Opinion
No. 61178-0-I.
March 9, 2009.
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-1-03046-2, Larry E. McKeeman, J., entered December 27, 2007.
Affirmed by unpublished opinion per Schindler, C.J., concurred in by Appelwick and Leach, JJ.
A jury found Roger C. Pelfrey not guilty of assault in the second degree but convicted him of unlawful imprisonment and harassment. However, as to the harassment conviction, the jury found that Pelfrey's threat to cause bodily harm to the victim was not a threat to kill. Pelfrey asserts that the trial court erred by not including a definition of "true threat" in the jury instructions. We conclude that although the failure to give a "true threat" instruction was error, it was harmless beyond a reasonable doubt. We also reject Pelfrey's claim that he is entitled to a new trial based on prosecutorial misconduct, and affirm.
FACTS
In September 2007, Lynnore Goddard met Roger C. Pelfrey at a Top Foods store in Edmonds. Pelfrey asked Goddard for a dollar. Goddard gave Pelfrey the money and the two began to talk. Pelfrey offered to carry Goddard's groceries to the motel where Goddard was living. Pelfrey and Goddard sat outside of Goddard's motel room for a few hours and talked.
Over the next three days, Pelfrey visited Goddard. On the third day, Pelfrey told Goddard that he was homeless and took her to the campsite near the freeway where he was living. On the way back from the campsite, Goddard stepped on a branch that made a noise. Goddard said that Pelfrey hit her on the back because he was afraid of being discovered and was angry about the noise she made.
Later that evening, the police arrested Goddard on an outstanding warrant for driving with a suspended license. Goddard spent approximately four nights in jail. When Goddard returned to her motel room, she was surprised to find Pelfrey staying there. Nonetheless, she allowed Pelfrey to continue to stay with her and they began to have a sexual relationship.
On the evening of September 21, Pelfrey and Goddard drank beer. Goddard said that she had two beers and Pelfrey had about eight. Goddard testified that Pelfrey started calling her names and arguing with her. Goddard told Pelfrey to leave but he refused. Goddard said that Pelfrey pushed her and
the next thing I know I'm on the floor and he's choking me." He said, "No wonder I've had so many of you bitches in different states, because you're stupid. Every state you women are stupid. If I have my 14-inch knife, I will stab you with that. Too bad he didn't have his 14-inch knife.
Goddard testified that Pelfrey had his hands around her neck and his knee in her stomach and she had trouble breathing. Goddard was scared and believed Pelfrey meant to kill her. While Pelfrey was choking her, Goddard told Pelfrey that she was going to call the police. Pelfrey said he would kill her first. Goddard testified that she grabbed a chair, hit Pelfrey with it, ran out, and called the police on her cell phone.
The police arrived at approximately 4:30 a.m. Goddard was very upset. The officers noticed that Goddard's pants were wet and it looked like she had urinated on herself. Goddard told the police repeatedly that Pelfrey had choked her. Goddard also told the officers that Pelfrey had threatened her with a 14-inch knife and prevented her from leaving the room. However, Goddard said that she and Pelfrey were not dating and did not have a sexual relationship. Goddard said that Pelfrey was a friend. The officers took pictures of Goddard, including a mark on her left collarbone and a scrape mark on her forearm.
When the officers went into the motel room, Pelfrey was in bed with only a shirt on. Pelfrey said that he had just woken up and told the police that he did not know why they were there.
The officers testified that if Goddard and Pelfrey either lived together or were in a sexual relationship, they would have automatically arrested Pelfrey. But because Goddard said that they did not live together or have a sexual relationship, the officers cited Pelfrey for assault in the fourth degree and drove him back to his campsite.
Goddard told the police that she and Pelfrey had a sexual relationship later that day. Goddard also told the police that when Pelfrey choked her, she could not breathe. The police then went to the campsite to arrest Pelfrey.
When the officers arrested him, Pelfrey told them that he put his hands on Goddard's throat while they were having sex because she liked it. Pelfrey explained that a lot of women like having hands on their throats during sex and Goddard liked sex "a bit rough." Pelfrey admitted that he stopped Goddard from leaving the room because he wanted to have more sex.
The State charged Pelfrey with assault in the second degree, unlawful imprisonment, and harassment. As to the harassment charge, the State alleged a felony enhancement based on Pelfrey's threat to kill Goddard. Pelfrey pleaded not guilty to the charges.
At trial, Goddard and the police officers testified on behalf of the State. The State introduced photos of Goddard's bruises from the first time the police spoke to her and again later that day, when the bruises on her neck were far more pronounced. The photos showed a distinct bruise on Goddard's neck.
Pelfrey testified that he stayed in Goddard's motel room while she was in jail to protect her things. Pelfrey said that Goddard told him he could stay with her. Pelfrey testified that there was no altercation on the night of September 21. According to Pelfrey, he had two 24-ounce beers, Goddard performed oral sex on him, and he fell asleep around 8 p.m. Pelfrey said he slept until the police woke him up.
Pelfrey testified that he put his hand on Goddard's neck during consensual sex, but he did not restrict her breathing and she did not complain or seem upset. Pelfrey denied choking Goddard, putting his knee on her stomach, preventing her from leaving the room, or threatening her with a knife. Pelfrey testified that he did not have any explanation for why Goddard called the police, why she was so upset at 4:30 in the morning, or the marks on her.
The jury found Pelfrey not guilty of assault in the second degree but found Pelfrey guilty of unlawful imprisonment and harassment. By special verdict, the jury found that Pelfrey's threat to cause bodily hard to Goddard was not a threat to kill her. The court sentenced Pelfrey to six months in jail.
ANALYSIS
Jury Instructions
For the first time on appeal, Pelfrey asserts that the trial court's failure to include a jury instruction defining "true threat" requires reversal of his conviction for harassment and unlawful imprisonment.
We review instructional errors de novo. State v. Brett, 126 Wn.2d 136, 171, 892 P.2d 29 (1995). In State v. Kilburn, 151 Wn.2d 36, 54, 84 P.3d 1215 (2004), the Washington State Supreme Court held that because the harassment statute, RCW 9A.46.020, criminalizes "pure speech," it must comply with the requirements of the First Amendment. State v. Kilburn, 151 Wn.2d at 41. Innocent threats are protected speech but "true threats are not." Because the harassment statute criminalizes speech, the State must prove the threat was a pure threat and not a threat made "in jest, idle talk, or political argument." State v. Kilburn, 151 Wn.2d at 43. Whether a statement is a true threat is determined by applying an objective standard that focuses on the speaker. Kilburn, 151 Wn.2d at 44. "A true threat is a statement made in a context or under circumstances where a reasonable person would foresee that the statement would be interpreted . . . as a serious expression of intent to inflict bodily harm. . . ." State v. Tallez, 141 Wn. App. 479, 482, 170 P.3d 75 (2007) (internal quotation marks omitted). Consequently, it is the context that determines whether the threat is serious and is a "true threat." We conclude that although the trial court erred by failing to define "true threat," it appears beyond a reasonable doubt from the record that the error did not contribute to the verdict. State v. Brown, 147 Wn.2d 330, 344, 58 P.3d 889 (2002).
RCW 9A.46.020 provides in pertinent part:
1) A person is guilty of harassment if:
(a) Without lawful authority, the person knowingly threatens:
(i) To cause bodily injury immediately or in the future to the person threatened or to any other person; or
(ii) To cause physical damage to the property of a person other than the actor; or
(iii) To subject the person threatened or any other person to physical confinement or restraint; or
(iv) Maliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety; and
(b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out.
(2)(a) Except as provided in (b) of this subsection, a person who harasses another is guilty of a gross misdemeanor.
(b) A person who harasses another is guilty of a class C felony if . . . (ii) the person harasses another person under subsection (1)(a)(i) of this section by threatening to kill the person threatened or any other person.
Pelfrey argues that because the jury acquitted him on the charge of assault in the second degree and the jury found that he did not threaten to kill Goddard, the failure to define "true threat" in the jury instructions was not harmless. We disagree.
There is no evidence to support that Pelfrey's statements could be construed as a joke or idle threats. And Pelfrey does not claim that his statements were made in jest or were idle talk. Pelfrey testified at trial that he did not make any threats whatsoever. Viewing Pelfrey's threats to Goddard in context, no reasonable juror in Goddard's position would have interpreted Pelfrey's statements as a joke, idle talk, or political argument. Rather, the evidence established that Goddard would have interpreted his threats as a serious expression of his intent to inflict bodily harm or take the life of another. Goddard testified that Pelfrey first pushed her and then began choking her on the floor, with his knee in her stomach. Goddard testified that Pelfrey commented on all of the women he "had" in other states and how they were all stupid. Goddard said that Pelfrey then told her that if he had his 14-inch knife, he would stab her with it and threatened to kill her when she said she was going to call the police. Goddard stated that she was scared and believed that Pelfrey meant to kill her.
The evidence in this case is in sharp contrast to Kilburn. In Kilburn, the court held that the evidence was insufficient for a reasonable person in the defendant's position to foresee that the victim would perceive the statement as a serious threat. Kilburn, 151 Wn.2d at 53. There, the defendant was a high school student who was talking to a friend when he smiled and said he was going to bring a gun to school. Kilburn, 151 Wn.2d at 52. The girl testified that she did not feel scared, she often joked with Kilburn, and she knew of no reason why he might wish to harm her. Kilburn, 151 Wn.2d at 52-53.
While we agree that the trial court erred in failing to instruct the jury on the definition of "true threat," based on the record, we conclude that the error was harmless beyond a reasonable doubt.
Prosecutorial Misconduct
Pelfrey also contends that the prosecutor committed misconduct during closing argument by referring to facts not in evidence, impermissibly shifting the burden of proof, and making improper remarks that expressed a personal opinion.
Where, as here, the defense fails to object to improper remarks during closing argument, error is 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 a curative instruction to the jury." State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). A prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and may freely comment on the credibility of the witnesses based on the evidence. State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997). "A defendant who alleges improper conduct on the part of a prosecutor must first establish the prosecutor's improper conduct and, second, its prejudicial effect." State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). We view the allegedly improper statements within the context of the entire argument, the issues in the case, the evidence, and the jury instructions. Dhaliwal, 150 Wn.2d at 578. Arguments based on common sense inferences are not prohibited. State v. Barrow, 60 Wn. App. 869, 874, 809 P.2d 209 (1991).
Prosecutors are not permitted to state their personal beliefs about the defendant's guilt or innocence or the credibility of witnesses. Dhaliwal, 150 Wn.2d at 577-78. Pelfrey argues that the prosecutor improperly suggested certain factors the jury could consider in determining credibility. In closing, the prosecutor stated that the jury could assess credibility by the way the Pelfrey testified, and pointed out that Pelfrey paused before speaking. The prosecutor said, "Thinking is something you have to do if you are worried about how your words may be heard and worried about what impression you are attempting to create, not something you have to do much of if it's just a memory that comes from your head to your mouth and comes right out." The court instructed the jury, "In considering a witness's testimony, you may consider . . . the quality of a witness's memory [and] the manner of the witness while testifying. . . ." In the context of the jury instruction on credibility, the prosecutor's comments were not so flagrant and ill-intentioned that it causes an enduring and resulting prejudice, Pelfrey has waived this argument on appeal.
Pelfrey also argues that the prosecutor offered his own conclusion about why Goddard appeared to have wet her pants when the police arrived. Pelfrey suggested that the reason Goddard wet her pants was because she had been drinking heavily. In closing argument, the prosecutor stated, "[t]here are a lot of reasons why a person might urinate in their pants, even in that state when they talk to the police. . . . Losing control of your bladder is something that happens to people under certain circumstances. Maybe she was really drunk and that's why. . . ." The prosecutor went on to say that another possible reason was fear. The prosecutor's statements were reasonable inferences from the evidence to suggest other possible reasons that Goddard might have urinated on herself. We reject Pelfrey's assertion that the prosecutor engaged in misconduct by referring to facts not in evidence during closing argument.
Pelfrey next contends that the prosecutor improperly shifted the burden of proof to Pelfrey by implying that Pelfrey had a duty to explain Goddard's injuries. "A defendant has no duty to present evidence; the State bears the entire burden of proving each element of its case beyond a reasonable doubt." State v. Fleming, 83 Wn. App. 209, 215, 921 P.2d 1076 (1996). However, the State may make comments about the "quality and quantity of evidence presented by the defense." State v. Gregory, 158 Wn.2d 759, 860, 147 P.3d 1201 (2006). "An argument about the amount or quality of evidence presented by the defense does not necessarily suggest that the burden of proof rests with the defense." Gregory, 158 Wn.2d at 860. In Fleming, the prosecutor told the jury that if it found for the defendant, it would have to find that the victim had lied about what had occurred. Fleming, 83 Wn. App. at 213. The prosecutor here did not make a similar statement, but instead pointed out that Pelfrey repeatedly said at trial that he did not have any explanation for the marks on Goddard or why she was so upset at 4:30 in the morning. In addition, the jury was instructed that the State had the "burden of proving each element of each crime beyond a reasonable doubt. . . . The defendant has no burden of proving that a reasonable doubt exists." We conclude that the court properly instructed the jury on the burden of proof and the prosecutor did not improperly shift the burden of proof to Pelfrey.
Pelfrey also asserts that the prosecutor improperly vouched for the truth of the Goddard's testimony. To support this argument, Pelfrey points to these statements in the prosecutor's closing:
Everything in this case, in the end, when you do the analysis, supports what she said. I'm not going to tell you to go in there and decide these charges are correct simply because she opened her mouth and said they were. That is not why he's guilty. It is not a matter of her credibility. It is a matter of all the factors surrounding this issue, this whole thing. There is no other explanation but that it is true.
In context, this argument was not improper. The arguments of both the State and the defense focused on the credibility of Goddard and Pelfrey. In closing, the prosecutor attempted to argue reasonable inferences as to why Goddard's version of events made more sense and was more accurate. The prosecutor's remark that "[t]here is no other explanation but that is true" was within the wide latitude prosecutors have in arguing reasonable inferences from the facts concerning a witness's credibility. Pelfrey cannot establish the prosecutor's argument was so flagrant or ill-intentional that it could not have been addressed by a curative instruction.
The court also instructed the jury that they were the "sole judges of the credibility of each witness" and the weight to be given to the testimony of each witness, that the lawyers remarks, statements, and arguments are not evidence, and the jurors "must disregard any remark, statement, or argument that is not supported by the evidence or the law in the court's instructions."
Finally, Pelfrey contends cumulative error denied him a fair trial. State v. Jones, 144 Wn. App. 284, 183 P.3d 307 (2008). Because the failure to give a "true threat" instruction was harmless and Pelfrey cannot establish prejudice from any statements made in closing that could not have been used by an instruction to the jury, the cumulative error doctrine does not apply.
We affirm.
WE CONCUR: