berg knew Reed would also 24

intimidate Watts, Berg's' argument fails.

III. UNANIMITY JURY INSTRUCTION

Relying on State v. Bashaw, 169 Wn. d 133, 234 P. d 195 (2010), 2 3 Berg and Reed next

argue that the trial court erred by instructing the jury that its special verdict on an aggravator or sentence enhancement must be unanimous. But our Supreme Court has overruled its decision in

Bashaw. State v. Nunez, 174 Wn. d 707, 709 10,285 P. d 21 (2012).Thus, it is not error to 2 - 3

instruct a jury to return a unanimous special verdict in a criminal case. Nunez, 174 Wn. d at 2 709 10. -

Here,the trial court instructed the jury that its answer to the special verdict forms must be

unanimous. This instruction was correct. Nunez, 174 Wn. d at 709 10. Berg and Reed's 2 -

argument fails.

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IV. MOTION FOR MISTRIAL DUE TO IMPROPER OPINION TESTIMONY

Reed further argues that the trial court erred by denying his motion for a mistrial after Sergeant Alie expressed an improper personal opinion on Reed's state of mind. Again, we disagree.

We review the denial of a motion for a mistrial for an abuse of discretion. State v. Greiff,

141 Wn. d 910, 921, 10 P. d 390 ( 000).A trial court abuses its discretion when its decision is 2 3 2

manifestly unreasonable, based on untenable grounds, or made for untenable reasons. Rohrich,

149 Wn. d at 654. 2

A trial court should grant a motion for mistrial only when an irregularity has so

prejudiced the defendant that only a new trial can remedy the error. Greiff, 141 Wn. d at 920- 2

21. Here, an irregularity occurred when Sergeant Alie's testimony violated an order in limine

excluding all testimony expressing " any conclusion or opinion as to [Reed's] intent,state [of]

mind, or theoretical objective or purpose"when he ducked under the car's steering wheel just before Sergeant Alie was shot. See ER 701; CP at 112 (Reed).During the State's direct examination, Sergeant Alie described his approach to the car after he pulled it over:

ALIE]:Car was still running....I said, Turn the car off." " Then there's a beat where there's nothing, no response at all. Suddenly Reed] makes a real willful,intentional movement ( ndicating)— i

REED'S COUNSEL]: Objection, Your Honor.

BERG'S COUNSEL] : Objection. _

THE COURT: All right. I'l sustain the l objection.

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To witness:) Officer, you need to describe what it is that you saw. It's jurors to decide what ... the mental state of any particular person for the is. To jurors:) personal opinions of the officer in that regard should be The disregarded by you.

24. RP at 1142 43. Berg and Reed moved for a mistrial. V -

Reed argues that the trial court erroneously denied the motion for mistrial because Sergeant Alie's opinion testimony violated the order in limine and invaded the province of the jury. In determining whether an irregularity caused prejudice warranting a mistrial, we examine

1) seriousness of the irregularity, 2) the ( whether the irregularity involved cumulative evidence,

and ( ) 3 whether the trial court gave a proper curative instruction. State v. Hopson, 113 Wn.2d

273, 284, 778 P. d 1014 (1989).We hold that the trial court did not abuse its discretion in 2

denying the motion. A. Seriousness

As the trial court acknowledged,the irregularity here was serious. See State v.

Thompson, 90 Wn. App. 41,46, 950 P. d 977 (1998).A violation of an order in limine can 2

warrant a mistrial, even though it does not necessarily do so. State v. Clemons, 56 Wn.App. 57,

62, 782 P. d 219 (1989).Further, a police officer's opinion testimony on a criminal defendant's 2 17 state of mind is " clearly inappropriate." State v. Montgomery, 163 Wn. d 577, 591, 183 P. d 2 3

267 (2008)citing State v. Farr - ( Lenzini, 93 Wn. App. 453, 463, 970 P. d 313 (1999)). 3 While

17 The State denies that Sergeant Alie's testimony expressed an inadmissible opinion. But this denial ignores the trial court's ruling on Berg and Reed's evidentiary objection: the trial court excluded Sergeant Alie's testimony because it expressed an improper opinion. Thus we consider only the issue presented by this appeal: whether the trial court erred by refusing to declare a mistrial.

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denying the motion for mistrial,the trial court stressed the seriousness of the irregularity by warning Sergeant Alie that any additional opinion testimony would raise "the risk that [the trial court] will have to start this trial over again."24 VRP at 1166.

However, other facts mitigate the seriousness of the irregularity. The trial court found that Sergeant Alie did not express an opinion about an element of the crime, such as whether Berg and Reed had a premeditated intent to cause Sergeant Alie's death. Instead, Sergeant

Alie' s testimony described —albeit with a gratuitously " oor choice of words" — observation p his

that Reed's movement appeared to be a volitional act as opposed to an accident. 24 VRP at 1165. Standing alone, the seriousness of the violation of the order in limine does not require a mistrial. B. Cumulative Evidence

Next, Reed asserts that the irregularity did not involve cumulative evidence. This assertion misstates the record. The trial court sustained the objection to Sergeant Alie's testimony and then directed the State to restate its question. In response to the restated question, Sergeant Alie testified that he directed Reed to turn off the car but Reed did not comply. Instead,

Reed " ent over, ducking towards the center console area"of the car. 24 VRP at 1143. Berg b

and Reed did not object to this testimony or mention it while arguing their motion for a mistrial. Given Sergeant Alie's admissible testimony, the majority of his inadmissible opinion involved cumulative evidence. C. Curative Instruction

Third,the trial court gave a proper curative instruction. After sustaining Berg and Reed's immediate objection to Sergeant Alie's statement, the trial court instructed the jurors to disregard

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Sergeant Alie's opinion. Later, when charging the jury,the trial court instructed the jury to consider only the evidence admitted at trial and not to consider any testimony ruled inadmissible. Together, these instructions cured any prejudice from the inadmissible opinion testimony.

Arguing to the contrary, Reed asserts that the trial court's instruction failed to cure the 18 prejudice for two 1) s opinion testimony invaded the province Alie' reasons: ( of the jury and (2) 19 a police officer's testimony carries an aura of reliability. But, absent evidence to the contrary,

we presume that jurors followed a trial court's instructions. Montgomery, 163 Wn. d at 596. 2

For that reason, whether the trial court properly instructed the jury is important to determining

whether opinion testimony prejudiced a defendant. Montgomery, 163 Wn. d at 595. Reed 2

identifies no evidence to rebut the presumption that the jury followed the trial court's instructions and did not consider Sergeant Alie's inadmissible opinion testimony at all.

The trial court did not abuse its discretion in denying Berg and Reed's motion for a

mistrial. See Rohrich, 149 Wn. d at 654. Thus Reed's argument fails. 2

18 By invading the province of the jury,the admission of improper opinion testimony may violate the defendant's constitutional right to a jury trial. State v. Demery, 144 Wn. d 753, 759, 30 P. d 2 3 1278 (2001)plurality opinion).But not every opinion expressed by a witness amounts to a ( constitutional violation. State v. Kirkman, 159 Wn. d 918, 928, 155 P. d 125 (2007) The 2 3 (" assertion that the province of the jury has been invaded may often be simple rhetoric. "). Moreover, Reed cites no authority for the proposition that the exclusion of improper opinion testimony can invade the province of the jury. 19 Our Supreme Court has recognized that the testimony of police witnesses carries an "` aura of reliability "' that may heighten the danger of opinion testimony. Montgomery, 163 Wn. d at 595 2 quoting Demery, 144 Wn. d at 765). 2

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V. CUMULATIVE ERROR

Lastly, Reed argues that cumulative error warrants the reversal of his convictions. We disagree.

The cumulative error doctrine may warrant reversal of a defendant's conviction if the combined effect of several errors deprived the defendant of a fair trial,even if each error

standing alone would not warrant reversal. Greiff, 141 Wn. d at 929 ( iting State v. Coe, 101 2 c

Wn. d 772, 789, 684 P. d 668 (1984)). defendant has not had a fair trial when, considering 2 2 The

the trial's scope, the errors' combined effect materially affected its.outcome. See State v.

Russell, 125 Wn. d 24, 94, 882 P. d 747 ( 994).However,the cumulative error doctrine does 2 2 1

not warrant reversal when a trial has few errors with little or no impact on the outcome. State v.

Weber, 159 Wn. d 252, 279, 149 P. d 646 (2006).When applying the cumulative error 2 3

doctrine, we consider errors committed by the trial court as well as instances of misconduct by

other participants, such as prosecutors or witnesses. See Greiff, 141 Wn. d at 929 (collecting 2

cases); State v. Venegas, 155 Wn.App. 507, 520, 228 P. d 813, review denied, 170 Wn. d 1003 3 2

2010).

Reed argues that reversal is warranted by the cumulative effect of three errors: 1) (

Sergeant Alie's improper opinion testimony, 2) prosecutor's trivialization of the reasonable ( the

doubt standard, and (3) prosecutor's improper characterization of the jury's task as a search the

for the truth . But considering the full scope of this trial,we are convinced that these errors did

20 Reed also asserts that the trial court erroneously instructed the jury to unanimously answer the questions on the special verdict forms. Because we held that these instructions were not erroneous, we do not consider them in this cumulative error analysis. See Russell, 125 Wn. d at 2 94.

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not materially affect the outcome. Russell, 125 Wn. d at 94. Because Reed had a fair trial,the 2

cumulative error doctrine does not warrant reversal of his convictions. Greiff, 141 Wn. d at 929. 2

MIT01

In his pro se SAG, Reed raises five additional arguments. All lack merit.

1. EVIDENTIARY ERROR

Reed first argues that the trial court erroneously admitted 21 Watts's cell phone as

evidence because police obtained the phone " n violation of his 4th amendment rights."SAG at i

1. But Reed does not state why he believes the search violated his rights. Because Reed's SAG fails to inform us of the nature and occurrence of an alleged error, we do not consider this

argument. RAP 10. 0( c); 1 State v. Bluehorse, 159 Wn. App. 410, 436, 248 P. d 537 (2011). 3

II. IMPROPER ARGUMENT

Asserting another act of prosecutorial misconduct, Reed argues that reversal is warranted because the State's closing argument shifted the burden of proof to the defense and referred to the defendants' silence when suggesting that certain evidence was undisputed. We disagree that reversal is warranted.

Prosecutorial misconduct warrants reversal of a conviction when the defendant meets his

burden of establishing.that ( ) prosecutor acted improperly and (2) prosecutor's improper 1 the the

act prejudiced the defendant. Emery, 174 Wn. d at 756. Although the prosecutor's remarks 2

about undisputed evidence were improper,they did not prejudice Reed.

21 Reed challenges the trial court's a] of evidence," its denial of his motion to "[ dmission not suppress evidence. SAG at 1.

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During closing argument, the prosecutor suggested that certain elements were undisputed. Berg and Reed objected after the State completed its argument, and the trial court ruled that the prosecutor's suggestions were improper.

Because Reed objected, we ask whether there is a substantial likelihood that the improper

suggestion prejudiced Reed by affecting the verdict. Emery, 174 Wn. d at 760. We answer in 2

the negative.

After sustaining Reed's objection, the trial court gave a curative instruction to the jury:

During the course of the prosecutor's argument on two issues, he briefly referenced the idea that those issues were undisputed. That's an inaccurate statement of the law. As I advised you both at the beginning and during my instructions, the entry of the plea of not guilty puts in issue every element of each crime charged. And it' the State's burden to, if they s wish to convince you to convict someone of a crime, convince you on all issues with evidence beyond a reasonable doubt. Otherwise it' your duty to find a s person not guilty of that crime. So to the extent that the argument suggested that something was undisputed, that was inaccurate and you should disregard that argument.

29 VRP at 2308 09. -

Because jurors are presumed to follow the trial court's instructions, this instruction cured

the prejudice resulting from the prosecutor's improper suggestion. See Montgomery, 163 Wn. d 2

at 596. Thus, Reed's argument fails.

III. INSTRUCTIONAL ERROR

Reed next argues that the trial court committed three errors in instructing the jury on the charge of attempted first degree murder. Specifically, Reed argues that the trial court erred by

1) failing to instruct the jury on rendering criminal assistance as a lesser included charge to

complicity to commit attempted first degree murder, 2) ( refusing to instruct the jury on the

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definition of rendering criminal assistance, and (3)refusing to instruct the jury that the mere act of driving a car with knowledge that a passenger has committed a crime does not by itself

establish that the driver acted as an accomplice to the passenger's crime. We hold that the.rial t

court committed no error. A. Lesser Included Instruction

Reed first argues that the trial court erred by denying his request to instruct the jury that first degree rendering criminal assistance is a lesser offense included in attempted first degree murder. This argument lacks merit.

A lesser included instruction is required only when the offenses and evidence satisfy the

two - pronged Workman test, consisting of a legal prong and a factual prong. State v. Workman,

90 Wn. d 443, 447 48,584 P. d 382 ( 978).We hold that rendering criminal assistance and 2 - 2 1

accomplice liability for attempted first degree murder fail to satisfy the legal prong.

We review a trial court's ruling on the legal prong de novo. State v. LaPlant, 157 Wn.

App. 685, 687, 239 P. d 366 (2010).Two offenses satisfy the Workman test's legal prong if 3

each element of the lesser offense is also a necessary element of the charged offense. LaPlant, 157 Wn. App. at 687.

Here, the charged offense and the lesser offense do not satisfy the legal prong because

none of the elements of the lesser offense are elements of.he charged offense. The lesser t

offense, first degree rendering criminal assistance, has two elements: 1) ( intent to prevent,

hinder, or delay the apprehension or prosecution of another person who he knows has committed or is being sought for first degree murder; and (2)conduct consisting of harboring or concealing the person, warning the person of impending discovery or apprehension, providing the person

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with means of avoiding discovery or apprehension, preventing or obstructing anyone from possibly aiding in the discovery or apprehension of the person, concealing or altering evidence that might aid in the person's discovery or apprehension, or giving the person a weapon. RCW

1). 050,. 9A. 6. 070( 7

Neither of the lesser offense's two elements is also a necessary element of the charged

offense, attempted first degree murder. RCW 9A. 8. 020( 1 32. . 2 ), 30( Therefore the two . 1). 0

offenses fail to meet the legal prong, and a lesser included instruction is not required. LaPlant, 157 Wn. App. at 687. Reed's argument fails, and we do not address the factual prong. B. Instruction on Rendering Criminal Assistance

In the alternative, Reed next argues that the trial court erred by refusing to instruct the jury on the definition of first degree rendering criminal assistance, even though the State did not charge rendering criminal assistance and the trial court ruled that it was not a lesser included offense. This argument also lacks merit.

The standard of review for a refusal to give a requested jury instruction depends on

whether the refusal was based on a matter of law or fact. State v. Walker, 136 Wn. d 767, 771, 2

966 P. d 883 (1998). the refusal was based on a matter of law, our review is de novo; if it was 2 If

based on a matter of fact, we review the refusal for an abuse of discretion. Walker, 136 Wn. d at 2

771 72. Here, the trial court refused Reed's requested instruction as a matter of law because it is -

inappropriate to instruct the jury on the definition of an offense that the State has not charged

when it is not a lesser included offense. Thus, our review is de novo. Walker, 136 Wn. d at 772. 2

Jury instructions are proper when they permit the parties to argue their case theories, do not mislead the jury, and properly inform the jury of the applicable law. State v. Mark, 94

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Wn. d 520, 526, 618 P. d 73 (1980).Reed argues that the trial court's refusal to instruct the 2 2

jury on the definition of rendering criminal assistance prevented him from arguing his theory of the case: namely,that he was not complicit to Berg's attempted first degree murder of Sergeant Alie,but instead merely rendered criminal assistance by driving away after the shooting. We disagree.

Simply put, Reed's theory was that the State failed to prove beyond a reasonable doubt that Reed acted as an accomplice when Berg shot Sergeant Alie. Taken together, the trial court's jury instructions on the reasonable doubt standard, accomplice liability, and attempted first degree murder allowed Reed to argue this theory. Reed's argument fails. C. Instruction on a Driver's Complicityfor a Passenger's Crime

Citing State v. Robinson, 73 Wn.App. 851, 872 P. d 43 (1994), 2 Reed argues that the trial

court erred by refusing to specifically instruct the jury that, standing alone, the mere act of driving a car with knowledge that a passenger has committed a crime cannot establish that the driver acted as an accomplice to the passenger's crime. But Robinson is inapposite.

Robinson involved a challenge to the sufficiency of the evidence, not to jury instructions. 73 Wn.App. at 852. A precedential case holding that certain evidence is not sufficient to prove an element beyond a reasonable doubt does not warrant a specific jury instruction on the

insufficiency of certain evidence. State v. Veliz, 76 Wn.App. 775, 778, 888 P. d 189 (1995). 2

Further, as a matter of law,the trial court's refusal was correct. As the trial court

explained: If " the ... evidence was insufficient to submit [this] case to the jury,then it wouldn't

be my job to instruct the jury about that[;]would be my job to dismiss the case."29 VRP at it

2180; See Veliz, 76 Wn. App. at 778 79 n. . Reed's arguments of instructional error fail. - 6

IM

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IV. INEFFECTIVE ASSISTANCE OF COUNSEL

Reed next claims that he received ineffective assistance of counsel because his trial

counsel " id very little cross examination"and did not ask Sergeant Alie any questions. SAG at d 22 2. This claim fails because his counsel's performance was not deficient.

Both the federal and state constitutions guarantee criminal defendants effective assistance

of counsel. U. .CONST. amend. VI;WASH. CONST. art. I, § But our constitutions do not S 22.

guarantee'a criminal defendant the successful assistance of counsel. State v. Dow, 162 Wn. App.

324, 336, 253 P. d 476 (2011).We review ineffective assistance of counsel claims de novo. 3

Sutherby, 165 Wn. d at 883. 2

In reviewing claims of ineffective assistance, we begin with a strong presumption of

counsel's effectiveness. McFarland, 127 Wn. d at 335. A defendant claiming ineffective 2

assistance of counsel has the burden to establish that counsel's performance (1)was so deficient

that it deprived the defendant of his constitutional right to counsel and (2) prejudiced the

defendant's case. Strickland, 466 U. .at 687. Failure to establish either prong is fatal to an S

ineffective assistance of counsel claim. Strickland, 466 U. .at 700. S

22 Reed also bases his claim of ineffective assistance of counsel on two grounds that we do not address. First, Reed asserts that his counsel refused Reed's request to question the jury after it delivered its verdict. This claim is not reviewable because the record does not disclose that Reed asked his counsel to question the jury after its verdict. When a claim of ineffective assistance of counsel is based on matters outside the trial court record, we do not consider the claim in a direct appeal, but the defendant may raise it in a personal restraint petition. See McFarland, 127 Wn. d at 335. Second, Reed claims that " verall [ is counsel] did very little of anything 2 o h throughout the trial."SAG at 2. This claim is so vague that it fails to inform us of the nature and occurrence of an alleged error. RAP 10. 0( c); 159 Wn.App. at 436. 1 Bluehorse,

M

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Deficient performance occurs when counsel's performance falls below an objective

standard of reasonableness. Reichenbach, 153 Wn. d at 130. Counsel's conduct is not deficient 2

if it " an be characterized as legitimate trial strategy or tactics."Kyllo, 166 Wn. d at 863. Here, c 2

Reed's argument fails because his counsel's performance in cross -examining the State's witnesses was not deficient.

In general, counsel's whether and how much to decision about "` cross -examine "' is a

matter of trial tactics. In re Pers. Restraint ofStenson, 142 Wn. d 710, 735, 16 P. d 1 ( 2001) 2 3

quoting State v. Piche, 71 Wn. d 583, 590, 430 P. d 522 (1967)). 2 2 Here, the record shows that

Reed's counsel decided to avoid cross -examining Sergeant Alie specifically because he feared

the " rave risk"of testimony that would express an opinion on Reed's state of mind when he g

ducked inside the car. 24 VRP at 1162. These decisions can be characterized as legitimate trial

tactics and thus are not a deficient performance. Kyllo, 166 Wn. d at 863. Reed's claim of 2

ineffective assistance fails.

V. MOTIONS FOR MISTRIAL

Lastly, Reed argues that the trial court erroneously denied " umerous motions for n

mistrial based on conduct that occurred throughout [the]trial and cumulative error that exist in

the.record of the] case."SAG at 2. We disagree. [

In considering the arguments raised in Reed's briefing, we have already addressed his

arguments that ( ) trial court twice erred in denying his motions for mistrial and ( ) 1 the 2 the

cumulative error doctrine warrants reversal of his convictions; we do not consider those arguments again in Reed's SAG. The only other motion for a mistrial followed the prosecutor's

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improper suggestion that some elements were undisputed. In support of this motion,Reed argued that the suggestion constituted prosecutorial misconduct and violated an order in limine.

We review the denial of a motion for a mistrial for an abuse of discretion. Greiff, 141

Wn. d at 921. A trial court abuses its discretion when its decision is manifestly unreasonable, 2

based on untenable grounds, or made for untenable reasons. Rohrich, 149 Wn. d at 654. But 2

Reed's SAG does not offer any basis on which we could conclude that the trial court abused its discretion by denying the motion for mistrial and giving a curative instruction to the jury. This argument fails.

We affirm in part and reverse in part. We affirm Berg's and Reed's convictions, except that we reverse their convictions for first degree kidnapping due to insufficient evidence. Accordingly,we remand for resentencing consistent with this opinion.

Worswick, C. . J We concur: