State v. Martinez

Full title: STATE OF WASHINGTON, Respondent, v. PEDRO MARTINEZ and hector M…

Court: COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

Date published: Oct 22, 2012

NO. 66658-4-I (Wash. Ct. App. Oct. 22, 2012)

Opinion

66658-4-I 66674-6-I

10-22-2012

STATE OF WASHINGTON, Respondent, v. PEDRO MARTINEZ and hector M. Veteta-Contreras, Appellants.

Lau, J.

UNPUBLISHED OPINION

Lau, J.

In this consolidated appeal, Hector Veteta-Contreras and Pedro Martinez challenge their convictions for first degree robbery, attempted first degree robbery, and felony harassment. Veteta-Contreras also appeals his conviction for second degree assault. Together they raise numerous arguments. Finding no reversible error, we affirm their convictions.

FACTS ¹

1 The facts are summarized from the trial evidence.

Robbery of Flores-Cruz

On Friday nights, China Harbor Restaurant in Seattle hosts a Latin music nightclub. On the night of April 16, 2010, Robin Barrera, Denis Garcia, and Martin Monetti went to China Harbor together. They met Pedro Martinez and Hector Veteta-Contreras in the parking lot. Veteta-Contreras and Martinez told the three men that they were from El Salvador, flashed gang signs, and identified themselves as members of a Salvadoran street gang ("Mara Salvatrucha" or "MS-13"). Veteta-Contreras showed off a machete he was hiding in his pants, and Martinez displayed a revolver that he had tucked into his pants. Barrera testified that both Veteta-Contreras and Martinez appeared to be drunk or on drugs.

That night, Walter Flores-Cruz and his girl friend Teresa Sierra were dancing at China Harbor. Shortly after 1 a.m. on April 17, they left China Harbor and walked to their cars in the parking lot. As they talked outside their cars, four men, including Veteta-Contreras and Martinez, approached them. Speaking in Spanish, Veteta-Contreras demanded $20 from Flores-Cruz. Flores-Cruz, who grew up in El Salvador, recognized Veteta-Contreras's Salvadoran accent.

Flores-Cruz refused to give Veteta-Contreras money but Veteta-Contreras insisted, screaming at Flores-Cruz to give him money. Veteta-Contreras lifted his shirt and pulled out a machete. He said that he was "La Mara, " flashed an MS-13 gang sign, and declared, "[T]he beast is on the loose." Report of Proceedings (RP) (Dec. 14, 2010) at 541.

Flores-Cruz told Sierra to get in her car and as he opened her car door, he felt someone push him. Flores-Cruz pulled out a $20 bill and threw the money toward Veteta-Contreras. Martinez asked, "[W]hat did you throw [the] money for? You know, don't throw the money at him." RP (Dec. 14, 2010) at 540. Martinez told Veteta-Contreras to ask for another $20. Veteta-Contreras complied and Flores-Cruz handed him another $20 bill. Veteta-Contreras hugged Flores-Cruz and thanked him for the money.

The four men called Sierra names and blew her kisses. Veteta-Contreras tried to open her car door as she locked it and drove away. Flores-Cruz drove away in his own car and called the police. He reported that men with machetes and guns robbed him of $40. He later conceded at trial that he never saw a gun. Flores-Cruz testified that during the incident, the other two men were "standing there" in the background and he did not see their faces. RP (Dec. 14, 2010) at 537. Sierra recalled only Veteta-Contreras and Martinez; she did not remember two other men nearby.

Attempted Robbery of Duran-Acosta

Around the same time, Eliezer Duran-Acosta, his girl friend Tuiai Sefau, and his friends Juan Lopez-Pando and Michael Hackshaw were outside China Harbor. Duran-Acosta noticed a group of men, including Veteta-Contreras and Martinez, who appeared to be "look[ing] for a fight with someone else in a red car."² RP (Dec. 15, 2010) at 691. Duran-Acosta testified that Veteta-Contreras, wearing a black shirt and black baseball cap, asked for $5. Duran-Acosta testified that Veteta-Contreras "was acting like he might have been on something" and could have been drunk or drugged. RP (Dec. 15, 2010) at 732. When Duran-Acosta refused, Veteta-Contreras grew more aggressive and Duran-Acosta pushed him away. Three other men approached Duran-Acosta, including a taller man wearing shorts and a white T-shirt who had tattoos on his arm. Duran-Acosta later identified this man as Martinez. Duran-Acosta testified that the men said they were gang members and Veteta-Contreras said, "I'm crazy. I'm Mara Salvatrucha." RP (Dec. 15, 2010) at 696.

2 Flores-Cruz had a red car.

Veteta-Contreras pulled out a machete and repeatedly asked Duran-Acosta for money. Duran-Acosta again refused and turned his back to Veteta-Contreras. Veteta-Contreras struck Duran-Acosta's back with the machete, cutting his shirt and bruising his shoulder.³ Duran-Acosta turned to face the men, and Martinez flashed a gun at him. Martinez warned Duran-Acosta's friend, Lopez-Pando, not to interfere or he would kill him. Veteta-Contreras punched Duran-Acosta, and Martinez told him to give Veteta-Contreras money.⁴ The China Harbor security guard noticed the altercation and approached the group. Veteta-Contreras and Martinez left, and Seattle police officers arrived shortly after.

3 At the scene, Duran-Acosta told a responding officer he thought he had been hit by a cable or club. RP (Dec. 15, 2010) at 736. At trial, he said that was a mistake "because after I saw how it tore my shirt, I was like this could be no club or a cable." RP (Dec. 15, 2010) at 736.

4 Duran-Acosta testified that one of the other men, Martin Monetti, was standing behind Veteta-Contreras during the incident. Duran-Acosta asked Monetti to hold Veteta-Contreras back, but Monetti did nothing. RP (Dec. 15, 2010) at 697, 722-30.

Lopez-Pando noted Martinez's and Veteta-Contreras's Salvadoran accents and that all four men appeared to be drunk. He testified at trial that he was "100 percent" sure that Veteta-Contreras was the man who wielded the machete and Martinez was the man who displayed a gun and threatened to kill him.

Police Response

Officer Felix Reyes testified that shortly after 1 a.m. on April 17, 2010, he responded to a police radio call indicating that "[a]t China Harbor [there] was a robbery in progress with a knife."⁵ RP (Dec. 13, 2010) at 328. Officer Reyes and Officer Michael Virgilio arrived at China Harbor just as the bar was closing and people were crowding into the parking lot. Flores-Cruz flagged down the officers and told them he had called the police. Flores-Cruz led the officers to two men in the China Harbor parking lot. Bystanders in the area were yelling that there was "a subject with a gun in a parking lot." RP (Dec. 13, 2010) at 341, 344-44. The officers briefly drew their guns, ⁶contacted the two men (Martinez and Barrera), and told them to get on their knees and sit down on the ground.⁷ Martinez and Barrera complied and sat near each other on the ground. Officer Reyes testified that Martinez wore a white shirt and Barrera wore what appeared to be a "gray argyle." RP (Dec. 13, 2010) at 339, 343. Officer Reyes searched Martinez and Barrera for weapons and found none.

5 Officer Reyes later clarified that "someone had just called saying that a knife was displayed, a machete to be specific, it was on the call, and he was robbed." RP (Dec. 13, 2010) at 338.

6 Officer Reyes testified that he and Officer Virgilio drew their guns because this was a weapons call and a chaotic and potentially violent situation. Drawing their weapons in such a case was standard procedure.

7 This interaction was recorded on an in-car police video. See Ex. 1.

Martinez and Barrera remained seated on the ground nearby while Officer David Terry questioned Flores-Cruz. Flores-Cruz told Officer Terry he was robbed by four men.⁸ Flores-Cruz looked at Martinez and identified him as one of the men who had robbed him. Flores-Cruz told Officer Terry that another man with a "big ass knife" had claimed to be a gangster and threatened to kill him. RP (Dec. 13, 2010) at 371. Flores-Cruz also looked at Barrera and told Officer Terry that Barrera was present when the other men demanded money, but Barrera did not say or do anything. Officer Terry immediately released Barrera. He then spoke to Martinez, who denied any involvement in the robbery or gangs. Martinez also lifted up his shirt to show Officer Terry he had "nothing." RP (Dec. 13, 2010) at 392-93. Officer Terry questioned Flores-Cruz again and asked him if he was certain Martinez had threatened him. Flores-Cruz responded he was certain, and Officer Terry arrested Martinez. Martinez later told the officer that he was from El Salvador.

8 Officer Terry's interaction with Flores-Cruz was recorded on videotape and played for the jury in edited form as exhibit 6. The video was edited to exclude Martinez's acknowledgment that he was on probation, as well as apparent references to Veteta-Contreras.

Meanwhile, Officer John Schweiger spoke to Duran-Acosta and Lopez-Pando.⁹Both men described how Martinez and Veteta-Contreras had confronted and threatened them. Duran-Acosta referred to the men as Mexican, but Lopez-Pando corrected him and said they were Salvadoran. Duran-Acosta stated that one man demanded money and hit him with "a piece of cable or a club" when he refused. Lopez-Pando said that the weapon was a machete. Duran-Acosta said the man who demanded money was short and wore a black T-shirt. Duran-Acosta said another man standing next to the first man lifted his shirt and displayed a gun when Duran-Acosta refused to give the first man money. He described the man with the gun as tall, skinny, tattoos on his arms, and dressed in a white shirt.

9 This interaction was recorded by a police car video camera and the videotape was admitted at trial.

Officer Schweiger drove Duran-Acosta over to look at Martinez, who had been detained a short distance away. Duran-Acosta identified Martinez as the man with the gun. Officer Schweiger asked him if he was sure, and Duran-Acosta responded, "It looks like him." RP (Dec. 13, 2010) at 468.

Meanwhile, Garcia and Monetti walked back to Garcia's car. Monetti testified that Veteta-Contreras joined them and told them the police were coming. Monetti also testified that Veteta-Contreras "pulled out the machete and put it behind the bumper of a truck." RP (Dec. 15, 2010) at 840.

Officer Chris Hairston saw Garcia, Veteta-Contreras, and Monetti walking together. Because Garcia matched the suspect description, Officer Hairston got out of his patrol car, pulled out his gun, and ordered the three men to the ground. Garcia and Veteta-Contreras complied, but Monetti "threw an object into the bushes and then kind of stood there for a second . . . ."¹⁰ RP (Dec. 13, 2010) at 483. Monetti finally complied when Officer Hairston threatened to release his police dog. Monetti laughed, appeared drunk, and got up on his elbows as though to flee.

10 This object was later identified as Monetti's wallet. Monetti testified that he threw the wallet because it contained marijuana and he did not want to get in trouble.

Officer Schweiger drove Duran-Acosta to the scene to identify the three men detained by Officer Hairston. Officers' in-car videos recorded the identification procedure. Duran-Acosta identified Veteta-Contreras as the man who had demanded money and hit him. Duran-Acosta also identified Monetti and told the officers he was not involved in the robbery. Duran-Acosta did not recognize Garcia.

Officers found Monetti's wallet in the bushes and returned it to him after checking his identification. Neither the machete nor the gun was ever recovered. Sergeant Barclay Pierson testified that when Veteta-Contreras and Martinez were booked into jail, Veteta-Contreras had $42.25 in his possession and Martinez had $122.28.

Martinez and Veteta-Contreras generally matched the witnesses' descriptions of the robbers. Witnesses at both incidents said the man with the machete was the shorter of the two men and wore dark clothing. Witnesses said the man with the gun was taller, thinner, and wore a white shirt.

Lineup and Photomontage

In June 2010, Detective Frank Clark arranged for several witnesses to view a lineup and photomontage. The detective arranged a lineup that included Martinez and five other men. Lopez-Pando and Barrera each independently identified Martinez in the lineup as the man with the gun.

Detective Clark also prepared a photomontage containing Veteta-Contreras's photograph.¹¹ Flores-Cruz, Lopez-Pando, and Barrera identified Veteta-Contreras in the photomontage as the man with the machete.

11 Detective Clark did not arrange for a lineup with Veteta-Contreras because, due to Veteta-Contreras's short stature, the detective could not find enough individuals with similar characteristics to fill the lineup. Detective Clark did not have Duran-Acosta view the photomontage because Duran-Acosta had already made an on-scene identification.

Duran-Acosta looked at a photomontage containing a photograph of Monetti. Duran-Acosta stated that Monetti was in the group of people present when he was assaulted and that Monetti told him he should just give Veteta-Contreras the five dollars.

Criminal Charges and Trial

The State charged Martinez and Veteta-Contreras with first degree robbery of Flores-Cruz, attempted first degree robbery of Duran-Acosta, and felony harassment of Lopez-Pando. The State also charged Veteta-Contreras with second degree assault of Duran-Acosta. On the robbery and assault counts, the State added a deadly weapon allegation based on the machete. On the attempted robbery and felony harassment counts, the State charged a deadly weapon enhancement and a firearm enhancement.

At trial, the defense for both Veteta-Contreras and Martinez was identification. All of the civilian witnesses—including Flores-Cruz, Sierra, Duran-Acosta, Lopez-Pando, Monetti, Garcia, and Barrera—positively identified Martinez and Veteta-Contreras as the men who committed the charged crimes. The jury convicted Veteta-Contreras and Martinez on all counts as charged. The trial court imposed standard range sentences. Veteta-Contreras and Martinez appealed, and we consolidated their appeals. We discuss additional facts in the relevant sections below.

ANALYSIS ¹²

12 Veteta-Contreras and Martinez raise some identical issues and some unique issues in their opening briefs. Veteta-Contreras also adopts by reference several of Martinez's arguments.

I. Felony Harassment Charging Document

For the first time on appeal, Veteta-Contreras argues that the felony harassment charging document was insufficient because it omitted an essential element—"true threat." Br. of Appellant at 57.

A charging document must allege "[a]ll essential elements of a crime, statutory or otherwise, " to provide a defendant with sufficient notice of the nature and cause of the accusation against him. State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991); U.S. Const. amend. VI; Wash. Const. art. I, § 22 (amend.10). The rule's primary purpose is to give the defendant sufficient notice of the charges so he can prepare an adequate defense. State v. Tandecki, 153 Wn.2d 842, 846-47, 109 P.3d 398 (2005).

Where, as here, the defendant fails to challenge the sufficiency of a charging document at trial and instead raises his challenge for the first time on appeal, we liberally construe the document in favor of validity. State v. Brown, 169 Wn.2d 195, 197, 234 P.3d 212 (2010). In determining the sufficiency of a charging document, we engage in a two-part inquiry: (1) whether the essential elements appear in any form, or can be found by any fair construction, in the information; and (2) if so, whether the defendant nonetheless was actually prejudiced by the unartful language used. Brown, 169 Wn.2d at 197-98.

Under the harassment statute, RCW 9A.46.020(1)(a)(i), (b), a person commits harassment if, "[w]ithout lawful authority, the person knowingly threatens" to "cause bodily injury immediately or in the future to the person threatened or to any other person, " and "by words or conduct places the person threatened in reasonable fear that the threat will be carried out." Veteta-Contreras was charged under the statute's "felony threat to kill" provision. RCW 9A.46.020(2)(b)(ii).

The amended information alleged in relevant part that

[Veteta-Contreras] . . . knowingly and without lawful authority, did threaten to cause bodily injury immediately or in the future to Juan Lopez Pando, by threatening to kill Juan Lopez Pando, and the words or conduct did place said person in reasonable fear that the threat would be carried out.

To avoid infringement of protected speech, the felony harassment statute prohibits only "true threats." State v. Schaler, 169 Wn.2d 274, 283-84, 236 P.3d 858 (2010); State v. Tellez, 141 Wn.App. 479, 482, 170 P.3d 75 (2007). Our Supreme Court defines "true threat" as

"a statement made in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted as a serious expression of intention to inflict bodily harm upon or to take the life of another person."

Schaler, 169 Wn.2d at 283 (quoting State v. Kilburn, 151 Wn.2d 36, 43, 84 P.3d 1215 (2004)). "The speaker of a 'true threat' need not actually intend to carry it out. It is enough that a reasonable speaker would foresee that the threat would be considered serious." Schaler, 169 Wn.2d at 283 (citation omitted).

In Tellez, we held that the true threat concept is definitional and "limits the scope of the essential threat element, " but "is not itself an essential element of the crime." Tellez, 141 Wn.App. at 484; see also State v. Atkins, 156 Wn.App. 799, 805, 236 P.3d 897 (2010); State v. Allen, 161 Wn.App. 727, 755-56, 255 P.3d 784 (2011), review granted, 172 Wn.2d 1014 (2011).¹³ Veteta-Contreras contends that these decisions cannot be reconciled with our Supreme Court's decision in Schaler.

13 In January 2012, our Supreme Court heard oral argument in Allen.

In Schaler, the defendant challenged the jury instructions defining the crime of felony harassment. Schaler, 169 Wn.2d at 281-82. Because the instructional definition of threat was not limited to true threats, the court concluded the jury could have erroneously convicted Schaler based on "something less than a 'true threat'" and reversed. Schaler, 169 Wn.2d at 287-88. But the Schaler court expressly declined to reach the question of whether a true threat is an essential element of the crime of felony harassment that must be alleged in the charging document:

The situation is not identical to omitted-element cases. Whether the constitutionally required mens rea is an "element" of a felony harassment charge is a question that we need not decide. (We note that there is a Court of Appeals opinion on point, State v. Tellez, 141 Wn.App. 479, 170 P.3d 75 (2007), but we express no opinion on the matter.)

Schaler, 169 Wn.2d at 288 n.6. And in Allen, we rejected Veteta-Contreras's argument that Schaler establishes that true threat is an essential element of felony harassment. Allen, 161 Wn.App. at 755 (thoroughly reviewing the Schaler decision and rejecting appellant's argument that Schaler established that true threat is an essential element of felony harassment: "true threat is merely the definition of the element of threat which may be contained in a separate definitional instruction.").

Tellez, Atkins, and Allen control, and we adhere to those decisions. The felony harassment amended information sufficiently informed Veteta-Contreras of all essential elements.¹⁴

14 We also note that although the amended information did not include the phrase "true threat, " the language used conveys the true threat concept. A jury instruction also defined "[true] threat."

II. Pre-Miranda ¹⁵ Statements

15 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Martinez argues that the trial court erred in admitting statements he made to police before receiving Miranda warnings. He claims warnings are required when a suspect is detained at gunpoint and not free to leave. The State responds: (1) waiver applies because Martinez raises this claim for the first time on appeal, (2) police officers conducted a Terry ¹⁶ stop, and (3) harmless error.

16 Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A Terry stop is an exception to the general rule that warrantless searches and seizures are unconstitutional. State v. Kinzy, 141 Wn.2d 373, 384-85, 5 P.3d 668 (2000). A Terry stop is justified if the State can point to specific and articulable facts giving rise to a reasonable suspicion that the person stopped is, or is about to be, engaged in criminal activity. Kinzy, 141 Wn.2d at 383-84; State v. Kennedy, 107 Wn.2d 1, 4-6, 726 P.2d 445 (1986).

A. Relevant Facts

1. CrR 3.5 Hearing

Martinez's counsel moved to exclude Martinez's pre-Miranda statements because "he was obviously under arrest when he was sat down on the ground and when there was probable cause to arrest him." RP (Dec. 6, 2010) at 51. The State called Officer Terry as its only CrR 3.5 witness. The court admitted Officer Terry's in-car recording of his entire interaction with Martinez and Barrera.

Officer Terry testified that while on patrol, he heard a radio call reporting a man with a gun in the China Harbor area. While en route to the scene, Officer Terry heard a second call reporting a man with a machete in the same area. When he arrived, officers had already detained Martinez and Barrera. They were sitting near each other on the ground. Neither man was handcuffed or physically restrained. Martinez observed Officer Terry question Flores-Cruz and release Barrera after Flores-Cruz told Officer Terry that Martinez had robbed him and Barrera "was just standing there" during the robbery. Officer Terry questioned Martinez "[b]ecause if he had a story that convinced me he didn't have a part in it, I wasn't going to arrest him." RP (Dec. 6, 2010) at 40. Martinez denied involvement in the robbery. Officer Terry turned back to Flores-Cruz and confirmed Martinez's involvement in the robbery. Officer Terry then arrested Martinez and advised him of his Miranda rights. RP (Dec. 6, 2010) at 44.

The trial court viewed the in-car video while Officer Terry responded to questions about the events depicted. Martinez did not testify. The trial court admitted Martinez's pre-Miranda statements, ruling:

I find that this was a Terry stop. The lack of handcuffs is almost dispositive here in the sense that a reasonable person would not believe he or she was under arrest -- full custodial arrest under the circumstances that Mr. Martinez was in. Again he was not free to leave, but he was not in custodial --under custodial arrest.

RP (Dec. 6, 2010) at 55-56. The court entered written findings of fact and conclusions of law that also incorporated its oral ruling and included the entire exchange between Officer Terry and Martinez transcribed from the video. Martinez does not challenge the findings of fact. They are verities on appeal. State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997) (unchallenged findings of fact entered by the trial court following a CrR 3.5 hearing are verities on appeal).

2. Trial Testimony

At trial, Officer Reyes testified that he and Officer Virgilio were the first officers to respond to Flores-Cruz's 911 call.¹⁷ Officer Reyes testified that he knew before arriving at the scene that the call involved an armed robbery with a knife or machete. When they drove into the China Harbor parking lot, the bar was closing and the scene was "chaotic" and "volatile." RP (Dec. 13, 2010) at 329, 332-33, 341. Flores-Cruz flagged them down and said that he was the one who called 911. Officer Virgilio and Flores-Cruz ran toward China Harbor, and Officer Reyes followed them in his car. Officer Reyes explained that when they arrived, people were yelling that there was someone in the parking lot with a gun.

17 Officer Virgilio did not testify at trial.

Flores-Cruz pointed out two men in the parking lot, later identified as Martinez and Barrera. Officer Reyes testified:

I get out of my vehicle—I see Officer [Virgilio] contact two subjects in the lot. . . . We have our guns drawn. . . . And we contact the two subjects. And Officer [Virgilio] places his subject on [the] ground, and my subject lays against a vehicle . . . .¹⁸

RP (Dec. 13, 2010) at 334 (emphasis added). The in-car video shows that Officer Virgilio pointed his gun at Martinez for less than three seconds. When Officer Reyes contacted Martinez, he drew his gun briefly¹⁹ but never pointed it at Martinez. After re-holstering his gun, Officer Reyes searched Martinez but found no weapons. He told Martinez to sit on the ground.²⁰ No one was handcuffed at the scene. Reyes left the scene after debriefing another officer. About 20 minutes passed before Officer Terry questioned Martinez and arrested him.

18 Officer Reyes's in-car video confirms that both officers had their guns drawn. Officer Reyes testified that drawing their weapons in situations like this was "standard op." RP (Dec. 13, 2010) at 338.

19 Officer Reyes had his gun drawn less than 15 seconds.

20 Martinez claims he was "ordered at gunpoint to sit on the ground." Br. of Appellant at 106. According to the officer's in-car video, a minute and a half went by before Officer Reyes ordered Martinez to sit on the ground.

At trial, Officer Terry repeated his CrR 3.5 hearing testimony summarized above and also testified that he never asked Martinez if he had a weapon. Martinez lifted up his shirt to show Officer Terry he had "nothing." RP (Jan. 3, 2011) at 66. According to Martinez, the prosecutor used this evidence to argue in closing that Martinez incriminated himself when he lifted up his shirt and stated, "I don't have nothing, " because it showed guilty knowledge.²¹ RP (Jan. 3, 2011) at 66.

21 The prosecutor argued, "Remember, at this point Pedro Martinez has no idea what other people have said. He has no idea what's going on at the other scene. The police don't even connect it, right? At this point the Eliezer Duran robbery and the Walter Flores-Cruz robbery isn't connected at all. They're not talking to each other. That's one of -- well, they're not talking to each other. But Walter Flores-Cruz never said he had a gun. He never implied it because he didn't know. Eliezer Duran, other side of the parking lot, is telling the police the guy in the white shirt had a gun, and that's the robbery that Pedro Martinez just finished attempting when the police got there. And his first reaction to the question is, 'Did you tell them we were gangsters?' Let's watch that one more time, just those few seconds. (Video played)."

B. Analysis

Relying entirely on Officer Reyes' trial testimony summarized above, Martinez argues for the first time on appeal that Miranda warnings were required because he was subjected to custodial interrogation when he was detained at gunpoint.²² The State responds that (1) Martinez waived this argument by failing to raise it below, (2) the valid Terry stop here requires no Miranda warnings, and (3) the error, if any, is harmless. It is questionable whether Martinez properly preserved the Miranda issue for appellate review. But even if we assume he preserved this issue, his argument fails because the Terry stop here required no Miranda warnings under well-settled authority discussed below.

22 Martinez cites no relevant authority that sanctions the use of trial testimony to undermine the trial court's unchallenged CrR 3.5 findings of fact. In addition, the record shows that the prosecutor was aware of case authority requiring the State to present other officers who were present when a defendant is questioned to dispel factual disputes at a CrR 3.5 hearing. In response to the State's question about the necessity to call other officers to testify, defense counsel said, "No, I'm not raising an issue that would require one of the officers -- one of the other officers to testify." RP (Dec. 6, 2010) at 49. On that assurance, the prosecutor did not call Officers Reyes or Virgilio to testify. Officer Terry was never questioned at the CrR 3.5 hearing about whether officers displayed their guns. We do not consider trial testimony in analyzing the trial court's ruling on the voluntariness of his confession. We review the trial court's CrR 3.5 hearing ruling based on the record made at that hearing. Martinez never moved the court to reconsider its CrR 3.5 ruling once Officer Reyes testified about drawn weapons as discussed above. And Martinez does not allege that he received ineffective assistance when his counsel failed to argue, either at the CrR 3.5 hearing or at trial, that he was subjected to custodial interrogation when Officers Reyes and Virgilio detained him with guns drawn. Even if Officer Reyes's testimony had been presented at the CrR 3.5 hearing, we are confident that the trial court would have admitted Martinez's statements given the record here.

Miranda warnings must be given whenever a suspect is subject to custodial interrogation by police. State v. Heritage, 152 Wn.2d 210, 214, 95 P.3d 345 (2004). A person is in "custody" if, after considering the circumstances, a reasonable person would feel that his or her freedom was curtailed to a degree associated with formal arrest. Heritage, 152 Wn.2d at 218. We review de novo whether an interrogation is custodial. State v. Lorenz, 152 Wn.2d 22, 36, 93 P.3d 133 (2004).

A routine Terry stop is not "custody" for purposes of determining whether statements made during the stop are admissible under Miranda, even though a suspect may not be free to leave when the statements are made. Heritage, 152 Wn.2d at 218; State v. Walton, 67 Wn.App. 127, 130, 834 P.2d 624 (1992). "Thus, a detaining officer may ask a moderate number of questions during a Terry stop to determine the identity of the suspect and to confirm or dispel the officer's suspicions without rendering the suspect 'in custody' for the purposes of Miranda." Heritage, 152 Wn.2d at 218.

Given the facts summarized above, we conclude that a reasonable person in Martinez's position would not have believed his freedom was curtailed to a degree associated with formal arrest. Officer Virgilio pointed his gun at Martinez for less than three seconds. Officer Reyes also briefly drew his gun but never pointed it at Martinez. By the time Officer Terry arrived, Martinez was sitting on the ground in a public place. No guns were pointed at him. He had not been handcuffed. He saw Officer Terry question Flores-Cruz and release Barrera. The officers here conducted a Terry stop. We conclude that under well-settled case authority, Miranda warnings were not required.²³

23 The cases Martinez relies on are not controlling based on the facts of this case. We also note that Martinez claims, "It is undisputed that Martinez did not receive any Miranda warnings in this case . . . ." Br. of Appellant at 109. The record shows that after Officer Terry investigated and arrested Martinez, he advised Martinez of his Miranda rights. RP (Dec. 6, 2010) at 44.

III. Immunity Agreements

For the first time on appeal, Martinez and Veteta-Contreras argue the trial court erred in admitting the State's immunity agreements with Monetti. Martinez frames the issue as evidentiary error and prosecutorial misconduct. Veteta-Contreras adopts Martinez's argument and also claims that (1) the prosecutor's "improper vouching for [Monetti]" constituted prosecutorial misconduct and (2) his counsel's failure to object constituted ineffective assistance of counsel. Br. of Appellant at 46 (formatting omitted).

A. Relevant facts

Monetti agreed to testify at trial only if the State granted him immunity. The State and Monetti entered into two immunity agreements. The September 2010 agreement provided in relevant part:

Because I do not believe . . . that the State can prove you played any role in the robbery, and because you have material evidence of the crimes, I am willing to offer you immunity to prohibit you from making any 5th amendment claims to silence either for defense interviews or for trial testimony.

In exchange for a complete, truthful account of any knowledge you may have relevant to the case, nothing that you say during the defense interview will be used against you in any criminal proceeding.

Ex. 32. The agreement also stated, "In order to secure the State's offer of immunity, you must speak truthfully in interviews and during your testimony." Ex. 32. Both defense counsel interviewed Monetti.

The second agreement stated in relevant part:

As you know, I have met with your attorney, Robert Flennaugh II, concerning your witness of the events outside of China Harbor on April 17, 2010. I have watched the video of your detention and subsequent injury by Seattle Police Officers during the course of the investigation, and have spoken with your friends, Robin Barrera and Denis Garcia Garcia as well as the victims of the robberies. I have also reviewed the police reports and other police videos in this case. I also met with you and your attorney and the defendants' attorneys for an interview in this case, and listened to what you were able to remember of this incident. Based on my review of these items, I do not believe that you played a criminal role in the robbery of either Eliezer Duran or Walter Flores Cruz (the two robbery victims) on the night in question. Based on my conversations with your attorney, my personal interviews with the myriad witnesses in this case, and my review of all the other evidence, I do believe that your testimony at trial is material to the case. Because I do not believe, based on this review, that the State can prove you played any role in the robbery, and because you have material evidence of the crimes, I am willing to offer you full immunity to prohibit you from making any 5th amendment claims to silence either for defense interviews or for trial testimony, regarding both the robbery and your admitted possession of marijuana on the early morning of April 17, 2010.

In exchange for your complete and truthful testimony about what you remember in this case, the State will not file charges of robbery related to this criminal investigation, or any other charges related to the robbery of Eliezer Duran or Walter Flores Cruz or your admitted possession of marijuana. If your testimony at trial leads to knowledge of completely separate charges, the State's immunity offer is limited only to circumstances surrounding the robbery of these two victims and possession of marijuana (for example, if you state that the car you drove in to China Harbor was stolen, or that you had beat up someone in the parking lot, the State may still pursue charges for those crimes).

Mr. Monetti, after speaking to other witnesses and to you, I understand that you were intoxicated on the evening of April 17, 2010, and that you do not remember everything that occurred nor do you recall the exact order of events. I only ask that you be truthful about what you do remember and that you are clear when you cannot recall a specific incident. In order to secure the State's offer of immunity, you must speak truthfully in interviews and during your testimony.

Ex. 32.

During opening remarks, Martinez's counsel stated that a number of witnesses described a man with a gun but argued, "[T]hat wasn't Martinez." RP (Dec. 9, 2010) at 30. Veteta-Contreras's counsel suggested that Monetti had committed the robberies. He speculated that Monetti may have thrown a machete, gun, or money into the bushes. He further suggested that Monetti may have thrown his wallet because it contained the $40 taken from Flores-Cruz. He told the jury that the State had granted Monetti immunity:²⁴

24 The State never mentioned the immunity agreement during opening remarks.

And actually what we're also going to learn is that [Monetti has] been given immunity by the State of Washington. The State of Washington has exchanged immunity for his testimony. . . .

. . . . And Monetti's memory is so shady on other things, but he's the one with immunity, and he's the only one who's going to testify that he saw [Veteta-Contreras] with a machete after all of this.

RP (Dec. 9, 2010) at 44-45.

During Officer Hairston's cross-examination, Veteta-Contreras's counsel focused on Monetti's behavior after he was detained. He asked whether Monetti followed police instructions, whether Monetti appeared to be preparing to run away, and whether this was suspicious behavior.

During Monetti's testimony on direct, the State offered the immunity agreements into evidence as exhibit 32. Neither defense counsel objected, and the court admitted the agreements.²⁵

25 Martinez claims his counsel "indicated that he had an objection but said that it could be taken up later at the conclusion of Monetti's testimony." Br. of Appellant at 33 n.11. The record indicates that his counsel stated, "No objection except for a matter I think that can be taken up at the conclusion of this witness's testimony." RP (Dec. 15, 2010) at 816. The record contains no further discussion of what this "matter" was, nor any further objection to exhibit 32.

Monetti testified at trial that he went to China Harbor with Garcia and Barrera. Monetti had been drinking before he went to China Harbor and drank more alcohol after arriving there. He testified that he, Garcia, and Barrera met Veteta-Contreras and Martinez in the parking lot. Monetti stated that Veteta-Contreras had a machete or a long knife and Martinez displayed a gun. Monetti said he hung around with Veteta-Contreras and Martinez for a while. He saw them approach people, ask for money, and display the machete. He testified that after seeing Veteta-Contreras and Martinez take money from people, he felt threatened and decided to leave.

As Monetti and Garcia were leaving, Veteta-Contreras joined them. Monetti saw Veteta-Contreras hide the machete on the bumper of a truck. When police arrived, Monetti threw his wallet because he had marijuana in it.

During cross-examination by Veteta-Contreras's counsel, Monetti acknowledged that he had seen or had access to machetes at his work. Monetti further stated that he planned to sue the police department and it would be bad for his lawsuit if he was involved in the robberies. Veteta-Contreras's counsel then questioned Monetti about the immunity agreements:

Q: And in your immunity deal, it says you need to testify truthfully, correct?

A. Yes.

Q. And that was part of our interview as well, truthfully, correct?

A. Yes.

Q. I want to talk about that word truthfully for a second. You told them what happened, right?

A. Yes.

Q. So from his perspective, you told him the truth, correct?

A. Yes.

PROSECUTOR: Objection. Calls for speculation.

THE COURT: Sustained.

Q. Your understanding of the immunity deal is that you had to testify to the same thing you told him in that meeting, correct?

A. Yes.

Q. So if you changed your story from that meeting, you might not get immunity?

A. Yes.

Q. So the deal says testify truthfully. Would it be fair to say in order to get immunity and not face criminal charges, you had to testify consistently with what you told them?

A. Yes.

RP (Dec. 16, 2010) at 976.

During re-cross, Veteta-Contreras's counsel again questioned Monetti at length about the immunity agreements. These questions focused on the existence of two agreements, one of which had just been signed the previous day.

During closing remarks, the prosecutor neither discussed Monetti's testimony in detail nor mentioned the immunity agreements. Martinez's counsel argued that Garcia, Barrera, and Monetti "had much more to do with these events than they're letting on" and "kn[ew] a lot more about what happened than they're letting on." RP (Jan. 3, 2011) at 79, 81. He called Monetti "an unreliable witness" and suggested that Monetti was exaggerating how drunk he was on the night in question in order to provide an "excuse for not remembering certain details." RP (Jan. 3, 2011) at 82. He stated that Monetti threw his wallet "[b]ecause he had $40 in it that he had taken in a robbery." RP (Jan. 3, 2011) at 83. He also reminded the jury that Monetti had hired a lawyer and obtained immunity. He concluded that Martinez was misidentified and argued, "The State] got the wrong guy." RP (Jan. 3, 2011) at 92.

Veteta-Contreras's counsel argued in closing that Monetti had committed the crime and matched the description of the robber. He cast Monetti's testimony about Veteta-Contreras hiding the machete as "implausible on its face, " stating, "The State didn't even mention it in their closing. I'm not even sure if they believed it anymore." RP (Jan. 3, 2011) at 120. He argued, "Monetti's testimony was full of lies. His actions that night are totally consistent with someone who robbed two people." RP (Jan. 3, 2011) at 124. Veteta-Contreras's counsel discussed the immunity agreements, told the jury they were in evidence, and urged the jury to read them. He reminded the jury that Monetti had insisted on immunity and asked the jury, "Why would he need immunity if he wasn't involved at all?" RP (Jan. 3, 2011) at 124.

In rebuttal, the prosecutor addressed defense counsel's comments about Monetti:

My case isn't resting on Martin Monetti. I mean, you guys saw the guy up there. He's a clown. He doesn't come off as a machete-wielding Mara Salvatrucha, but he's also not God's gift to science. I mean, the guy wasn't --well, I should tread a little (inaudible). But did he appear on the stand like he had the presence of mind to forge this level of a sophisticated false identification case? To somehow pin it on these two fellows?

RP (Jan. 3, 2011) at 132-33. The prosecutor argued that none of the witnesses identified Monetti as one of the robbers. He also responded briefly to the immunity issue:

[PROSECUTOR]: Whatever [Monetti] was doing it wasn't great. It's not a great taste in my mouth to give the guy immunity, but what are we going to charge him with? Being a drunken idiot?

[MARTINEZ'S COUNSEL]: Objection, Your Honor. Testifying.

THE COURT: Overruled.

[PROSECUTOR]: Are we going to charge [Monetti] with being stupid? Charge him with hanging out? Charge him with lying about how many feet he was away? No. We charge the people -- well, there's evidence that [Veteta-Contreras is] the one that held the machete, and that evidence is everybody that saw him holding the machete.

RP (Jan. 3, 2011) at 137. B. Analysis

1. Trial Court's Admission of Immunity Agreements

For the first time on appeal, Veteta-Contreras and Martinez argue that the immunity agreements contain improper opinion testimony—the prosecutor's statements that he did not believe Monetti played a criminal role in the robberies. We review decisions regarding the admissibility of evidence for abuse of discretion. State v. Grant, 83 Wn.App. 98, 105, 920 P.2d 609 (1991).

To raise an issue for the first time on appeal, Veteta-Contreras and Martinez must show that the issue involves a "manifest error affecting a constitutional right." RAP 2.5(a)(3); State v. Scott, 110 Wn.2d 682, 684, 757 P.2d 492 (1988). Our courts have addressed this standard as it pertains to admissibility of witness opinion testimony regarding credibility of victims. In State v. Kirkman, 159 Wn.2d 918, 927-34, 155 P.3d 125 (2007), the defendants claimed for the first time on appeal that testimony by detectives and a physician constituted improper opinion evidence regarding victim credibility. The court held that the testimony was properly admitted. Kirkman, 159 Wn.2d at 927-34. The court explained,

Appellate courts will not approve a party's failure to object at trial that could identify error which the trial court might correct (through striking the testimony and/or curative jury instruction). Failure to object deprives the trial court of this opportunity to prevent or cure the error. The decision not to object is often tactical. If raised on appeal only after losing at trial, a retrial may be required with substantial consequences.

"Manifest" in RAP 2.5(a)(3) requires a showing of actual prejudice. "Essential to this determination is a plausible showing by the defendant that the asserted error had practical and identifiable consequences in the trial of the case." This reading of "manifest" is consistent with [State v.] McFarland['s 127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995). McFarland's holding that exceptions to RAP 2.5(a) are to be construed narrowly. If the trial record is insufficient to determine the merits of the constitutional claim, the error is not manifest and review is not warranted.

Kirkman, 159 Wn.2d at 935 (some citations omitted) (quoting State v. WWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257 (1999)). In light of this standard, the court further explained the defendant's burden in showing manifest error:

Admission of witness opinion testimony on an ultimate fact, without objection, is not automatically reviewable as a "manifest" constitutional error. "Manifest error" requires a nearly explicit statement by the witness that the witness believed the accusing victim.

Kirkman, 159 Wn.2d at 936. The court also addressed the "actual prejudice" required to raise an issue for the first time on appeal and noted that the defense chose not to object to the testimony as a matter of strategy:

It also appears from the respective records that defense counsel for both Kirkman and Candia chose not to object to the testimony for tactical reasons. Kirkman's defense counsel had determined to introduce other testimony of A.D.'s reputation for truthfulness. In [State v.] Candia, [noted at 128 Wn.App. 1053, 2005 WL 1753622, at *8, ] some of the testimony was helpful to defendant, as the Court of Appeals conceded, stating that Dr. Stirling's testimony that it was unlikely the defendant could actually penetrate C.M.D. was "favorable to Candia." Candia now seeks to appeal the admission of a portion of testimony "which [he] obviously wanted to use in challenging his accuser's credibility."

The record in each case also establishes that each jury received specific instructions that they were the sole triers of fact and the sole deciders of the credibility of witnesses. Jury instruction 1 states that jurors "are the sole judges of the credibility of the witnesses and of what weight is to be given to the testimony of each." Jury instruction 6 states that jurors "are not bound" by expert witness opinions, but "determin[e] the credibility and weight to be given such opinion evidence." Jurors are presumed to follow the court's instructions. This court has even found such instructions relevant (and curative) in claims of judicial comment on the evidence.

Kirkman, 159 Wn.2d at 937 (third alteration in original) (some citations omitted).

In contrast, the court in State v. Montgomery, 163 Wn.2d 577, 183 P.3d 267 (2008), found certain opinion testimony clearly improper. There, the State elicited testimony from several witnesses, including a detective and a chemist, who opined about Montgomery's guilt and specifically testified that Montgomery met the crime's intent requirement. Montgomery, 163 Wn.2d at 587-89. Montgomery argued for the first time on appeal that the admission of the testimony constituted manifest error affecting a constitutional right. Montgomery, 163 Wn.2d at 588-95. Our Supreme Court agreed that the testimony "amounted to improper opinions on guilt" and "went to the core issue and the only disputed element, Montgomery's intent." Montgomery, 163 Wn.2d at 594. But the court held that Montgomery failed to establish the necessary prejudice because the jury was properly instructed on credibility:

[W]e have found constitutional error to be manifest only when the error caused actual prejudice or practical and identifiable consequences. Kirkman, 159 Wn.2d at 934-35.

Important to the determination of whether opinion testimony prejudices the defendant is whether the jury was properly instructed. See id. at 937, 155 P.3d 125. In Kirkman, this court concluded there was no prejudice in large part because, despite the allegedly improper opinion testimony on witness credibility, the jury was properly instructed that jurors "'are the sole judges of the credibility of witnesses, '" and that jurors "'are not bound'" by expert witness opinions. Id. (quoting clerk's papers). Virtually identical instructions were given in this case. RP at 224, 226. There was no written jury inquiry or other evidence that the jury was unfairly influenced, and we should presume the jury followed the court's instructions absent evidence to the contrary. See Kirkman, 159 Wn.2d at 928.

Montgomery, 163 Wn.2d at 595-96.

We applied Montgomery and Kirkman in State v. Curtiss, 161 Wn.App. 673, 697-98, 250 P.3d 496, review denied, 172 Wn.2d 1012 (2011), to conclude that improper opinion testimony was not reversible error where the trial court properly instructed the jury that it was the sole judge of witness credibility and no evidence indicated the jury was unfairly influenced, thus indicating no unfair prejudice resulted. See also State v. Haq, 166 Wn.App. 221, 266-67, 268 P.3d 997, review denied, 174 Wn.2d 1004 (2012), (finding no manifest error where defendant failed to object below, the testimony was not an explicit or nearly explicit opinion on his guilt, and the testimony was not so prejudicial in the context of the entire trial as to create practical or identifiable consequences).

To the extent Veteta-Contreras and Martinez claim the immunity agreements constituted improper opinion testimony, this argument fails. Under the decisions discussed above, they may not challenge improper opinion testimony for the first time on appeal when the trial court accurately instructs the jury regarding its role in judging witness credibility, absent some other evidence of prejudice.²⁶ Here, the trial court properly instructed the jurors on witness credibility:

26 Martinez cites State v. King, 167 Wn.2d 324, 219 P.3d 642 (2009) for the proposition that challenges to immunity agreements may be raised for the first time on appeal. But King did not decide whether the defendant could raise his challenge to opinion evidence for the first time on appeal. Rather, the court held that the Court of Appeals commissioner "erred by foreclosing review simply because King's attorney did not object at trial and failing to mention, let alone engage in, a manifest constitutional error analysis." King, 167 Wn.2d at 332. Citing Kirkman, the court explained that the commissioner should have fully analyzed whether the opinion testimony constituted manifest constitutional error. King, 167 Wn.2d at 332-33. That point is true and we perform the manifest error analysis here. King does not stand for the proposition that a defendant may always raise a challenge to opinion testimony for the first time on appeal—rather, he must demonstrate manifest constitutional error before his challenge will be considered.

You are the sole judges of the credibility of the witnesses and of what weight is to be given to the testimony of each. In considering the testimony of any witness, you may take into account the opportunity and ability of the witness to observe, the witness's memory and manner while testifying, any interest, bias or prejudice the witness may have, the reasonableness of the testimony of the witness considered in light of all the evidence, and any other factors that bear on believability and weight.

The court also instructed the jury regarding counsels' arguments: "The attorneys' remarks, statements and arguments are intended to help you understand the evidence and apply the law. They are not evidence. Disregard any remark, statement or argument that is not supported by the evidence or the law as stated by the court." We presume jurors follow instructions, and Veteta-Contreras and Martinez establish no reasonable probability they did not in this case. State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994).

The immunity agreements' disputed provisions contain no explicit or near explicit opinion on Veteta-Contreras's or Martinez's guilt as in Montgomery and Curtiss. The agreements state that after he reviewed the evidence and interviewed witnesses, the prosecutor was offering immunity because he believed Monetti played no criminal role in the robberies. The prosecutor made no argument at trial that his professional opinion regarding Monetti's credibility or involvement should carry weight with the jury. He offered the immunity agreements (1) in direct response to defense counsel's attack on Monetti's credibility in opening remarks and during Officer Hairston's testimony and (2) after defense counsel told the jury that Monetti had been granted immunity.²⁷Counsel for Martinez and Veteta-Contreras stated they had no objection to admission of the agreements. They establish no manifest constitutional error justifying our review of this issue for the first time on appeal because (1) the jury received proper instructions on witness credibility and (2) the agreements contain no explicit or near explicit opinion on Veteta Contreras's or Martinez's guilt.

27 As discussed below, defense counsel's failure to object was likely tactical because defense counsel used the immunity agreements to undermine Monetti's truthfulness and credibility.

2. Prosecutorial Misconduct

Veteta-Contreras and Martinez argue that the prosecutor committed misconduct by vouching for Monetti's credibility either in (1) seeking to admit the immunity agreements or (2) discussing the immunity agreements during closing remarks. Specifically, Veteta-Contreras argues that by seeking to admit the immunity agreements, the prosecutor improperly expressed his "personal opinion that Monetti played no criminal role in the robberies." Br. of Appellant at 49. Martinez claims that during closing argument, the prosecutor "expressly argued that he could not charge Monetti . . . with anything because he had not committed any crime" and "argue[d] that his office only charges the people who are guilty" and expressed through the immunity agreements his "opinion that Monetti was innocent."²⁸ Br. of Appellant at 68, 71-72. Veteta-Contreras did not object to either the admission of the immunity agreements or the prosecutor's comments during rebuttal closing remarks. Martinez did not object to admission of the agreements but objected during the prosecutor's rebuttal remarks on the basis that the prosecutor was "testifying." RP (Jan. 3, 2011) at 137.

28 Veteta-Contreras adopts Martinez's arguments on this issue.

Prosecutorial misconduct requires a showing that the prosecutor's conduct was both improper and prejudicial in the context of the entire record and circumstances at trial. State v. Hughes, 118 Wn.App. 713, 727, 77 P.3d 681 (2003). A defendant alleging prosecutorial misconduct bears the burden of first establishing "the prosecutor's improper conduct and, second, its prejudicial effect." State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003).²⁹ We review a prosecutor's comments during closing argument in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions. State v. Boehning, 127 Wn.App. 511, 519, 111 P.3d 899 (2005). Where the defense fails to timely object to an allegedly improper remark, the error is deemed waived unless the remark is "so flagrant and ill intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994).

29 In this context, "prejudicial effect" means that there was a "substantial likelihood" that the challenged comments affected the verdict. State v. Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984).

"Improper vouching generally occurs (1) if the prosecutor expresses his or her personal belief as to the veracity of the witness or (2) if the prosecutor indicates that evidence not presented at trial supports the witness's testimony." State v. Ish, 170 Wn.2d 189, 196, 241 P.3d 389 (2010). But "a prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and may freely comment on witness credibility based on the evidence." State v. Lewis, 156 Wn.App. 230, 240, 233 P.3d 891 (2010). The prosecutor has especially wide latitude when rebutting an issue the defendant raised in closing argument. Lewis, 156 Wn.App. at 240. Accordingly, closing argument does not constitute improper vouching for witness credibility unless it is clear that the prosecutor is not arguing an inference from the evidence but, instead, is expressing a personal opinion about credibility. State v. Warren, 165 Wn.App. 17, 30, 195 P.3d 940 (2008).

Veteta-Contreras acknowledges that he failed to object to the prosecutor's introduction of the immunity agreements or arguments during closing rebuttal remarks. Citing Ish, he argues that the prosecutor stated a personal opinion about Monetti's credibility in the immunity agreement and that no curative instruction would have cured the resulting prejudice. In Ish, the parties argued over admissibility of a plea agreement between the State and Ish's cellmate. Ish, 170 Wn.2d at 193. The agreement contained several statements indicating that the cellmate "agree[d] to provide 'a complete and truthful statement, ' to 'testify truthfully, ' and to 'have told the truth, to the best of his knowledge.'" Ish, 170 Wn.2d at 193. Over defense objection, the trial court allowed the State to establish the terms of the agreement during direct-examination, including its requirement that the cellmate tell the truth while testifying. Ish, 170 Wn.2d at 193-94. On appeal, Ish argued that the prosecutor committed misconduct by vouching for the cellmate's credibility when she referenced his agreement to testify truthfully. Ish, 170 Wn.2d at 195. Our Supreme Court held that the trial court erred in permitting the State to ask Ish's cellmate about his promise to testify truthfully during direct examination before the cellmate's credibility had been attacked:

If the agreement contains provisions requiring the witness to give truthful testimony, the State is entitled to point out this fact on redirect if the defendant has previously attacked the witness's credibility. Courts should carefully scrutinize such agreements and exclude language that is not relevant to the defendant's impeachment evidence or tends to vouch for the witness's testimony. While the State may ask the witness about the terms of the agreement on redirect once the defendant has opened the door, prosecutors must not be allowed to comment on the evidence, or reference facts outside of the record, that implies they are able to independently verify that the witness is in fact complying with the agreement. And absent an attack on the witness's credibility by the defense, such references should be excluded even on redirect examination.

Here, Ish argues that the State should not have been allowed to ask Otterson about his promise to testify truthfully during direct examination. We agree. On direct review, where the credibility of the witness had not previously been attacked, referencing Otterson's out-of-court promise to testify truthfully was irrelevant and had the potential to prejudice the defendant by placing the prestige of the State behind Otterson's testimony. We hold that the trial court abused its discretion by denying Ish's pretrial motion to preclude the State from referencing the portions of Otterson's plea agreement requiring him to testify truthfully before his credibility was attacked by the defense.

Ish, 170 Wn.2d at 199 (footnote omitted). But the court found the error harmless. Ish, 170 Wn.2d at 200. It applied the prosecutorial misconduct test and held that Ish had not shown a substantial likelihood that the misconduct affected the jury's verdict. Ish, 170 Wn.2d at 200-01. Citing the evidence at trial and the fact that the prosecutor did not dwell on the immunity agreements, the court concluded Ish failed to demonstrate prejudice. Ish, 170 Wn.2d at 200-01.

Here, unlike in Ish, Veteta-Contreras did not object at trial. He acknowledges his burden to show that any claimed error was so flagrant and ill intentioned that a curative instruction would not neutralize the prejudice. But he simply asserts that the error could not have been cured by an instruction and fails to explain how the prosecutor's action in introducing or referencing the agreements was flagrant and ill intentioned. Veteta-Contreras could have objected at any time prior to deliberations but failed to do so. An instruction would have cured any claimed error. Because the challenged statements were neither flagrant nor incurable, Veteta-Contreras's claim fails.

As to Martinez's prosecutorial misconduct claim, the record shows that during rebuttal the prosecutor was responding to the defense's closing remarks. As discussed above, both defense counsel argued in closing that Monetti was involved in the crimes and lied in his testimony. Both defense counsel referenced the immunity agreements and used them to suggest that the jury should question Monetti's credibility, thus inviting the prosecutor's discussion of Monetti and the immunity agreements. The prosecutor argued that the State's case did not depend on Monetti's testimony. Nothing in the record supports Martinez's claim that the prosecutor argued that his office charges only people who are guilty. The prosecutor's argument derived from the evidence and properly responded to the defense's closing arguments. See RP (Jan. 3, 2011) at 137-38; Warren, 165 Wn.App. at 30 (closing argument does not constitute improper vouching for witness credibility unless it is clear that the prosecutor is not arguing an inference from the evidence but, instead, is expressing a personal opinion about credibility). Martinez fails to establish misconduct. Further, he fails to show prejudice given the other evidence of guilt in this case. This claim fails.

3. Ineffective Assistance of Counsel

Finally, Veteta-Contreras claims deficient performance because his counsel failed to request redaction of the immunity agreements.³⁰ To prevail on a claim of ineffective assistance, a defendant must show both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel's performance is deficient if it fell below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). Our scrutiny of defense counsel's performance is highly deferential, and it employs a strong presumption of reasonableness. Strickland, 466 U.S. at 689; State v. McFarland, 127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995). "Where a claim of ineffective assistance of counsel rests on trial counsel's failure to object, a defendant must show that an objection would likely have been sustained." State v. Fortun-Cebada, 158 Wn.App. 158, 172, 241 P.3d 800 (2010). To establish prejudice, a defendant must show a reasonable probability that the outcome of the trial would have been different absent counsel's deficient performance. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). Failure on either prong of the test defeats a claim of ineffective assistance of counsel. Strickland, 466 U.S. at 697. "There is no claim for ineffective assistance of counsel when the challenged action goes to a legitimate trial strategy or tactic. The decision whether to object is a classic example of trial tactics, and only in egregious circumstances will the failure to object constitute ineffective assistance of counsel." State v. Kolesnik, 146 Wn.App. 790, 801, 192 P.3d 937 (2008).

30 We have addressed whether statements in immunity agreements should be redacted before admitting the agreements. In State v. Green, 119 Wn.App. 15, 21, 79 P.3d 460 (2003), witness Cole entered into an immunity agreement with the State to testify at Green's trial. The agreement required Cole to testify truthfully. Green, 119 Wn.App. at 21. At trial, Green objected to admission of the agreement but did not request redaction. Green, 119 Wn.App. at 22. The court ruled the agreement admissible as an exhibit in the State's case. Green, 119 Wn.App. at 22. On appeal, Green challenged the admission of the agreement and argued it contained "irrelevant and prejudicial provisions and language vouching for Cole's credibility." Green, 119 Wn.App. at 22-23. We noted, "Evidence is not admissible merely because it is contained in an agreement; references to irrelevant or prejudicial matters should be redacted." Green, 119 Wn.App. at 24. We held:

Even if we assume without deciding that counsel's failure to request redaction constitutes deficient performance, Veteta-Contreras fails to show a reasonable probability that the result of the proceeding would have been different given the overwhelming evidence of Veteta-Contreras's guilt. In addition to the evidence summarized above, the record shows that in an unchallenged photomontage, Flores-Cruz, Lopez-Pando, and Barrera selected Veteta-Contreras's photo and identified him as the man with the machete. Duran-Acosta testified that Monetti told him he should just give Veteta-Contreras five dollars. All the civilian witnesses identified Martinez and Veteta-Contreras as the men who committed the charged crimes. Martinez and Veteta-Contreras generally matched the description of the robbers provided by witnesses. Witnesses recognized Veteta-Contreras's Salvadoran accent. Other evidence indicated Veteta-Contreras was from El Salvador. Because Veteta-Contreras does not establish that the alleged deficiency prejudiced him, his claim fails.

IV. Tattoo Evidence

Martinez claims the trial court erred when it admitted a photograph depicting tattoos on his arms and allowed Duran-Acosta to testify that he recognized some of the tattoos. The State contends that (1) the constitutional standards governing identification of persons do not extend to tattoos, (2) Martinez nevertheless fails to meet those standards, and (3) any error was harmless.

A. Relevant Facts

During the attempted robbery, Duran-Acosta noticed that Martinez had tattoos on his arms. He reported this observation to the police before seeing Martinez again and identifying him at the scene. That night Duran-Acosta identified Martinez as the man with the gun.

At trial, Duran-Acosta described one of the men who attempted to rob him—"a taller one, white T-shirt, had tattoos on his arm, shorts, blue shorts." RP (Dec. 15, 2010) at 694-95. He identified Martinez in court as that man.

Later, the prosecutor asked Duran-Acosta a series of questions about Martinez's tattoos and showed him exhibit 28, consisting of two close-up photographs of the tattoos. Martinez's counsel did not object to the questions.

During a break in the proceedings, Martinez's counsel objected to the prosecutor offering more photographs of the tattoos into evidence. Counsel noted that the prosecutor had marked for identification several more photographs and complained that they showed Martinez was in custody and that the prosecutor was conducting "a show-up ID with the tattoos." RP (Dec. 15, 2010) at 715. The prosecutor said he wanted to use another photograph showing the tattoo with flames curling on the upper part of the arm. The judge reviewed the photograph and asked defense counsel to explain his "show-up" objection. RP (Dec. 15, 2010) at 717.

MR. FLORA: This has all the features of a show-up ID wherein (inaudible) is much more specific. We don't have any information from this witness about what the tattoos looked like, and then he's shown tattoos of -- that are obviously on Mr. Martinez and asked are these the tattoos that you remember?

THE COURT: And the problem with that is what?

MR. FLORA: It's a show-up ID. It's impermissibly suggestive. Oh, yes, here's the tattoos that I remember attached to the arm and body of the person sitting here in the courtroom.

THE COURT: Well, it's clearly suggestive, but I don't see what's impermissible about it, so I'll allow the State to proceed that way.

RP (Dec. 15, 2010) at 717-18.

When proceedings resumed, the prosecutor asked a few more questions and the court admitted exhibit 30—a photograph of Martinez and the tattoos on his arms.

B. Analysis

We review the admission of photographic identification evidence for an abuse of discretion. State v. Kinard, 109 Wn.App. 428, 432, 36 P.3d 573 (2001). A trial court abuses its discretion when its decision is based upon untenable grounds or reasons. Stansfield v. Douglas County, 107 Wn.App. 20, 29, 26 P.3d 935 (2001).

A photographic identification procedure violates due process if it is "so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification." State v. Linares, 98 Wn.App. 397, 401, 989 P.2d 591 (1999). To establish a due process violation, a defendant must first show that the identification procedure is suggestive. Linares, 98 Wn.App. at 401. If the defendant satisfies this threshold burden, the court then assesses whether the procedure created a substantial likelihood of irreparable misidentification. Linares, 98 Wn.App. at 401. Even where a procedure is suggestive, identification testimony will be admitted where the totality of the circumstances indicates the identification was reliable. In making the reliability determination, courts consider five factors: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness's degree of attention, (3) the accuracy of the witness's prior description of the criminal, (4) the level of certainty demonstrated at the identification, and (5) the time between the crime and the identification. Linares, 98 Wn.App. at 401; Neil v. Biggers, 409 U.S. 188, 198-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

Citing cases involving identification of clothing, the State argues that the constitutional standard governing identification of persons does not extend to the identification of tattoos on persons.³¹ We need not decide this issue because even assuming the constitutional standard applies, the trial court did not abuse its discretion in admitting the testimony.

31 The parties agree no Washington case has addressed this issue. "We are . . . mindful of the well-established policy that if, in order to resolve an issue before us, it is not necessary to reach a constitutional question, an appellate court should decline to do so." City of Seattle v. Williams, 128 Wn.2d 341, 347, 908 P.2d 359 (1995).

A suggestive procedure is "one that directs undue attention to a particular photo." State v. Eacret, 94 Wn.App. 282, 283, 971 P.2d 109 (1999). The parties dispute whether the use of a single photograph is impermissibly suggestive as a matter of law. Even assuming the procedure here was suggestive, the totality of the circumstances indicates that the procedure did not "give rise to a substantial likelihood of irreparable misidentification." Linares, 98 Wn.App. at 401. Duran-Acosta testified that during the attempted robbery, he was looking at Martinez through the corner of his eye and that Martinez came within one foot of him. Duran-Acosta told the police that one of the robbers had tattoos on his arms. He described this individual as tall, thin, wearing a white shirt, and with a gun in his waistband—and this description was confirmed by several other witnesses as previously discussed. Approximately 5 to 10 minutes after the attempted robbery, Duran-Acosta identified Martinez at the scene as the man with the gun.³² Duran-Acosta positively identified Martinez at trial as one of the robbers before the prosecutor showed him the tattoo photographs. Considering the reliability factors set forth above, Duran-Acosta's in-court identification of a portion of Martinez's tattoos created no substantial likelihood of misidentification. The trial court properly admitted the tattoo evidence.³³

32 Though at first Duran-Acosta seemed hesitant, he confirmed his identification when Officer Schweiger asked him if he was sure.

33 Martinez argues that the trial court abused its discretion because it did not specifically analyze the five reliability factors described above. But Martinez cites to no authority requiring the court to analyze these factors on the record. And even if such a requirement exists, admission of the testimony may be upheld as harmless error where a sufficient record exists for the reviewing court to determine that had the trial court properly weighed the evidence, it would have admitted it. See State v. Carleton, 82 Wn.App. 680, 686, 919 P.2d 128 (1996) (analyzing trial court's failure to properly "weigh prejudice on the record under ER 404(b)" and noting that such failure is harmless error if "the record is sufficient for the reviewing court to determine that the trial court, if it had considered the relative weight of probative value and prejudice, would still have admitted the evidence"). Here, the record sufficiently indicates that had the trial court specifically analyzed the factors on the record, it would still have admitted the evidence.

V. To-Convict Instruction for Count I

For the first time on appeal, Martinez and Veteta-Contreras argue that the "to convict" instruction for count I, instructions 14 and 15, included an uncharged alternative means. The State responds that the invited error doctrine bars Veteta-Contreras and Martinez from challenging the instructions on appeal because they joined the State in proposing the to-convict instructions below.

A. Relevant Facts

In count I, the State charged Veteta-Contreras and Martinez with first degree robbery of Flores-Cruz. The amended information alleged that Veteta-Contreras and Martinez

did unlawfully and with intent to commit theft take personal property of another . . . by the use or threatened use of immediate force, violence and fear of injury to such person or his property . . . and in the commission of and in immediate flight therefrom, the defendants displayed what appeared to be a deadly weapon, to-wit: a machete.

The State also charged Veteta-Contreras and Martinez with a deadly weapon sentencing enhancement on Count I, based on the machete.

During a pretrial motions hearing, the trial court asked the defense to explain its position on jury instructions. Both defense counsel stated that they preferred not to submit a complete packet of jury instructions if they agreed with the State's proposed instructions. The trial court agreed with this procedure.

Following trial, the court provided draft instructions to both parties. Both defense counsel objected to the court's failure to include the defense's proposed lesser included offense instructions. The prosecutor then stated, "I just want the record, then, to reflect that aside from the exceptions made by Defense, Defense is joining in the State's proposed instructions and is satisfied with all the instructions submitted by the Court." RP (Dec. 28, 2010) at 1280. Both defense counsel agreed. The to-convict instruction for count I stated:

To convict the defendant . . . of the crime of robbery in the first degree, as charged in count I, each of the following six elements of the crime must be proved beyond a reasonable doubt:

1. That on or about 17 April 2010, the defendant unlawfully took personal property from the person or in the presence of Walter Flores-Cruz;

2. That the defendant intended to commit theft of the property;

3. That the taking was against the person's will by the defendant's use or threatened use of immediate force, violence or fear of injury to that person or to the person or property of another;

4. That force or fear was used by the defendant to obtain or retain possession of the property;

5. That in the commission of these acts or in immediate flight therefrom, the defendant displayed what appeared to be a firearm or other deadly weapon; and

6. That these acts occurred in the State of Washington.

Instruction 14 (disputed language emphasized). During closing argument, the prosecutor discussed these elements and identified the machete as the deadly weapon. The jury convicted Veteta-Contreras and Martinez as charged and found by special verdict that they were armed with a machete and the machete was a deadly weapon.

B. Analysis

In his opening brief, Martinez argues that the to-convict instruction quoted above included the term "firearm" and that the display of an apparent firearm is a distinct alternative means from the display of an apparent "other deadly weapon." But in his reply, Martinez acknowledges that his counsel agreed to the jury instructions below and concedes that the invited error doctrine bars him from challenging instruction 14 on direct appeal. Veteta-Contreras does not reply to the State's invited error argument. We conclude that under the doctrine of invited error, Veteta-Contreras and Martinez may not challenge jury instructions they proposed. The invited error doctrine "prohibits a party from 'setting up error in the trial court and then complaining of it on appeal.'" State v. Armstrong, 69 Wn.App. 430, 434, 848 P.2d 1322 (1993) (quoting State v. Young, 63 Wn.App. 324, 330, 818 P.2d 1375 (1991)). Under the invited error doctrine, "even where constitutional rights are involved, we are precluded from reviewing jury instructions when the defendant has proposed an instruction or agreed to its wording." State v. Winings, 126 Wn.App. 75, 89, 107 P.3d 141 (2005). Here, both defense counsel expressed affirmative agreement to the instructions by joining in the State's proposed instructions. Martinez and Veteta-Contreras cannot challenge the jury instruction that they proposed.

Even on the merits, ³⁴ Veteta-Contreras's and Martinez's challenge to the "to convict" instruction fails. They argue that for first degree robbery under RCW 9A.56.200, the display of an apparent "firearm" is a distinct alternative means from the display of an apparent "other deadly weapon." Martinez claims, "Since [he] was never charged with first degree robbery of [Flores-]Cruz based upon the display of a firearm, it was error to permit the jury to convict him based on that uncharged theory." Br. of Appellant at 83. But neither Veteta-Contreras nor Martinez analyzes the first degree robbery statute or cites any authority supporting this "alternative means within alternative means" theory.³⁵ Resp't's Br. at 81. See State v. Logan, 102 Wn.App. 907, 911 n.1, 10 P.3d 504 (2000) ("Where no authorities are cited in support of a proposition, the court is not required to search out authorities, but may assume that counsel, after diligent search, has found none.") (quoting DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962)). And our courts have rejected similar "means within means" arguments. See In re Pers. Restraint of Jeffries, 110 Wn.2d 326, 339, 752 P.2d 1338 (1988) (rejecting defendant's "means within means" argument regarding statutory aggravating circumstances, noting that such a claim "raises the spectre of a myriad of instructions and verdict forms whenever a criminal statute contains several instances of the use of the word 'or.'"); State v. Laico, 97 Wn.App. 759, 764, 987 P.2d 638 (1999) (holding that the three alternative definitions of "great bodily harm" in RCW 9A.04.110(4)(c) were not alternative means of committing first degree assault); State v. Al-Hamdani, 109 Wn.App. 599, 603-07, 36 P.3d 1103 (2001) (2003) (rejecting defendant's claim that a subsection of the second degree rape statute created two alternative means). We reject this argument.³⁶

34 We address the merits here because Veteta-Contreras's and Martinez's sufficiency of the evidence argument, addressed below, depends in part on their challenge to the to-convict instruction.

35 RCW 9A.56.200 defines first degree robbery:

36 And even if the statute does create alternative "means within means, " any error in the court's instruction for count I was clearly harmless. The special verdict shows that the jury unanimously found beyond a reasonable doubt that with respect to count I, Veteta-Contreras and Martinez were armed with a machete and the machete was a deadly weapon. The undisputed testimony was that no firearm was displayed during this robbery, and the prosecutor never argued otherwise. Veteta-Contreras and Martinez suffered no prejudice. See Nicholas, 55 Wn.App. at 273 (holding that error in instructing on uncharged alternative means of committing first degree robbery was harmless where jury found by special verdict that the defendant was armed with a deadly weapon—the charged means of committing the crime).

VI. Veteta-Contreras's Challenge to Robbery Instruction

Veteta-Contreras argues that his first degree robbery and attempted first degree robbery convictions must be reversed because the instruction defining the term "robbery" (instruction 13) included the uncharged alternative means that "the defendant was 'armed with a deadly weapon.'" Br. of Appellant at 32 (quoting Clerk's Papers at 125). Acknowledging that the invited error doctrine precludes him from challenging an instruction he joined in proposing below, he raises this issue by claiming, "[D]efense counsel was ineffective in proposing the defective instruction." Br. of Appellant at 37. The State responds that Veteta-Contreras fails to establish a reasonable probability that the trial results would have been different if this alternative means was not included in the instruction.³⁷

37 Veteta-Contreras provides no reply to the State's argument on this issue. See Reply Br. of Appellant.

A. Relevant Facts

In counts I and II, the State charged Veteta-Contreras with first degree robbery of Flores-Cruz and attempted first degree robbery of Duran-Acosta. For both counts, the State alleged the alternative means specified in RCW 9A.56.200(a)(a)(ii): that Veteta-Contreras "displayed what appeared to be a deadly weapon, to-wit: a machete." The to-convict instruction for first degree robbery informed the jury it had to find beyond a reasonable doubt that "[Veteta-Contreras] displayed what appeared to be a firearm or other deadly weapon." The instruction defining first degree robbery stated, "A person commits the crime of robbery in the first degree when in the commission of a robbery he or she is armed with a deadly weapon or displays what appears to be a firearm or other deadly weapon." Both defense counsel stated satisfaction with this instruction and joined in proposing it.

B. Analysis

Veteta-Contreras now argues that he received ineffective assistance of counsel because his counsel joined in proposing the instruction quoted above. As discussed above, to prevail on a claim of ineffective assistance, a defendant must show both deficient performance and resulting prejudice. Strickland, 466 U.S. at 687. Our scrutiny of defense counsel's performance is highly deferential, and it employs a strong presumption of reasonableness. Strickland, 466 U.S. at 689; McFarland, 127 Wn.2d at 335-36. To establish prejudice, a defendant must show a reasonable probability that the outcome of the trial would have been different absent counsel's deficient performance. Thomas, 109 Wn.2d at 226. Failure on either prong of the test defeats a claim of ineffective assistance of counsel. Strickland, 466 U.S. at 697.

When an offense may be committed by alternative means, it is error to instruct the jury on a means that was not alleged in the information, regardless of the range of evidence admitted at trial. State v. Chino, 117 Wn.App. 531, 540, 72 P.3d 256 (2003); State v. Bray, 52 Wn.App. 30, 34, 756 P.2d 1332 (1988). Such errors are prejudicial "if it is possible that the jury might have convicted the defendant under the uncharged alternative." State v. Doogan, 82 Wn.App. 185, 189, 917 P.2d 155 (1996). Instructing a jury on an uncharged alternative is harmless error when there is no possibility the jury convicted the defendant on the uncharged alternative. State v. Nicholas, 55 Wn.App. 261, 273, 776 P.2d 1385 (1989) (finding harmless error where a special verdict that defendant was "armed with a deadly weapon" removed the possibility that jury convicted on an uncharged alternative means of committing first degree robbery); see also State v. Spiers, 119 Wn.App. 85, 94, 79 P.3d 30 (2003) (finding instructional error harmless where no evidence was presented on an alternative means). An error in instructing on an uncharged means of committing a crime may be harmless if "in subsequent instructions the crime charged was clearly and specifically defined to the jury." State v. Severns, 13 Wn.2d 542, 549, 125 P.2d 659 (1942).

Any error regarding the trial court's definitional instruction for first degree robbery was harmless for several reasons. First, as noted above, the trial court's subsequent "to convict" instruction included only the charged alternative means for committing the crime. Thus, any error was harmless because the court's subsequent instruction clearly defined the crime. Severns, 13 Wn.2d at 549. We presume jurors follow instructions and Veteta-Contreras establishes no reasonable probability that they did not. State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994).

Second, the alternative means at issue here are similar. The charged means requires the State to prove that Veteta-Contreras and Martinez displayed what appeared to be a firearm or other deadly weapon. RCW 9A.56.200(1)(a)(ii). The uncharged alternative means requires proof that they were armed with a deadly weapon. RCW 9A.56.200(1)(a)(i). The evidence supporting the charged and uncharged alternative means was the same—it was only by Veteta-Contreras's and Martinez's display of the deadly weapons that the State could prove they were armed with the weapons. Neither of the two deadly weapons at issue—the firearm or the machete—was recovered, and the only evidence at trial regarding these weapons consisted of witness descriptions of how Veteta-Contreras and Martinez displayed them. No danger exists that the jury convicted Veteta-Contreras of robbery and attempted robbery without finding that he or his accomplice "display[ed] what appear[ed] to be a firearm or other deadly weapon." RCW 9A.56.200(1)(a)(ii).

Finally, although the State did not charge the "armed with a deadly weapon" alternative means, it was required to prove—and the jury in fact found—that Veteta-Contreras and Martinez were armed with deadly weapons because it alleged the deadly weapon and firearm enhancements.³⁸ The State could not prove a violation of the enhancement applicable to Veteta-Contreras without also proving the alternative means. Because any error was harmless, Veteta-Contreras fails to establish prejudice and his ineffective assistance claim fails.³⁹

38 Veteta-Contreras claims the prosecutor invited the jury to convict him based on the uncharged alternative means, noting that the prosecutor discussed the fact that he "possess[ed] a deadly weapon" and argued that a machete was a deadly weapon. Br.. of Appellant at 41-42. But as discussed above, Veteta-Contreras was charged with several deadly weapon enhancements, and to prove those enhancements, the State was required to prove that Veteta-Contreras was actually armed with a deadly weapon.

39 The cases Veteta-Contreras cites are distinguishable. In Doogan, the defendant was charged with second degree promotion of prostitution, which may be committed by two alternative means: profiting from prostitution or advancing prostitution. Doogan, 82 Wn.App. at 187-88; RCW 9A.88.080. The State charged the defendant only with profiting from prostitution, but the trial court's instructions included the uncharged alternative means of advancing prostitution. Doogan, 82 Wn.App. at 188. On appeal, we noted, "The uncharged means (advancing) covers a wider range of activity than the charged means . . . ." Doogan, 82 Wn.App. at 189-90. We held that because "[t]he jury heard evidence of numerous things that [the defendant] did that would satisfy the definition of advancing prostitution even if it did not consider or believe the evidence that she financially participated in the proceeds, " the defendant established the prejudice necessary for an ineffective assistance of counsel claim. Doogan, 82 Wn.App. at 190. Here, unlike in Doogan, there was no basis in the evidence for the jury to find that Veteta-Contreras and Martinez were armed with a deadly weapon without first finding that they displayed what appeared to be a deadly weapon. Unlike in Doogan, there is no reasonable probability that the jury convicted Veteta-Contreras on the uncharged means without ever considering whether, as charged, he displayed what appeared to be a deadly weapon.

VII. Inferior Degree Offense Instructions

Veteta-Contreras and Martinez argue that the trial court erred in failing to instruct on inferior degree offenses. The State responds that the trial court properly declined to give these instructions because the evidence in the case did not support an inference that only the inferior crimes were committed to the exclusion of the charged offenses.

A. Relevant Facts

At trial, Martinez and Veteta-Contreras proposed inferior degree offense instructions. For the first degree robbery and attempted first degree robbery counts, they proposed second degree robbery and attempted second degree robbery instructions. Veteta-Contreras also proposed a fourth degree assault instruction for the second degree assault count. The defense offered brief argument supporting these instructions. Veteta-Contreras's counsel stated:

I think given the lack of production of the weapons, it's a question of credibility of the witnesses for the jury to decide whether they believe -- if there was a robbery, whether there was a weapon involved, and there should be a lesser included of robbery in the second degree . . . . I think it's a factual question for the jury that they could reasonably decide based on their weighing of the evidence by the testimony of the witnesses, so we object to the failure to give those lessers.

RP (Dec. 28, 2010) at 1276-77. Regarding the proposed fourth degree assault instruction, counsel stated:

Mr. Duran[-Acosta] said he was punched as well as hit with a machete, but his back was to the perpetrator. Given that he wasn't cut or bleeding, I think it's reasonable the jury could find that he was only punched and there wasn't a weapon used, which would therefore be a factual basis for the assault four.

RP (Dec. 28, 2010) at 1277. Martinez's counsel offered no additional argument on this issue.

The trial court declined to give the requested inferior degree instructions:

There's no question that an assault four and robbery two and an attempted robbery two are lesser degree offenses of assault two robbery and robbery in the first degree and attempted robbery in the first degree, so that satisfies the legal test. But as I understand it, under State v. Fowler, 114 Wn.2d 59, [785 P.2d 808 (1990), ] which was disapproved on other grounds in State v. Blair, [117 Wn.2d 479, 816 P.2d 718 (1991, )] it's not enough that the jury might simply disbelieve the State's evidence. Some evidence must be presented which affirmatively establishes the defendant's theory on the lesser before an instruction will be given. And here, this seems to fit right in there. There is no affirmative evidence that only the lesser degree offense was submitted. And the only way the jury could get to a lesser offense is if the jury didn't believe the evidence or some of the evidence, which is the test the Supreme Court has given us.

RP (Dec. 28, 2010) at 1278. After this ruling, Martinez's counsel stated, "[J]ust to add, in this case, all the evidence - - there is no weapon. All the evidence is based on eyewitness testimony, but I don't have any more to add to that." RP (Dec. 28, 2010) at 1279.

B. Analysis

We first note that while the Veteta-Contreras and Martinez requested inferior degree instructions below, they assert a new theory in support of their request on appeal. "'Exceptions to the failure of the trial court to give an instruction must clearly apprise the trial judge of the points of law involved. Where the exception and the discussion of it does not do so, points of law or issues involved will not be considered on appeal.'" State v. Fowler, 114 Wn.2d 59, 69, 785 P.2d 808 (1990) (finding that an objection to the assault instruction proposed by the court cannot be raised for the first time on appeal when the objection below did not involve the potential vagueness or overbreadth of the court's definition of the term "unlawful force") (quoting City of Seattle v. Rainwater, 86 Wn.2d 567, 571, 546 P.2d 450 (1976))), overruled on other grounds, State v. Blair, 117 Wn.2d 479, 816 P.2d 718 (1991); see also State v. Scott, 110 Wn.2d 682, 689, 757 P.2d 492 (1988). If a defendant objects to an instruction on one theory at trial, he may not then make a challenge on appeal based on a new theory. State v. Harris, 62 Wn.2d 858, 872-73, 385 P.2d 18 (1963); State v. Owen, 24 Wn.App. 130, 133-34, 600 P.2d 625 (1979). These well-settled rules apply to a request for inferior degree instructions. State v. Brown, 36 Wn.App. 166, 672 P.2d 1268 (1983).⁴⁰

40 In Brown, the defendant argued that the trial court erred by failing to provide a lesser included offense instruction. Brown, 36 Wn.App. at 170. We held that he failed to properly preserve the issue for appeal:

We may decline to consider Veteta-Contreras's and Martinez's new argument on appeal. They argued at trial that their proposed inferior degree instructions were warranted because the weapons were never recovered and, thus, the jury could find that no weapons were used. The trial court rejected this argument because all the testifying witnesses indicated Veteta-Contreras and Martinez displayed weapons. They ignore that argument on appeal in favor of new arguments: (1) the jury could have concluded that a cable or club, rather than a machete, was involved or (2) the machete did not qualify under the statutory definition of a "deadly weapon." The trial court never had the opportunity to consider these arguments. Because Martinez raises a constitutional challenge regarding the test for determining a defendant's entitlement to inferior degree instructions, we address the merits.

We review for abuse of discretion a trial court's decision to give an instruction that rests on a factual determination. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998). When determining whether the evidence was sufficient to support giving an instruction, we view the evidence in the light most favorable to the party requesting the instruction, here, Veteta-Contreras and Martinez. State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000).

A jury instruction on an inferior degree offense is appropriate when: (1) the statutes for both the charged offense and the proposed inferior degree offense proscribe but one offense, (2) the information charges an offense that is divided into degrees and the proposed offense is an inferior degree of the charged offense, and (3) there is evidence that the defendant committed only the inferior offense.⁴¹ Fernandez-Medina, 141 Wn.2d at 454. Under the factual component of this test, "the evidence must raise an inference that only the lesser included/inferior degree offense was committed to the exclusion of the charged offense." Fernandez-Medina, 141 Wn.2d at 455.

41 Only the third prong of this analysis (the factual component) is at issue here.

The issue here is whether the evidence supports an inference that Veteta-Contreras and Martinez committed only the inferior degree offenses to the exclusion of the greater offenses. Fernandez-Medina, 141 Wn.2d 448, 461, 6 P.3d 1150 (2000). "It is not enough that the jury might simply disbelieve the State's evidence. Instead, some evidence must be presented which affirmatively establishes the defendant's theory on the lesser included offense before an instruction will be given." Fowler, 114 Wn.2d at 67; see also Fernandez-Medina, 141 Wn.2d at 456 ("Our case law is clear . . . that the evidence must affirmatively establish the defendant's theory of the case — it is not enough that the jury might disbelieve the evidence pointing to guilt.").

Because the evidence must demonstrate that only the inferior degree offense was committed, when the evidence is consistent with both the inferior and superior degree offenses, a trial court may refuse to instruct the jury on the inferior degree offense. See State v. Gamble, 168 Wn.2d 161, 181-82, 225 P.3d 973 (2010). "When determining if the evidence at trial was sufficient to support the giving of an instruction, the appellate court is to view the supporting evidence in the light most favorable to the party that requested the instruction." Fernandez-Medina, 141 Wn.2d at 455-56.

To convict Veteta-Contreras and Martinez of first degree robbery as charged, the State had to prove beyond a reasonable doubt that they "[d]isplay[ed] what appeared to be a firearm or other deadly weapon" during commission of the crime. RCW 9A.56.200(1)(a)(ii). To satisfy this element, "[t]he State is not required to prove that the defendant brandished the weapon or that the victim saw the weapon." State v. Kennard, 101 Wn.App. 533, 539, 6 P.3d 38 (2000). This alternative means is "intended to proscribe conduct in the course of a robbery which leads the victim to believe the robber is armed with a deadly weapon, whether the weapon is actually loaded and operable or not, and whether the weapon is real or toy." State v. Henderson, 34 Wn.App. 865, 868, 664 P.2d 1291 (1983). However, if Veteta-Contreras and Martinez merely robbed Flores-Cruz without displaying an apparent firearm or other deadly weapon, they would have committed second degree robbery. RCW 9A.56.210. Thus, to be entitled to an instruction on second degree robbery, the evidence must affirmatively show that their behavior did not amount to first degree robbery. RCW 9A.56.210.

Regarding the first degree robbery count, Veteta-Contreras and Martinez offer no argument explaining how the evidence affirmatively establishes that they committed only second degree robbery. Veteta-Contreras assigns no error to the court's failure to give an inferior degree instruction for this count. Martinez assigns error regarding this count but fails to discuss the evidence relating to it in his argument. "Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration." Palmer v. Jensen, 81 Wn.App. 148, 153, 913 P.2d 413 (1996); see also State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992) (same). We thus decline to consider this claim of error on the first degree robbery count.⁴²

42 Even if we consider this issue, no affirmative evidence establishes that the robbery was committed without the display of an apparent deadly weapon. The testimony at trial established that Veteta-Contreras approached Flores-Cruz, demanded $20, and pulled out a machete when Flores-Cruz refused. Veteta-Contreras stated that he was from "La Mara, " flashed a gang sign, and said, "The beast is on the loose." RP (Dec. 15, 2010) at 541-42. No evidence affirmatively shows the robbery was committed without display of the machete.

Regarding the attempted first degree robbery and second degree assault counts, Veteta-Contreras and Martinez argue that an inferior degree instruction was warranted because a jury could have doubted whether a machete was actually used⁴³ or whether the machete qualified as a deadly weapon.⁴⁴ Thus, their argument rests upon the possibility that the jury could have doubted the State's evidence of their guilt. Argument that the jury possibly could have doubted the State's evidence is not sufficient to entitle a defendant to an inferior degree offense instruction. Fernandez-Medina, 141 Wn.2d at 456. Further, regarding the attempted robbery count, both Veteta-Contreras and Martinez ignore the evidence that a gun was displayed during the attempted robbery of Duran-Acosta. They fail to explain how, given this evidence, an inferior degree instruction was warranted. Even taking the evidence in the light most favorable to Veteta-Contreras and Martinez, the evidence does not affirmatively show that they committed only the inferior degree offenses to the exclusion of the charged offenses. The trial court properly refused to instruct the jury on inferior degree offenses for the first degree robbery and first degree attempted robbery counts.

43 For this argument, Veteta-Contreras and Martinez cite to the fact that Duran-Acosta initially described the weapon to police as a club or cable. But six different witnesses testified that Veteta-Contreras had a machete, and Duran-Acosta testified that he later realized the weapon could not have been a club or cable. Defense counsel even used the word "machete" to describe the weapon in opening and closing remarks. Citing Brief of Respondent at 101, Martinez argues in his reply that the State concedes there was evidence indicating the machete was really a piece of cable or a club. He misstates the State's argument. The State argues that overwhelming evidence indicates the weapon was a machete and that while Duran-Acosta initially thought the weapon was a club or cable, he later realized the weapon ripped his shirt and could not have been a club or cable.

44 Citing In re Personal Restraint of Martinez, 171 Wn.2d 354, 256 P.3d 277 (2011), Martinez also suggests that the machete may not have qualified as a deadly weapon. In Martinez, the defendant was arrested after he burglarized an uninhabited farm shop. Martinez, 171 Wn.2d at 357-58. The arresting officer noticed that Martinez had an empty knife sheath on his belt and that Martinez admitted the knife must have fallen out when he ran from the police. Martinez, 171 Wn.2d at 358. Police officers recovered the knife nearby. Martinez, 171 Wn.2d at 358. The Supreme Court held that the evidence was insufficient to establish that the knife qualified as a deadly weapon, noting, "No one saw Mr. Martinez with the knife, and he manifested no intent to use it. Furthermore, no one saw Mr. Martinez reach for the knife at any time after he was apprehended." Martinez, 171 Wn.2d at 368. Martinez notes that the Martinez court disapproved of State v. Gamboa, 137 Wn.App. 650, 154 P.3d 312 (2007), where the court of appeals held that "a machete used to forcibly enter a home was a deadly weapon, despite the lack of evidence that it was used or intended to be used as a weapon." Martinez, 171 Wn.2d at 368 n.6. The Martinez court explained, "By characterizing a machete as a deadly weapon on the sole basis of its dangerousness and without regard to its actual, attempted, or threatened use, the Gamboa court essentially read the circumstances provision out of the statute and treated the machete as if it were a deadly weapon per se." Martinez, 171 Wn.2d at 368 n.6. Martinez's reliance on Martinez is misplaced. Here, unlike in Martinez or Gamboa, witnesses testified that Veteta-Contreras brandished the machete in a threatening way and used it to strike Duran-Acosta.

Regarding the second degree assault count, Veteta-Contreras argues he was entitled to an inferior degree instruction for fourth degree assault. Thus, we must determine whether "substantial evidence in the record supports a rational inference that [Veteta-Contreras] committed only the . . . inferior degree offense [of fourth degree assault] to the exclusion of the greater offense [of second degree assault] . . . ." Fernandez-Medina, 141 Wn.2d at 461 (emphasis added). Put another way, the record must support an inference that the assault was committed only with a nondeadly weapon. RCW 9A.36.041. Here, testimony established that Veteta-Contreras threatened Duran-Acosta with a machete and then swung the machete, slicing through Duran-Acosta's shirt and leaving a bruise. For the reasons discussed above, the evidence did not affirmatively establish that Veteta-Contreras assaulted Duran-Acosta without a deadly weapon. Veteta-Contreras's claim fails.

For the first time on appeal, Martinez claims that the well-settled rule for instructing on inferior degree offenses discussed above is unconstitutional. He challenges Fowler's rule that "[i]t is not enough that the jury might simply disbelieve the State's evidence. Instead, some evidence must be presented which affirmatively establishes the defendant's theory on the lesser included offense before an instruction will be given."⁴⁵ Fowler, 114 Wn.2d at 67. Martinez argues that in earlier cases, the court stated that a lesser included instruction was warranted unless the evidence positively excluded the lesser included offense. Martinez argues we are bound by this earlier standard under the Washington Constitution, article I, section 21.⁴⁶

45 The court reiterated this rule in Fernandez-Medina, 141 Wn.2d at 456 ("Our case law is clear . . . that the evidence must affirmatively establish the defendant's theory of the case—it is not enough that the jury might disbelieve the evidence pointing to guilt.") and State v. Porter, 150 Wn.2d 732, 737, 82 P.3d 234 (2004) ("'the evidence must raise an inference that only the lesser included[/inferior degree] offense was committed to the exclusion of the charged offense.'") (quoting Fernandez-Medina, 141 Wn.2d at 455).

46 This section provides, "The right of trial by jury shall remain inviolate . . . ." Wash. Const. art. I, § 21.

Martinez attempts to circumvent stare decisis by arguing he is constitutionally entitled to benefit from a prior body of law. His argument fails for several reasons. First, he cites no Washington authority for the proposition that a defendant has a state constitutional right to a particular test for determining when the trial court must give an inferior degree offense instruction. "The purpose of article I, section 21 was to preserve inviolate the right to a trial by jury as it existed at the time of the adoption of the constitution." State v. Smith, 150 Wn.2d 135, 150-51, 75 P.3d 934 (2003). Martinez cites to no constitutional history or preexisting state law supporting his theory that at the time the constitution was adopted, defendants had the right to a particular test for determining whether inferior degree offense instructions should be given. He instead cites to several cases that do not address inferior degree instructions.⁴⁷

47 See Sofie v. Fibreboard Corp., 112 Wn.2d 636, 659, 771 P.2d 711 (1989) (holding that a statute limiting noneconomic damages recoverable by a personal injury or wrongful death plaintiff was unconstitutional); State v. Strasburg, 60 Wn. 106, 120-24, 110 P.1020 (1910) (holding that a statute abolishing the insanity defense was unconstitutional).

Martinez also fails to cite any authority providing that a defendant has a constitutional right to an inferior degree instruction in the first place. Our Supreme Court has recognized that a court's failure to instruct on lesser included offenses is not an error of constitutional magnitude. State v. Lord, 117 Wn.2d 829, 880, 822 P.2d 177 (1991); Scott, 110 Wn.2d at 688 n.5. Instead, the right to a lesser included offense developed as part of the common law. State v. Berlin, 133 Wn.2d 541, 544-45, 947 P.2d 700 (1997). No constitutional right is implicated by what test is employed in determining whether to give a lesser or inferior degree offense instruction.

Martinez also incorrectly asserts that the Fowler court adopted a completely new test for when to give an inferior degree instruction. Before Fowler, the appellate courts articulated a variety of tests, but the language Martinez challenges in Fowler can be traced back nearly a century.⁴⁸ Thus, while Martinez cites a number of cases suggesting a more liberal standard for instructing on a lesser included or inferior degree offense, ⁴⁹ review of the case law shows varying formulations of the test. For over two decades, however, our courts have applied the Fowler test. Martinez fails to show that this test is unconstitutional, and we are bound by our Supreme Court's holding in Fowler. 1000 Virginia Ltd. P'ship v. Vertecs Corp., 158 Wn.2d 566, 578, 146 P.3d 423 (2006) (we are bound by the decisions of our State Supreme Court and err when we fail to follow them); State v. Gore, 101 Wn.2d 481, 487, 681 P.2d 227 (1984)

48 Fowler cited to an earlier Court of Appeals decision, State v. Rodriguez, 48 Wn.App. 815, 740 P.2d 904 (1987), which explained that in order to instruct on a lesser included offense, some evidence must be presented to affirmatively establish that the defendant committed only that lesser offense: "The jury may always disbelieve any portion of a witness's testimony, 'but if the defendant would urge as an alternative theory that he committed only [the included crime], some evidence must be presented affirmatively to establish that theory.'" Rodriguez, 48 Wn.App. at 820 (alteration in original) (quoting State v. Wheeler, 22 Wn.App. 792, 797, 593 P.2d 550 (1979)).

49 See, e.g., State v. Foley, 174 Wn. 575, 25 P.2d 565 (1933); State v. Donofrio, 141 Wn. 132, 250 P. 951 (1926); State v. Gottstein, 111 Wash. 600, 191 P. 766 (1920).

[O]nce this court has decided an issue of state law, that interpretation is binding on all lower courts until it is overruled by this court. Godefroy v. Reilly, 146 Wash. 257, 262 P. 639 (1928); cf. Hutto v. Davis, 454 U.S. 370, 375, 70 L.Ed.2d 556, 102 S.Ct. 703 (1982) ("unless we wish anarchy to prevail within the . . . judicial system, a precedent of this Court must be followed by the lower . . . courts . . .").

VIII. Sufficiency of the Evidence for First Degree Robbery Conviction

Both Veteta-Contreras and Martinez challenge the sufficiency of the evidence on their first degree robbery convictions. They argue that display of an apparent firearm is an alternative means within the alternative means for first degree robbery, and because there was no evidence that they displayed a firearm while robbing Flores-Cruz, the evidence is insufficient to support one of the alternative means.

As discussed above, Veteta-Contreras's and Martinez's "alternative means within alternative means" theory is unsupported by argument or citation to authority and is incorrect. The State was not required to present evidence that they displayed a firearm. See State v. Smith, 159 Wn.2d 778, 783-92, 154 P.3d 873 (2007) (common law definitions of assault do not create separate alternative means; State was not required to present substantive evidence supporting each definition).⁵⁰

50 Even if Veteta-Contreras's and Martinez's alternative means argument was correct, their claim fails. If the evidence is insufficient to support a verdict on each of the alternative means submitted to the jury, the conviction may still be affirmed if we "can determine that the verdict was based on only one of the alternative means and that substantial evidence supported that alternative means." State v. Rivas, 97 Wn.App. 349, 351-52, 984 P.2d 432 (1999), overruled on other grounds by State v. Smith, 159 Wn.2d 778, 154 P.3d 873 (2007). A reviewing court can make this determination where "it is clear from the charging document, the trial record, and the jury's special verdict form" that there was no evidence of one alternative means and the jury convicted only on the remaining means supported by substantial evidence. State v. Bland, 71 Wn.App. 345, 354, 860 P.2d 1046 (1993), overruled on other grounds by Smith, 159 Wn.2d at 786-87.

IX. Double Jeopardy

Veteta-Contreras argues that his attempted first degree robbery and second degree assault convictions violate double jeopardy. He claims that the second degree assault elevated the robbery to first degree and, thus, the doctrine of merger requires vacation of the assault conviction. The State responds that as this case was charged and proved, it was not required to prove that Veteta-Contreras committed second degree assault to elevate attempted robbery to first degree attempted robbery.

A. Relevant Facts

At sentencing, the State conceded that Veteta-Contreras's first degree attempted robbery and second degree assault convictions constituted the same criminal conduct. The prosecutor did not ask the court to impose confinement time for the second degree assault but argued that the 12-month deadly weapon enhancement still applied on that count. Veteta-Contreras's counsel had no objection to the State's representations regarding the standard sentencing ranges and enhancements: "[I]t is essentially an agreed recommendation except for the nonmandatory financial obligations." RP (Feb. 4, 2011) at 7. The trial court followed the State's recommendation, including the State's concession that attempted first degree robbery and second degree assault constituted the same criminal conduct. Specifically, the court found, "Count 3 [second degree assault] is same course of criminal conduct and merges with count II [attempted first degree robbery]." The court did not impose sentence on the assault conviction other than the deadly weapon enhancement.⁵¹

51 The court erred by failing to impose a sentence on each count. See RCW 9.94A.589(1)(a) ("[I]f the court enters a finding that some or all of the current offenses encompass the same criminal conduct[, ] then those current offenses shall be counted as one crime. Sentences imposed under this subsection shall be served concurrently."). But here the failure to impose a sentence term on the second degree assault conviction did not affect the length of Veteta-Contreras's total sentence.

B. Analysis

Veteta-Contreras argues that his first degree attempted robbery and second degree assault convictions merge for double jeopardy purposes. We review his double jeopardy challenge de novo and may do so for the first time on appeal. State v. Freeman, 153 Wn.2d 765, 770, 108 P.3d 753 (2005); State v. Adel, 136 Wn.2d 629, 631-32, 965 P.2d 1072 (1998).

The double jeopardy clause of the Fifth Amendment to the United States Constitution and article I, section 9 of the Washington State Constitution protect a defendant against multiple punishments for the same offense. State v. Calle, 125 Wn.2d 769, 775, 888 P.2d 155 (1995). Freeman, 153 Wn.2d at 771-73, sets forth the framework for the double jeopardy analysis. Freeman requires us to first look to whether there is either express or implicit legislative intent authorizing cumulative punishment. Freeman, 153 Wn.2d at 771-72. Subject to constitutional restraints, the legislature has the power to define crimes and assign punishment. Calle, 125 Wn.2d at 776. If the intent is clear and the legislature authorizes "cumulative punishments" under two different statutes, "then double jeopardy is not offended" and the court's double jeopardy analysis is at an end. Freeman, 153 Wn.2d at 771.

If legislative intent is unclear, we proceed to the second step of the double jeopardy analysis—the "same elements" test under Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Blockburger test asks whether the offenses are the same in law and fact. Calle, 125 Wn.2d at 777. If each crime contains an element the other does not, we presume the crimes are not the same for purposes of double jeopardy. Blockburger, 284 U.S. at 304; Calle, 125 Wn.2d at 777.

Finally, "if applicable, the merger doctrine is another aid in determining legislative intent, even when two crimes have formally different elements." Freeman, 153 Wn.2d at 772. "The merger doctrine is relevant only when a crime is elevated to a higher degree by proof of another crime proscribed elsewhere in the criminal code." State v. Parmelee, 108 Wn.App. 702, 710, 32 P.3d 1029 (2001). When two crimes merge, the trial court convicts the defendant only of the one offense into which the other offense merges. Parmelee, 108 Wn.App. at 711.

Specifically, the merger doctrine is triggered when a completed second degree assault elevates robbery to the first degree. RCW 9A.56.200(l)(a)(i)-(ii); RCW 9A.56.190; RCW 9A.36.021(l)(c); see State v. Kier, 164 Wn.2d 798, 805, 194 P.3d 212 (2008); Freeman, 153 Wn.2d at 780. But "a case by case approach is required to determine whether first degree robbery and second degree assault are the same for double jeopardy purposes." Freeman, 153 Wn.2d at 780. And "even if on an abstract level two convictions appear to be for the same offense or for charges that would merge, if there is an independent purpose or effect to each, they may be punished as separate offenses." Freeman, 153 Wn.2d at 773. As our Supreme Court explained, "For example, when the defendant struck a victim after completing a robbery, there was a separate injury and intent justifying a separate assault conviction, especially since the assault did not forward the robbery." Freeman, 153 Wn.2d at 779.

In State v. Zumwalt, 119 Wn.App. 126, 82 P.3d 672 (2003), aff'd, Freeman, 153 Wn.2d 765, a case consolidated under Freeman, our Supreme Court considered whether first degree robbery and second degree assault merged for double jeopardy purposes. Freeman, 153 Wn.2d at 778-80. Zumwalt was charged with both crimes after punching the victim in the face and robbing her. The first degree robbery charge was based on the reckless infliction of bodily injury alternative means, and the second degree assault charge was based on the reckless infliction of bodily harm alternative means. Zumwalt, 119 Wn.App. at 131. The only facts that elevated the robbery to first degree also established the separate assault charge. Zumwalt, 119 Wn.App. at 131-32. Our Supreme Court concluded that the convictions merged for double jeopardy purposes because "[a]s charged and proved, without the conduct amounting to assault, [Zumwalt] would be guilty of only second degree robbery." Freeman, 153 Wn.2d at 778. But the court refused to adopt a per se rule and held that whether the merger doctrine applied would be decided case by case. Freeman, 153 Wn.2d at 778-80.

Since Freeman, we have addressed whether attempted first degree robbery and second degree assault merge for double jeopardy purposes. In State v. Esparza, 135 Wn.App. 54, 61, 143 P.3d 612 (2006), the defendant argued that his convictions for both crimes violated double jeopardy. We rejected his claim, explaining, "the State was not required to prove [the defendant] committed the crime of second degree assault in order to elevate the attempted robbery to attempted first degree robbery." Esparza, 135 Wn.App. at 66.

Because the robbery involved that alleged use of a firearm, the State only had to prove that Beaver was armed with a deadly weapon or displayed what appeared to be a firearm or other deadly weapon. Here, it was charged and proved that Beaver was armed with a deadly weapon, therefore elevating the attempted robbery to first degree attempted robbery. Since it was unnecessary under the facts of this case for the State to prove that Beaver engaged in conduct amounting to second degree assault in order to elevate his robbery conviction and because the State did prove conduct not amounting to second degree assault that elevated Beaver's attempted robbery conviction, the merger doctrine does not prohibit Beaver's conviction for both attempted first degree robbery and second degree assault.

Esparza, 135 Wn.App. at 66 (footnote omitted). We distinguished Freeman/Zumwalt because of the different way the crimes were charged and proved at trial:

As charged and proved, Zumwalt was guilty of first degree robbery because he inflicted bodily injury (assaulted) the victim in furtherance of the robbery. In short, under the facts of the case, the State was required to prove that Zumwalt engaged in conduct amounting to second degree assault in order to elevate his robbery conviction to first degree robbery.

Esparza, 135 Wn.App. at 65-66.

In Kier, our Supreme Court discussed and approved of our analysis in Esparza:

There, Division One of the Court of Appeals held that a person convicted of attempted first degree robbery under the "[d]isplays what appears to be a firearm or other deadly weapon" prong of the robbery statute and second degree assault under the "[a]ssaults another with a deadly weapon" prong of the assault statute arising out of the same incident can permissibly be punished for having committed both offenses, thus distinguishing Zumwalt. RCW 9A.56.200(1)(a)(ii); RCW 9A.36.021(1)(c).

Importantly, the elevated charge at issue in Esparza was attempted first degree robbery. Proof of an attempted robbery requires only proof of intent to commit robbery and a substantial step toward carrying out that intent. RCW 9A.28.020(1). The Court of Appeals recognized that any number of actions proved at Esparza's trial constituted a substantial step toward the attempted robbery and, thus, the assault was not necessary to elevate the charge to first degree.

Kier, 164 Wn.2d at 806-07 (alterations in original. The Kier court also approvingly cited State v. Beals, 100 Wn.App. 189, 997 P.2d 941 (2000): "'A completed second degree assault is not necessary to prove attempt to commit first degree robbery, and it is unlikely the legislature intended . . . the merger doctrine to so apply here.'" Kier, 164 Wn.2d at 807 (quoting Beals, 100 Wn.App. at 193-94). Veteta-Contreras's double jeopardy claim fails under Esparza and Kier. As the case was charged and proved, the State was not required to prove that Veteta-Contreras committed the second degree assault in order to elevate the attempted robbery to first degree. As in Esparza, the State charged Veteta-Contreras with attempted first degree robbery based on the "displays what appears to be a firearm or other deadly weapon" alternative means.⁵² RCW 9A.56.200(1)(a)(ii). Thus, to elevate the attempted robbery to first degree, the State had to prove that Veteta-Contreras or his accomplice displayed what appeared to be a deadly weapon during the robbery. Unlike the case in Freeman/Zumwalt, where the robbery was based on an alternative means that required an assault, here, the act constituting the second degree assault (Veteta-Contreras's act of hitting Duran-Acosta with the machete) was not necessary to elevate the attempted robbery.⁵³ Like in Esparza, any number of actions proved at Veteta-Contreras's trial constituted a substantial step toward the attempted robbery and, thus, the assault was not necessary to elevate the charge to first degree. Under these circumstances, Veteta- Contreras fails to establish that he is entitled to dismissal of the second degree assault charge based on a double jeopardy violation under the merger doctrine.⁵⁴Veteta-Contreras's related argument that the trial court erroneously imposed a deadly weapon enhancement for the assault conviction also fails because this claim depends on his incorrect double jeopardy argument.

52 Veteta-Contreras argues that the merger doctrine applies because "[t]he basis for attempted first degree robbery was the use or threat to use immediate force, violence or fear of injury by means of a machete—the same conduct forming the basis for second degree assault." Br. of Appellant at 65. He is incorrect. The "use or threatened use of immediate force, violence, or fear of injury" does not elevate attempted robbery to first degree attempted robbery—in fact, this element is present in all robbery charges regardless of degree. RCW 9A.56.190; RCW 9A.56.210.

53 Veteta-Contreras also cites In re Personal Restraint of Francis, 170 Wn.2d 517, 242 P.3d 866 (2010), where the court held that the merger doctrine applied where the attempted first degree robbery charge was based on the alternative means that the defendant inflicted bodily injury on the victim. The merger doctrine applied because the second degree assault conduct was also charged as an element of the first degree robbery charge. Francis, 170 Wn.2d at 524. The court acknowledged that its holding would have been different had the State charged the attempted robbery based on a different alternative means and distinguished Esparza on this ground. Francis, 170 Wn.2d at 526 n.5, 527. Francis is consistent with Esparza and Kier and does not support Veteta-Contreras's double jeopardy claim.

54 In his reply, Veteta-Contreras cites Kier and State v. DeRyke, 110 Wn.App. 815, 41 P.3d 1225 (2002), aff'd on other grounds, 149 Wn.2d 906, 73 P.3d 1000 (2003) for the proposition that the rule of lenity should apply in his favor here. He argues that those cases stand for the proposition that "[t]he rule of lenity applies where it is unclear what evidence the jury relied upon to convict for the greater offense." Reply Br. of Appellant at 1. But Kier and DeRyke are distinguishable. In Kier, the Supreme Court applied the rule of lenity to defeat the State's argument that double jeopardy did not bar convictions for both first degree robbery and second degree assault under a merger analysis because the crimes involved different victims. Kier, 164 Wn.2d at 808, 811-13. Analogizing to DeRyke, the court concluded the verdict was ambiguous because the jury heard evidence describing two people as victims of the robbery but the instruction did not specify a victim. Kier, 164 Wn.2d at 812. Given the ambiguity, the court applied the rule of lenity and merged the convictions. Kier, 164 Wn.2d at 808, 812-14.

CONCLUSION

Because Veteta-Contreras and Martinez demonstrate no reversible error, we affirm their convictions.

The prosecutor continued, "It's little, it's subtle, but it's hard to argue against that type of evidence. 'I don't have nothing.' What's he do? He lifts up his shirt, because whatever something he had was in his shirt, it ain't there no more. His own gestures even unconsciously betray his guilt more than anything he could have said to the police." RP (Jan. 3, 2011) at 66. We question whether this evidence constitutes evidence of guilt because officers had recently searched Martinez and Barrera for weapons and Martinez stated, "I don't have nothing." Ex. 1.

While the immunity agreement was admissible after Cole's credibility was attacked, we agree that the language that the intent of the agreement was to "secure the true and accurate testimony" and the provision that Cole "testify truthfully" should have been redacted if such a request had been made. These provisions were prejudicial and improperly vouched for Cole's veracity.

Green, 119 Wn.App. at 24 (emphasis added). Here the record undisputedly establishes that defense counsel attacked Monetti's credibility before the challenged immunity agreements were offered, failed to object to their admission, and never requested redaction.

"(1) A person is guilty of robbery in the first degree if:

"(a) In the commission of a robbery or of immediate flight therefrom, he or she: "(i) Is armed with a deadly weapon; or

"(ii) Displays what appears to be a firearm or other deadly weapon; or "(iii) Inflicts bodily injury; or

"(b) He or she commits a robbery within and against a financial institution as defined in RCW 7.88.010 or 35.38.060.

"(2) Robbery in the first degree is a class A felony."

Washington case law establishes that the elements in subsections (a)(i) through

(iii) are alternative means of committing first degree robbery. State v. Nicholas, 55 Wn.App. 261, 272-73, 776 P.2d 1385 (1989). Citing no authority and offering no argument on the issue, Martinez contends that subsection (a)(ii) contains "two separate alternative means within this alternative means, " namely that displaying an apparent firearm is a separate alternative means from displaying an apparent "other deadly weapon" under RCW 9A.56.200. Br. of Resp't at 82.

Veteta-Contreras also cites State v. Lane, 36 Wn.2d 227, 217 P.2d 322 (1950) and Bray, 52 Wn.App. 30, for the proposition that prejudicial error occurs if the definition instruction contains an uncharged alternative means, even if the "to convict" instruction contains only the charged means. But in both cases, the defendant did not invite the error and the issue was not raised as an ineffective assistance of counsel claim. Therefore, the standard applied on review was that the error was presumed prejudicial unless it affirmatively appeared it was harmless. Lane, 36 Wn.2d at 231-35; Bray, 52 Wn.App. at 34-35. Moreover, in Bray, the State discussed the uncharged alternative means in closing remarks, and on appeal the State continued to insist that the jury could rely on the uncharged means in convicting the defendant as an accomplice. Bray, 52 Wn.App. at 35-36. Unlike in Bray, here the prosecutor did not refer to the uncharged alternative means in closing remarks. The "to convict" instruction contained explicit directions to convict Veteta-Contreras of the charged crime or acquit him. Veteta-Contreras fails to show a reasonable probability that the trial results would have been different had the definitional instruction not included the uncharged alternative means.

"The defendant's exception consisted only of the bare statement, 'I would further object to the court's failure to give the lesser included offense instruction of simple assault.' The defendant failed to give the trial court any reason why the instruction should be given, or why it would be error not to give it.

"We conclude that Brown failed properly to preserve the alleged error for appeal. CrR 6.15(c) requires a party to state the reasons for objecting to the instructions given or refused. Where a party fails to follow the requirement of CrR 6.15(c), the appellate court will not consider the alleged error. State v. Robinson, 92 Wn.2d 357, 361, 597 P.2d 892 (1979). Brown failed to provide the trial court with reasons for his objections to the court's failure to give the requested instruction. Accordingly, we will not address the issue." Brown, 36 Wn.App. at 170.

Rodriguez cited State v. Turner, 115 Wn. 170, 196 P. 638 (1921), to support its holding. In Turner, the defendant was convicted of bootlegging and argued the trial court erred by failing to give an instruction on the lesser offense of unlawful possession of liquor. Turner, 48 Wn. at 172-73. The Supreme Court rejected this argument, reasoning that there was no affirmative evidence that the defendant committed only the lesser crime: "In this case, however, the testimony of the state's principal witness, Hatvedt, that he had purchased one drink, at the time alleged, from appellant, which was delivered to him in a glass in the rear of a pool hall, and that the liquor delivered to him by appellant was moonshine whisky, there being no other evidence of the possession of any unlawful liquor by appellant except that delivered to the state's witness, the offense charged was either consummated by the sale to the state's witness as testified to or there was no offense committed at all. In other words, unless appellant consummated the crime of having intoxicating liquor in his possession and carrying it about with him with intent to sell as evidenced by the fact that he did sell then and there to the state's witness, he had no liquor at all; and there is no justification for instructing the jury that they might find the defendant guilty of the lesser offense of the unlawful possession of intoxicating liquor. "While we have always held that the jury has a right, under our Criminal Code, to determine the degree of the offense which was committed, we have also uniformly held that that determination must be based upon evidence." Turner, 115 Wn. 173-74.

The record here leaves no doubt that the jury based its first degree robbery verdict on display of the machete. No evidence indicated a firearm was used in the robbery, Flores-Cruz testified that no firearm was displayed, and the prosecutor never argued or suggested that the verdict on this count could be based on display of an apparent firearm. And the jury found unanimously by special verdict that Veteta-Contreras and Martinez were armed with a deadly weapon—the machete—during commission of the robbery. Substantial evidence supports their first degree robbery convictions.

In DeRyke, the defendant argued that the trial court erred by failing to merge his first degree kidnapping conviction into his attempted first degree rape conviction. DeRyke, 110 Wn.App. at 822. Under Washington's criminal code, use of a deadly weapon and kidnapping the victim serve as independent bases on which to elevate rape to first degree. RCW 9A.44.040(1)(a), (b). DeRyke, 110 Wn.App. at 823. We found the trial court's "to convict" instruction on attempted first degree rape permitted the jury to find that kidnapping the victim elevated the attempted rape to first degree. DeRyke, 110 Wn.App. at 823-24. Because there was no way to determine that the jury had not considered the kidnapping as the aggravating element, the rule of lenity applied to merge the kidnapping conviction into the attempted first degree rape. DeRyke, 110 Wn.App. at 824. Here, in contrast to Kier, no ambiguity existed regarding victim identity. And unlike in DeRyke, here, the act constituting the lesser crime (second degree assault) was not necessary to elevate the attempted robbery to first degree. The to-convict instruction for first degree attempted robbery required the jury to find that Veteta-Contreras and Martinez displayed what appeared to be a firearm or other deadly weapon and did not require the jury to find bodily injury.