STATE v. MITCHELL, 47209-7-I (Wash.App. 12-17-2001)

No. 47209-7-IThe Court of Appeals of Washington, Division One.
Filed: December 17, 2001 UNPUBLISHED OPINION

Appeal from Superior Court of King County, No. 99-1-50867-6, Hon. Deborah D. Fleck, August 9, 2000, Judgment or order under review.

Counsel for Appellant(s) Nielsen Broman Associates Pllc 810 Third Avenue 320 Central Building Seattle, WA 98104

Dana M. Nelson, Nielsen Broman Associates Ste 320 Central Bldg., 810 3rd Ave Seattle, WA 98104

Counsel for Respondent(s) Prosecuting Atty King County King County Prosecutor/Appellate Unit 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104

Ian M. Goodhew 516 3rd Ave., Seattle, WA 98104

COX, J.

Rashied Mitchell appeals his conviction of second degree assault and misdemeanor harassment. Because the trial court’s failure to define simple assault for the jury is not a manifest constitutional error, Mitchell cannot raise the issue for the first time on appeal. Although the trial court erred by instructing the jury on an uncharged alternative means of committing harassment, that error was harmless. A physician’s assistant who testified that she had no doubt that the victim had been assaulted did not invade the province of the jury. And the trial court properly admitted evidence that Mitchell had resisted arrest because the evidence supported a reasonable inference of consciousness of guilt. Finally, Mitchell received effective assistance of counsel, and there was no prosecutorial misconduct. . .

We affirm.

In June 1999, Rashied Mitchell met Sara Jolliffe through a telephone chat line, and the two began dating. Mitchell moved in with Jolliffe at her mother’s house approximately three months later. Their relationship during the next few months was a rocky one, and on Christmas morning Jolliffe’s mother stated that Mitchell was no longer welcome at the house. Mitchell nevertheless returned, and gained entry to the home that evening while Jolliffe was there alone. According to Jolliffe, Mitchell ordered her to go to her bedroom where he then told her to take off her clothes and demanded that they engage in anal sex. He began hitting Jolliffe in the head with his fist until she complied. Jolliffe stated that she then tried to leave the room, but Mitchell restrained her, pinned her to the bed, and began choking her until she momentarily lost consciousness. He continued to hit her after she awoke, and threatened her when she tried several times to leave the room. Mitchell finally allowed Jolliffe to get a glass of water. She told her mother, who had returned home by this time, to call 911.

The State charged Mitchell by amended information with rape in the first degree and felony harassment. The trial court instructed the jury on first degree rape, and the lesser included offenses of second degree rape and second degree assault. A jury convicted Mitchell of second degree assault and misdemeanor harassment.[1] The trial court imposed a 30 month exceptional sentence up for the assault conviction, and a concurrent 12 month suspended sentence for the harassment conviction.

Mitchell appeals.

Jury Instructions
For the first time Mitchell argues on appeal that the trial court erred by failing to instruct the jury on all the elements of second degree assault because it refused his proposed instruction defining the term “assault.” This is not a manifest error affecting a constitutional right, and we decline to review it.

The trial court instructed the jury that “[a] person commits the crime of second degree assault when he intentionally assaults another and thereby recklessly inflicts substantial bodily injury.” Mitchell proposed an instruction defining the term “assault,” but the court rejected it. He did not except to the court’s decision to exclude the instruction. Mitchell argued in his brief that he may raise this issue for the first time on appeal because the court’s failure to give the instruction defining assault was a manifest error of constitutional magnitude.[2]
At oral argument, he conceded that there is no such error here, citin State v. Daniels.[3] .

We accept the concession. In Daniels, the State charged the defendant with two counts of assault of a child in the second degree, and asserted that he had committed the offenses by actual battery.[4] The defendant argued for the first time on appeal that the trial court had erred by failing to instruct the jury on the definition of “battery.”[5] We concluded that the definition of battery was not an element of assault by battery, and declined to review the alleged error because it was not a manifest error affecting a constitutional right.[6] Similarly, in State v. Pawling,[7] the defendant argued for the first time on appeal that the trial court had erred by failing to define the word “assault” for the jury. This Court declined to consider the defendant’s argument, explaining that: “[t]he constitutional requirement is only that the jury be instructed as to each element of the offense charged . The failure of the court to define further one of those elements is not within the ambit of the constitutional rule.”[8] This Court, accordingly, concluded that the claimed error was not of constitutional magnitude, and determined that it need not consider the issue any further.[9] This Court nevertheless touched briefly on the merits, noting that the trial court did not need to define “assault” because the word “is not exclusively of legal cognizance, and an understanding of its meaning can fairly be imputed to laymen.”[10] As Mitchell now concedes, the trial court’s alleged error in failing to define “assault” simply does not rise to the constitutional level. Moreover, because the meaning of the word “assault” is of common understanding, the trial court did not abuse its discretion by deciding not to define the term for the jury.[11] For these reasons, we decline to address the issue further. Uncharged Alternative Means Mitchell next argues that the trial court erred by instructing the jury on an uncharged alternative means of committing harassment. The State properly concedes that this was error. But because that error was harmless beyond a reasonable doubt, we affirm the misdemeanor harassment conviction. Washington’s criminal harassment statute, RCW 9A.46.020(1), sets forth four alternative means of committing the offense. Under this statute, a person may commit criminal harassment by threatening “bodily injury,” “physical damage to property,” “physical confinement or restraint,” or “[m]aliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety.” The State charged Mitchell with committing felony harassment under the first of these four alternative means. Specifically, it alleged that Mitchell “did threaten to cause bodily injury immediately or in the future to Sara Marie Jolliffe by threatening to kill Sara Marie Jolliffe, and the words or conduct did place said person in reasonable fear that the threat would be carried out.”[12]

The State did not charge Mitchell with committing the offense under any of the other alternative means. The trial court nevertheless instructed the jury on a second uncharged alternative means.[13] The “to convict” instruction permitted the jury to convict Mitchell if it found that he had committed harassment either by the charged means, or by the uncharged alternative of threatening “maliciously to do any act which was intended to substantially harm Sara Jolliffe with respect to her physical or mental health or safety .” When an information alleges only one alternative means of committing a crime, it is constitutional error for the court to instruct the jury on a different, uncharged means, regardless of the strength of the evidence admitted at trial.[14] To try a defendant under an uncharged statutory alternative is typically reversible error “because it violates the defendant’s right to notice of the crime charged.”[15] Accordingly, as the State properly concedes, the trial court erred by instructing the jury on an uncharged alternative means of committing harassment. The State also concedes that Mitchell may raise this issue for the first time on appeal because the error is a manifest one affecting a constitutional right.

We accept these concessions. Notwithstanding its concessions, the State argues that the error is harmless beyond a reasonable doubt. Specifically, the State contends that there is no possibility that the jury convicted Mitchell of the uncharged means. We agree. Courts presume that an instructional error is prejudicial unless the State meets its burden of affirmatively showing that the error was harmless.[16] Such an error is harmless “if [we are] convinced beyond a reasonable doubt that any reasonable jury would reach the same result absent the error, and where the untainted evidence is so overwhelming it necessarily leads to a finding of guilt.”[17] Accordingly, instructing the jury on an uncharged alternative means may be harmless if there is no possibility that the jury convicted the defendant on the uncharged alternative means.[18] In Nicholas, this Court held that error in instructing the jury on an uncharged alternative means of committing first degree robbery was harmless beyond a reasonable doubt because there was no possibility that the jury had convicted the defendant on the uncharged means.[19]
The jury there found, by special verdict, that the defendant was armed with a deadly weapon and had thus committed the crime by the charged means.

This Court concluded that there was “no possibility” that the jury had impermissibly convicted Nicholas under the uncharged alternative means of “display[ing] what appears to be a firearm or other deadly weapon.”[20]
If, however, it is possible that the jury might have convicted the defendant under the uncharged alternative, then the error is prejudicial.[21] In Severns, for example, our Supreme Court held that an error in instructing on the uncharged alternative means of committing rape was prejudicial where the evidence presented at trial supported the defendant’s conviction under either means.[22] Here, there is no possibility that the jury impermissibly convicted Mitchell under the uncharged alternative means. Jolliffe testified that, on the night in question, Mitchell threatened to “break [her] nose, blacken [her] eyes, and knock out [her] two front teeth.” He also threatened to “snap [her] neck” and told her that he was going “to fuck [her] in the ass.” Based on Jolliffe’s testimony, the jury could only have convicted Mitchell under the charged means of threatening to inflict bodily injury. The only threats in evidence were unambiguous threats of bodily injury. Mitchell’s threats to break Jolliffe’s nose, blacken her eyes, knock out her teeth, and snap her neck can only be characterized as threats to inflict bodily injury. And Mitchell’s demand for anal sex, if characterized as a threat, was also a threat to inflict bodily injury. In a separate instruction, the trial court had defined bodily injury as “physical pain or injury, illness or an impairment of physical condition.” Jolliffe testified that she experienced physical pain when Mitchell forced her to engage in anal sex. While Mitchell argues that the jury’s acquittal on the rape charge somehow lessens the nature of the threat, we reject that unpersuasive argument.

There was no doubt as to how Mitchell worded the threat. And in this context there was no way the jury could have viewed the threat as other than one to do bodily harm.

There was simply no evidence that Mitchell threatened to do anything other than inflict bodily injury upon Jolliffe. Because the overwhelming evidence showed that he only made threats of bodily injury, and none other, there can be no reasonable doubt that the jury convicted Mitchell of misdemeanor harassment based on those threats. Simply stated, we cannot conceive of any way in which this erroneous instruction prejudiced him.

Because there is no possibility that the jury could have convicted Mitchell of an uncharged crime, the instructional error was harmless under the constitutional standard.[23]

Opinion Testimony
Mitchell argues for the first time on appeal that the trial court abused its discretion by allowing a physician’s assistant who treated Jolliffe to testify that she had no doubt Jolliffe had been assaulted. Because the alleged constitutional error is not manifest, we decline to consider it. Generally, a witness may not offer opinion testimony regarding the guilt or veracity of a defendant.[24] Such testimony is `unfairly prejudicial “because it invad[es] the exclusive province of the finder of fact.”[25] It violates the defendant’s constitutional right to have an impartial jury independently evaluate the facts.[26]
“Improper opinions on guilt usually involve an assertion pertaining directly to the defendant.”[27] But “testimony that is not a direct comment on the defendant’s guilt, is otherwise helpful to the jury, and is based on inferences from the evidence is not improper opinion testimony.”[28] Accordingly, even testimony that “embraces an ultimate issue to be decided by the trier of fact” is admissible. This Court reviews the trial court’s decision to admit or refuse opinion testimony for an abuse of discretion.[29]

Mitchell argues that the trial court abused its discretion by allowing Elizabeth Lykins, a physician’s assistant who treated Jolliffe on the night in question, to testify that she had no doubt that Jolliffe had been assaulted. But Mitchell failed to raise this issue below. Accordingly, he may raise this issue for the first time on appeal only if the alleged error is a “manifest error affecting a constitutional right.”[30] In analyzing alleged constitutional error raised for the first time on appeal, this Court must first “make a cursory determination as to whether the alleged error in fact suggests a constitutional issue.”[31] This Court will then “determine whether the alleged error is manifest.” An error is manifest if it had practical and identifiable consequences at trial.[32]

Because the admission of allegedly impermissible opinion testimony implicates a defendant’s constitutional right to an impartial jury trial, the alleged error suggests a constitutional issue. But the claimed error here is not manifest. Citing a footnote in State v. Wilber[33]
Mitchell summarily asserts that the issue of alleged impermissible opinion testimony on guilt is one that he may raise for the first time on appeal. But Mitchell’s reliance on Wilber is misplaced. The footnote upon which he relies simply states that, had the witnesses’ testimony in that case “been an impermissible opinion on the defendant’s guilt, the error would have been one of constitutional magnitude.”[34] That unremarkable observation does nothing to resolve whether this comment here was such an impermissible opinion. “Improper opinions on guilt usually involve an assertion pertaining directly to the defendant.”[35] But “testimony that is not a direct comment on the defendant’s guilt, is otherwise helpful to the jury, and is based on inferences from the evidence is not improper opinion testimony.”[36] Testimony that “embraces an ultimate issue to be decided by the trier of fact” is admissible. For example, i State v. Baird,[37] a defendant appealing his conviction for first degree assault challenged testimony by certain medical professionals that the victim’s injuries appeared to have been inflicted deliberately. This Court held that the testimony was proper, stating that “[t]he fact that the opinions support the jury’s conclusion that Baird was guilty does not make them improper opinions on guilt.”[38] Here, Lykins made no direct comment on Mitchell’s guilt. She simply stated that she had no doubt that Jolliffe had been assaulted. She made no comment on whether it was Mitchell who had committed the assault. The fact that her opinion supported the jury’s ultimate conclusion that Mitchell was guilty of doing so did not make it an improper comment on his guilt. In short, there was no error.

Moreover, because it was part of the defense strategy to concede that an assault had occurred in an attempt to secure an acquittal on the more serious rape charge, he cannot show how her comments unduly prejudiced him.

At oral argument, Mitchell maintained that his attorney had made no such concession. For support, he pointed to the following remarks by his attorney during closing argument:

And then what happened? We don’t know. Was there an argument? Undoubtedley. But was there a battle scene? A battle scene that involved pressure on the carotid artery rendering her unconsciousness [sic] without marks? Was there a somewhat improbable battle scene with this slender young man, well, he’s young to me, picking up a hundred and sixty-four plus pound stocky young woman by her pony tail, picking her up flinging her across a double bed and into a wall and not a hair came out of her head? It’s not logical.

But defense counsel also stated during closing argument that “[t]here was undoubtedly a fight, a verbal fight, there was also undoubtedly some physical activity because she did have slight marks.” She also maintained that the injury to Jolliffe’s jaw was “probably the result of some form of physical attack, but it’s not the result of a rape.” Finally, defense counsel conceded that, “[y]es, there surely was an argument. Yes, there surely [was] hitting. Yes, there surely was something physical, but it wasn’t rape.” Mitchell did not argue that someone else was responsible for Jolliffe’s injuries. We conclude that a fair view of the argument is that defense counsel conceded that an assault had occurred, but maintained that Mitchell had not raped Jolliffe. Because there was no manifest constitutional error, we need not address this argument any further.

Evidence of Resisting Arrest
Mitchell argues that the trial court abused its discretion under ER 404(b) by admitting evidence of his aggressive demeanor at the time of his arrest. We disagree.

At trial, the defense moved in limine to limit testimony by police officers regarding Mitchell’s combative behavior when placed in the patrol car. Defense counsel moved to limit, not exclude, this testimony on the bases that it was irrelevant and prejudicial. The trial court concluded that the testimony was relevant, in part, to show `consciousness of guilt.’ Noting that the defense had not moved to exclude the testimony, it allowed the State to elicit the testimony in full from one officer, and to a limited extent from a second officer. In accordance with this ruling, Officers Donald Davis and Bruce Matthews testified that Mitchell was combative when they attempted to place him in the patrol car. For example, Officer Davis explained that they had to use pepper spray and “distraction strikes” to subdue him. Officer Matthews briefly corroborated that testimony. Mitchell did not object below on the basis of ER 404(b), but nevertheless argues on appeal that the trial court erred under ER 404(b) by admitting evidence of his combativeness at the time of arrest. But an objection that evidence is irrelevant or prejudicial is insufficient to preserve appellate review based on ER 404(b).[39] Accordingly, we need not address Mitchell’s argument that the trial court abused its discretion under ER 404(b). We instead evaluate his argument that the court abused its discretion by admitting the evidence to show consciousness of guilt.[40] It is well settled that evidence of flight is admissible because it creates a reasonable inference that the defendant’s reaction is the product of consciousness of guilt.[41] But evidence of “[a]ctual flight is not the only evidence in this category “[42] For example, evidence of ‘[a]ctual resistance to arrest is admissible if it allows `a reasonable inference of consciousness of guilt of the charged crime.’[43] The probative value of such evidence:

depends upon the degree of confidence with which four inferences can be drawn: (1) from the defendant’s behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.[44]

Courts have criticized the use of evidence of flight `on the grounds that the second and fourth inferences are not supported by common experience and it is widely acknowledged that evidence of flight or related conduct is `only marginally probative as to the ultimate issue of guilt or innocence.”[45] But evidence of a defendant’s resistance to arrest is nevertheless `admissible as evidence of consciousness of guilt, and thus of guilt itself.’[46]

Applying these principles here, the trial court acted within its discretion to view Mitchell’s resistance to arrest as relevant to his consciousness of guilt of the misdemeanor harassment crime charged. Even if we focus solely on the first and third of the above factors, this record was sufficient to show permissible inferences as to both of these factors. Particularly where Mitchell moved only to limit, not exclude, the testimony, and the trial court limited some of the testimony to avoid undue prejudice, we conclude there was no error in admitting the evidence . . . We also note that to establish the crime of harassment, the State had to prove beyond a reasonable doubt that Jolliffe was placed in actual subjective fear of Mitchell, and that her fear was objectively reasonable. Evidence of Mitchell’s aggressive behavior was relevant to establish the reasonableness of Jolliffe’s fear.[47]

Ineffective Assistance of Counsel
Mitchell argues that his trial counsel’s failure to object to certain testimony denied him his constitutional right to effective assistance of counsel. Because he has failed to establish either deficient performance or prejudice, his claim fails.

To prevail on his claim for ineffective assistance of counsel, Mitchell must meet both prongs of a two-prong test.[48] He must first establish that his counsel’s representation was deficient.[49] To show deficient performance, he has the `heavy burden of showing that his attorney `made errors so serious that counsel was not functioning as the `counsel’ guaranteed the defendant by the Sixth Amendment.”[50] He may meet this burden by establishing that, given all the fact and circumstances, his attorney’s conduct failed to meet an objective standard of reasonableness.[51] But deficient performance is not shown by matters that go to trial strategy or tactics.[52] Mitchell must also show that the deficient performance resulted in prejudice such that `there is a reasonable probability that, but for counsel’s errors, the result of the trial would have been different.’[53] This Court employs a strong presumption that counsel’s representation was effective.[54] Mitchell first argues that his attorney’s performance at trial was deficient because she did not move to exclude testimony regarding an outstanding warrant for his arrest. Officer Matthews testified that, when he arrived at the scene, he ran Mitchell’s name through the computer and learned that he had a warrant out for his arrest. The officer mentioned the warrant only briefly while describing the events that unfolded on the night in question. Moreover, the fact that the jury acquitted Mitchell of first degree rape, the most serious charge that he faced, shows that the jury did not rely on Matthew’s testimony to conclude that Mitchell was guilty as charged based on a propensity to commit crime. There is no reasonable probability that Matthews’ brief mention of the warrant affected the outcome of the trial. Mitchell next maintains that his attorney should have moved to exclude, rather than simply limit, evidence that he resisted arrest. But as discussed above, this evidence was admissible to show Mitchell’s consciousness of guilt. Because the evidence was admissible, defense counsel was not deficient in failing to move to exclude it.

Finally, Mitchell asserts that his attorney should have objected to Lykins’ testimony that she had no doubt that Jolliffe had been assaulted. But as discussed above, admission of Lykins’ statement was neither error nor was it manifest In sum, Mitchell has not shown deficient performance or resulting prejudice such that “there is a reasonable probability that, but for counsel’s errors, the result of the trial would have been different.”[55] His claim for ineffective assistance of counsel fails. Prosecutorial Misconduct

Mitchell maintains that the prosecutor committed misconduct during closing argument by discussing the age difference between Mitchell and the victim. We disagree.

A defendant alleging prosecutorial misconduct bears the burden of showing both improper conduct and prejudicial effect.[56] To establish prejudice, the defendant must show a substantial likelihood that the misconduct affected the jury’s verdict.[57] This Court views the prosecutor’s allegedly improper remarks in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury.[58] Failure to object to an improper remark constitutes a waiver of error unless the remark is so “flagrant and ill-intentioned” that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury.[59]

Mitchell argues that the prosecutor committed misconduct when he told the jury during closing argument that it should be `absolutely outraged that a 29-year-old man is living with a 16-year-old girl because a 29-year-old man does not want a normal, healthy relationship with a 16-year-old girl, ever.’ Because he did not object to these remarks below, Mitchell waives these allegations of error unless the prosecutor’s remarks were so `flagrant and ill-intentioned’ that they caused an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury. The prosecutor’s remarks were not so flagrant and ill-intentioned as to be comparable to the kind of remarks that our courts have held to be reviewable.[60] A proper instruction would have cured any impropriety.

Because of the above analysis, we also conclude that there was no cumulative error denying Mitchell a fair trial. . .

AGID and GROSSE, concur.