Opinion
No. 59313-7-I.
October 29, 2007.
Appeal from a judgment of the Superior Court for King County, No. 06-1-05551-5, Gregory P. Canova, J., entered November 20, 2006.
Affirmed by unpublished opinion per Coleman, J., concurred in by Baker and Agid, JJ.
A jury found David Shultz guilty of second degree assault for shooting his neighbor, Richard Tartar, with a BB gun, causing his arm to bleed and scar, and we must decide whether there was sufficient evidence from which the jury could conclude that the BB gun was a deadly weapon, i.e., capable of causing substantial bodily harm under the circumstances. We must also decide whether a police officer "vouched" for Tartar by stating that he "seemed to be pretty honest." Shultz did not object to this testimony, so we must decide whether it constituted manifest constitutional error. The other issues in this case are whether the court erred by refusing to instruct the jury on an inferior degree offense, whether Shultz's right to bear arms was violated by references to his ownership of firearms, and whether the evidence was sufficient for the jury to conclude that he committed harassment. We affirm.
Facts
Shultz and Tartar were next door neighbors. Shortly after Tartar moved next to Shultz, Shultz erected a fence that allegedly extended onto Tartar's property line, causing a dispute. In 2002, Shultz broke a garden rake over Tartar's back, for which he was convicted of assault in Seattle Municipal Court. Before the trial in this case, the State moved to admit evidence of that incident and some other incidents described below under ER 404(b). Shultz did not oppose the motion and the court granted it.
In 2003, Tartar's two dogs were barking and Shultz threw water on them. He was convicted of assault in Seattle Municipal Court for this incident, and evidence of this incident was admitted under ER 404(b). Three days later, while Tartar was washing his truck in front of his house, Shultz slowly backed his vehicle out of his driveway, stopped directly in front of Tartar, made his right hand into the shape of a gun, emulated pulling the trigger, and then blew on the end of his finger. He then said to Tartar, "Just watch your back. You're dead you f-ing wuss." Report of Proceedings (RP) (Oct. 16, 2006) at 147. Tartar interpreted this as "a threat to do bodily harm." Id. at 143. Shultz was convicted of harassment in Seattle Municipal Court for this incident, and evidence of this incident, in addition to Tartar's testimony that he was aware that Shultz had guns in his house and a concealed weapons permit, was admitted into evidence under ER 404(b).
At about 10:30 at night on August 25, 2004, Shultz shot Tartar with a BB gun for the first time. Tartar opened his back door to let his dogs out, but they refused. Tartar walked out first. He looked to his left, saw Shultz on his deck with the lights out, and immediately felt a stinging in his left shoulder. He started to bleed and eventually he was left with a scar. Evidence of this incident was admitted under ER 404(b).
At some time in 2005, Tartar petted one of his dogs and discovered "weeping blood" between its shoulder blades. RP (Oct. 17, 2006) at 226. He shook out the dog's bedding and found a BB with blood on it. Tartar took the dog to an emergency veterinarian. The BB had made a small hole in the dog.
Tartar found live ammunition in different places that he believed had been purposely left by Shultz. In June 2006, Tartar was mowing Nancy Lieurance's yard, which he did once a month. Lieurance also lived next to Shultz. While mowing her lawn, Tartar's lawnmower struck a bullet, and he found two more in the yard. He also found bullets in his own yard. Evidence of these incidents was admitted under ER 404(b). On another occasion, Tartar found a 9 mm hollow point bullet beneath the rear bumper of his truck.
On March 23, 2006, as Tartar sat at his kitchen table, a pellet or BB was shot through his kitchen window. Shultz was charged with third degree malicious mischief for this incident, and the jury in this case found him guilty.
On other occasions, Tartar discovered BBs embedded into the siding just outside his kitchen door. Officer Dain Jones examined one of these shots and testified that based on the angle of penetration, it came from Shultz's back deck. He also testified that he could not remove the BB "without using a great deal of force, probably causing more damage than it was worth." Id. at 322. Detective Paul Takemoto examined another BB near the same place and testified that he had to use a tool to pry it out. Like Officer Jones, he testified that the BB came from Shultz's back deck. He also testified that "if there's some amount of penetration, you know that either the pellet gun itself was fairly powerful or the actual air gun was fairly close." RP (Oct. 18, 2007) at 487.
On April 18, 2006, while Tartar was in his yard, Shultz backed out of his driveway, made his right hand into the shape of a gun, pretended to pull the trigger, and then blew on the end of his finger. Tartar took this as a threat because he had already been shot once. Shultz was charged with harassment, and the jury in this case found him guilty.
In the State's version of the facts, Shultz also told Tartar, "You're fucking dead." Br. of Respondent at 9 ( quoting RP (Oct. 17, 2006) at 272). But it is not clear from Tartar's testimony that Shultz said this. And in closing argument, the prosecutor told the jury that the second finger gun gesture was not accompanied by a verbal threat.
"The last charge, I'll spend a moment with, which is harassment. That is yet another incident of the finger gun. You know that it happened a while ago in the other evidence that you saw. That one came with a death threat as you learned from that. That happened in 2003. This one just happened with a gesture. No words this time." RP (Oct. 19, 2007) at 628.
The next day, Tartar was shot again when he walked onto his back deck at night. He was trying to lead his dogs outside when he made eye contact with Shultz. He heard a popping noise and then felt pain in his left arm. He testified that, "I looked down and there's blood running down my arm and on to the porch." RP (Oct. 16, 2006) at 161. Tartar saw Shultz run into his house and heard his back door shut. He also saw something in Shultz's hand, but it was too dark to see exactly what it was. The wound was in nearly the same place as his previous wound. A physician's assistant testified about treating the wound. The wound left a scar, which Tartar showed to the jury. Shultz was charged with second degree assault, and the jury in this case found him guilty.
On June 14, 2006, Shultz backed out of his driveway, slowed down in front of Tartar's house, set off Tartar's truck alarm, and then drove off at a high speed, running over a nearby traffic circle. Tartar ran outside and immediately checked his truck. He discovered a pellet hole in the tailgate. The owner of an auto body repair shop testified that the damage to the truck was over $500. Shultz was charged with second degree malicious mischief, and the jury in this case found him guilty.
The day after Shultz shot Tartar's truck, Tartar and another neighbor discovered a pellet gun in the shrubbery of the traffic circle Shultz had run over. Tartar called the police, and an officer recovered the gun. The gun's power was not tested, and no fingerprints were recovered from it. It was, however, admitted into evidence.
In an amended information, the State charged Shultz with one count of assault in the second degree (count 1 — for shooting Tartar with a BB gun on April 19, 2006), one count of malicious mischief in the second degree (count 2 — for shooting Tartar's truck on June 14, 2006), one count of malicious mischief in the third degree (count 3 — for shooting Tartar's kitchen window on March 23, 2006), and one count of harassment (count 9 — for threatening Tartar with a finger gun on April 18, 2006). Several police officers testified, as did many of Shultz's neighbors, including Tartar. Shultz also testified. In closing argument, defense counsel argued that Tartar had planted evidence and made up the events in the case because he disliked Shultz. The jury, however, found Shultz guilty of these four charges.
In the same information, the State also charged Shultz with five other counts of malicious mischief in the third degree based on damage to other neighbors' property and damage to the siding of Tartar's house. The two charges for damaging the siding of Tartar's house were dismissed because of the statute of limitations. The jury was unable to reach a verdict on the other charges. Shultz appeals the judgment and sentence.
Analysis
Deadly Weapon
We reject Shultz's contention that the State provided insufficient evidence to establish that the BB gun that he used to assault Tartar constituted a deadly weapon. There is sufficient evidence if, viewing the evidence in the light most favorable to the State, any rational trier of fact could find the crime's essential elements beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). The appellate court draws all reasonable inferences in the State's favor and interprets them most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). In claiming the evidence was insufficient, the defendant admits the truth of the State's evidence and all inferences reasonably drawn from it. Salinas, 119 Wn.2d at 201. Circumstantial and direct evidence are of equal weight upon review. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). A factfinder is permitted to draw inferences from circumstantial evidence provided these inferences are rationally related to the proven fact. State v. Bencivenga, 137 Wn.2d 703, 707, 974 P.2d 832 (1999).
A person is guilty of assault in the second degree if he assaults another with a deadly weapon. RCW 9A.36.021(1)(c). By statute, there are two categories of deadly weapons. RCW 9A.04.110(6). The first category includes weapons that are deemed to be deadly per se: explosives and firearms. State v. Carlson, 65 Wn. App. 153, 158, 828 P.2d 30 (1992). It is well established that BB guns are not firearms. See, e.g., Carlson, 65 Wn. App. 157 ("A BB gun is not an explosive nor is it a firearm.") The second category includes any weapon which, "under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm." RCW 9A.04.110(6). "Substantial bodily harm" is defined as "bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part." RCW 9A.04.110(4)(b). Whether a weapon is deadly under the circumstances in which it is used is a question of fact. Carlson, 65 Wn. App. at 160.
There was evidence that on previous occasions, Shultz had fired shots at Tartar's house, dog, and Tartar himself. These shots demonstrated the power of the BB gun under the circumstances in which Tartar was shot on April 19. The shot at Tartar's dog left a hole in its shoulder and caused it to "weep" blood. As for the shot near Tartar's door, Detective Takemoto testified that the BBs had embedded in the wall, needed to be pried out, and, based on the angle of penetration, concluded that it was a straight shot from Shultz's deck. He testified, "[I]f there's some amount of penetration, you know that either the pellet gun itself was fairly powerful or the air gun was fairly close." RP (Oct. 18, 2006) at 487. Another investigating officer, testifying about a different BB in Tartar's siding, stated that he could not remove it "without using a great deal of force." RP (Oct. 17, 2007) at 322. Both shots at Tartar caused him to bleed and scar.
Detective Takemoto also testified that a BB gun was capable of causing permanent injury. His opinion rested on his personal experience with BB guns, including his observation as a youth of one of his friends whose two front teeth were shattered by a BB gun.
Shultz objected to Detective Takemoto's testimony about whether a BB gun could cause substantial bodily arm, based on lack of foundation and expertise, and assigns error to the trial court's decision to overrule that objection. Shultz treats this issue only in passing, however, and cites no authority for his argument that the court should have excluded this testimony. "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).
Based on this evidence, it was reasonable to infer that the BB gun was powerful enough to cause substantial bodily harm, especially if the BB had hit another part of Tartar's body, such as an eye or tooth. The jury could have concluded that Shultz's BB gun was a deadly weapon because it was "readily capable of causing . . . substantial bodily harm" "under the circumstances in which it [was] used. . . ." RCW 9A.04.110(6); see also Carlson, 65 Wn. App. at 161 (an operative BB gun can be a deadly weapon, "especially if aimed between the eyes").
Shultz contends that the BB gun could not have caused substantial bodily harm under the circumstances because it failed to imbed in Tartar's skin. But the BB did not need to imbed in his skin for the gun to be a deadly weapon. "The test is not the extent of the wounds actually inflicted." State v. Cobb, 22 Wn. App. 221, 223, 589 P.2d 297 (1978). Instead, the test is whether the BB gun could have caused substantial bodily harm "under the circumstances in which it was used." RCW 9A.04.110(6). Here, the BB broke Tartar's skin and left a scar on his upper arm, close to his head. If Shultz's aim had been off, he easily could have struck Tartar's eyes or mouth.
Inferior Degree Offense
Shultz argues that the trial court erred by refusing to instruct the jury on the inferior degree offense of fourth degree assault on count 1, the charge involving the BB gun shot to Tartar's arm. We affirm the trial court's decision to instruct the jury only on second and third degree assault because the evidence did not support an inference that Shultz committed fourth degree assault.
The right to an instruction on an inferior degree offense is statutory. RCW 10.61.003 ("for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged . . . and guilty of any degree inferior thereto. . . ."); RCW 10.61.006 ("the defendant may be found guilty of an offense the commission of which is necessarily included within that with which he is charged"). Under State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978), a defendant must be granted a jury instruction for a lesser included or inferior degree offense if (1) all the elements of the lesser offense are necessarily included in the elements of the charged offense and (2) the evidence supports an inference that the lesser crime was committed.
Shultz and the State agree that the legal prong of the Workman test is satisfied in this case. The issue is whether the evidence supports an inference that Shultz committed only the inferior degree offense to the exclusion of the greater offense. State v. 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." State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 (1990). Since Shultz requested the instruction at trial, we must consider the evidence in the light most favorable to him. Fernandez-Medina, 141 Wn.2d at 455.
The trial court instructed the jury on second and third degree assault. A person is guilty of assault in the second degree if he or she "[a]ssaults another with a deadly weapon." RCW 9A.36.021(1)(c). A person is guilty of assault in the third degree if he or she, "[w]ith criminal negligence, causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm." RCW 9A.36.031(1)(d). "When a statute provides that criminal negligence suffices to establish an element of an offense, such element also is established if a person acts intentionally, knowingly, or recklessly." RCW 9A.08.010(d)(2). Assault in the fourth degree, on which the court refused to instruct the jury, occurs when a person "assaults another" "under circumstances not amounting to assault in the first, second, or third degree, or custodial assault." RCW 9A.36.041(1). Assault in the fourth degree, therefore, does not include causing bodily harm by means of a "weapon or other instrument or thing likely to produce bodily harm." RCW 9A.36.031(1)(d).
The trial court correctly refused to instruct the jury on assault in the fourth degree because there was no affirmative evidence that Shultz committed that crime. The assault charge was based on Tartar's allegation that Shultz shot him with a BB gun on April 19, 2006. Shultz denied assaulting Shultz with a BB gun or otherwise. If the jury had found that the BB gun was not a deadly weapon, it could have concluded that Shultz committed the inferior degree offense of third degree assault. There was no evidence, however, that Shultz somehow committed only a fourth degree assault, that is, an assault without an "instrument or thing likely to produce bodily harm." RCW 9A.36.031(1)(d). Shultz's denial that he shot Tartar is not evidence that "affirmatively establishes" his theory that he committed fourth degree assault. State v. Fowler, 114 Wn.2d at 67.
An analogous case and one that supports this conclusion is State v. Speece, 115 Wn.2d 360, 798 P.2d 294 (1990). In Speece, the defendant was charged with multiple counts of first degree burglary and the State alleged that he was armed with a deadly weapon at the time of the burglary. Speece's only defense at trial was that he did not commit the burglary, but he argued on appeal that the trial court erred by refusing to instruct the jury on the lesser included offense of second degree burglary. Being "armed with a deadly weapon" is an element of first degree burglary but not second degree burglary. See Speece, 115 Wn.2d at nn. 2, 3 (citing to former statutory definitions of first and second degree burglary). The Supreme Court rejected Speece's argument because "there is no affirmative evidence in the record that would support an inference that Speece was not armed during the burglary, once the jury found that he was, indeed, the burglar." Speece, 115 Wn.2d at 363. Similarly, in this case, there is no affirmative evidence that would support an inference that Shultz somehow assaulted Tartar without a BB gun.
Shultz cites to State v. Young, 22 Wash. 273, 276-77, 60 P. 650 (1900), a case decided over 100 years ago, in which the Supreme Court stated, "If there is even the slightest evidence that the defendant may have committed the degree of the offense inferior to and included in the one charged, the law of such inferior degree ought to be given." As just explained, there was not even the slightest evidence that Shultz assaulted Tartar without a BB gun.
Right to Bear Arms
Shultz next argues that his right to bear arms under the state constitution was violated by the many references to his ownership of firearms by witnesses and by the prosecutor in closing argument. Shultz did not object to any of the gun references that he complains about on appeal. We affirm on this issue because before trial, Shultz waived any objection to certain references to gun ownership and other references were relevant and admissible.
Shultz failed to object to any of the references to his gun ownership, thereby depriving "the trial court of an opportunity to prevent or cure the error." State v. Madison, 53 Wn. App. 754, 762, 770 P.2d 662 (1989). Pursuant to RAP 2.5(a)(3), to raise an error for the first time on appeal, the error must be manifest and truly of constitutional dimension. Shultz's claim fails this test.
The Washington State Constitution guarantees the right of the individual citizen to bear arms. Constitution article 1, section 24 provides in pertinent part, "The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired. . . ." Under State v. Rupe 101 Wn.2d 664, 707, 683 P.2d 571 (1984), a defendant is "entitled under our constitution to possess weapons, without incurring the risk that the State would subsequently use the mere fact of possession against him in a criminal trial unrelated to their use."
In Rupe, the court held that the defendant's constitutional rights were violated when, during the penalty phase of an aggravated first degree murder prosecution, the State attempted to draw adverse inferences from the defendant's constitutional right to possess legal weapons. The State attempted to use the mere fact of Rupe's possession of weapons against him in a criminal trial unrelated to their use. Rupe is distinguishable because in this case, Shultz waived any objection to certain references to his gun ownership and, as discussed below, the other references were related to Shultz's use of weapons, not the "mere fact of possession." Rupe 101 Wn.2d at 707.
The first reference to Shultz's gun ownership occurred during Tartar's testimony about Shultz's first finger gun gesture.
Q. How did you interpret the whole series of gestures that you just described?
A. To me that's — to me that's a threat, a threat to do bodily harm. Maybe I'm reading it wrong, but that's the way I read it.
Q. Okay. Did you have any information that the defendant actually might be able to do that, carry through on that threat?
A. Yes. I found out that he had loaded handguns in his residence.
RP (Oct. 16, 2006) at 143-44 (emphasis added). Shultz waived any objection to the admissibility of this testimony when the State sought to admit it before trial in a motion in limine. Clerk's Papers (CP) at 20 (included in the motion was the following: "Mr. Tartar was aware that defendant had guns in his house and defendant has told his [sic] that he has a concealed weapons permit. . . ."). Defense counsel told the trial court, "I have no objection to [the State's] motion." Id., at 8. Consequently, Shultz cannot now claim error with respect to Tartar's testimony. See State v. Thomas, 128 Wn.2d 553, 558, 910 P.2d 475 (1996) (any constitutional right can be knowingly, voluntarily, and intelligently waived). Moreover, the fact that Tartar knew Shultz owned firearms was relevant to the harassment charge because it established that his subjective fear of Shultz after the second finger gun gesture was reasonable. See State v. Ragin, 94 Wn. App. 407, 412, 972 P.2d 519 (1999) (State allowed to use the frightening stories Ragin revealed to the victim Dahl to provide context for Dahl's fear — "The jury was entitled to know what Dahl knew at the time Ragin threatened him to decide whether a reasonable person knowing what Dahl knew would believe Ragin could carry out the threats.").
The next reference to Shultz's gun ownership occurred when his former friend, Guillermo Diaz, testified that he had been to a shooting range with Shultz. This testimony was relevant to the assault charge. Shultz shot Tartar in the left arm on two separate occasions in the dark from a distance of one backyard away. Tartar testified that the second incident was exactly like the previous incident. On cross-examination, defense counsel pointed out that Tartar's BB wounds were "separated by very little distance." RP (Oct. 17, 2006) at 235. And during closing argument, defense counsel argued against Tartar's credibility based on the unlikely odds of Shultz being able to shoot him twice in nearly the same location in the dark.
The same thing happened in 2004 and it happened exactly the same way, in exactly the same situation and, guess what, he must be one fantastic shot in the dark because he hit him about an inch above his previous abrasion that he showed you.
Now, what — is that peculiar? Does that strike anybody as peculiar? What is the potential of that happening exactly the same? Blind luck in the dark? Within an inch?. . . . Really?
RP (Oct. 19, 2006) at 647. Therefore, unlike the gun evidence in Rupe, the fact that Shultz frequented a shooting range was relevant because it was evidence of his marksmanship. Evidence is relevant if it has "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401.
Diaz also testified that Shultz owned a semiautomatic gun and a revolver, and Detective Takemoto testified that when he searched Shultz's home, he found a box that originally held a pistol, firearm cleaning kits, earplugs, gun ownership documents, and an instruction manual for a firearm. The evidence of Shultz's ownership of guns was relevant because it tended to establish that he had placed ammunition in Tartar's yard, Nancy Lieurance's yard, and behind Tartar's truck. These discoveries of ammunition, while not the basis for any of the charges, were relevant because they demonstrated Shultz's ill will towards Tartar and gave further context for the jury to evaluate the threat Shultz made to Tartar. Shultz denied placing the ammunition on Lieurance and Tartar's properties and defense counsel suggested in closing argument that Tartar had planted the ammunition. He also told the jury that Tartar had "an instinct for producing" evidence. RP (Oct. 19, 2007) at 649. The evidence that Shultz owned guns was relevant to rebutting this attack on Tartar, as the prosecutor explained in her closing argument.
Diaz also testified that Shultz owned a pellet gun, but Shultz concedes that this testimony was relevant and admissible.
The prior argument said to you that a lot of things were peculiar, and one of the things that was peculiar was that Richard Tartar found bullets in his yard. Now, I think anybody would probably think it's peculiar that they're mowing their lawn or somebody else's lawn and you hear bump or crack and you reach down and there's a bullet down there. That is peculiar. What's more peculiar, more interesting, more corroborative, more conclusory here, is there's only one person that there's any evidence in this case who has access to bullets and ammunition and who uses them.
Richard Tartar was asked, do you have a gun? No. Nobody else was even asked that question. There's no evidence anybody else has one. But we do know the defendant has two. And we also know that during that search warrant, which I'll talk about again in a moment, ammunition boxes were found and gun boxes. Who is the only person in this whole case that would have bullets? Now, anybody can go buy them. You can make up whatever speculative — you know, maybe they fell out of a plane. I mean, there's all sorts of ridiculous things you could surmise, but the evidence is only he, in this case, has bullets.
RP (Oct. 19, 2006) at 659-60.
Shultz also argues that the prosecutor's statements about guns in closing argument were improper. The prosecutor told the jury, "He owns and has shown off to Guillermo Diaz not only his real guns, his firearms, which they went to the range and target shot together, but the defendant also showed off that he had an air gun. He had an air gun." Id. at 607. She also argued,
And what is Mr. Tartar busy doing? He's busy caring for his very ill mother who he had moved back in with to take care of in her late years. What's the defendant busy with? You didn't hear much about his having many activities. Goes to target practice and spends some time figuring out how Richard Tartar offended him this week.
Id. at 614-15. These comments were not improper. The prosecutor first reminded the jury that Diaz had testified that Shultz owned an air gun in addition to other guns. Shultz's ownership of an air gun was obviously relevant, and as discussed above, his ownership of other guns was relevant to whether Tartar's fear of Shultz was reasonable and tended to establish that he had dispersed the ammunition that Tartar discovered. The prosecutor's comment about Shultz going to target practice was relevant because it tended to establish that he was capable of shooting Tartar in the same place on two occasions in the dark, which defense counsel argued was highly unlikely.
Vouching
Shultz argues that Detective Bruce Larsen's testimony that Tartar "seemed to be pretty honest" constituted impermissible "vouching." He concedes that he failed to object to this testimony at trial, but argues that the court may still reverse because Detective Larsen's testimony amounted to a manifest constitutional error. We reject this argument because he fails to establish that he was actually prejudiced by Detective Larsen's comment.
Under RAP 2.5(a), "The appellate court may refuse to review any claim of error which was not raised in the trial court. . . ." There is an exception, however, for a "manifest error affecting a constitutional right." RAP 2.5(a)(3). Under State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007), "[t]he defendant must identify a constitutional error and show how the alleged error actually affected the defendant's rights at trial." "`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."`" Kirkman, 159 Wn.2d at 935 (citations omitted) (quoting State v. WWJ Corp., 138 Wn.2d 595, 602, 980 P.2d 1257 (1999)).
In Kirkman, the Supreme Court considered whether testimony from police officers and a medical doctor about the veracity of two child rape victims constituted improper opinion evidence. Defense counsel did not object to the testimony. The court concluded that the testimony was not improper because it "did not directly address credibility." Kirkman, 159 Wn.2d at 927. The court stated that "`[m]anifest error' requires a nearly explicit statement by the witness that the witness believed the accusing victim." Kirkman, 159 Wn.2d at 936. The Kirkman court also noted, "Testimony from a law enforcement officer regarding the veracity of another witness may be especially prejudicial because an officer's testimony often carries a special aura of reliability." Kirkman, 159 Wn.2d at 928.
The alleged vouching in this case occurred while the prosecutor questioned Detective Larsen.
Q. Do you remember Mr. Tartar's demeanor or mood when he talked to you about these events that had occurred to him?
A. He seemed very responsive to my questions, seemed very articulate about the events that happened and their sequence. And I felt he was — seemed to be pretty honest.
RP (Oct. 18, 2006) at 533. Though unsolicited, this is an "explicit statement by the witness that the witness believed the accusing victim." Kirkman, 159 Wn.2d at 936. The next inquiry is whether this testimony had "`practical and identifiable consequences in the trial of the case.'" Kirkman, 159 Wn.2d at 936 (quoting WWJ Corp., 138 Wn.2d at 603).
This same issue was decided in State v. Hughes, 118 Wn. App. 713, 77 P.3d 681 (2003). In that case, the prosecutor questioned a detective about a certain witness he had investigated, Berry, and asked him whether he knew what caused Berry to become more cooperative as the investigation proceeded. The detective gave a "nonresponsive answer that he believed Berry to be an honest person." Hughes, 118 Wn. App. at 726. Defense counsel did not object. The court of appeals held that the questioning did not amount to prosecutorial misconduct and the admission of the detective's testimony did not deny the defendant a fair trial.
The prosecutor asked an open-ended question to which Harper gave an improper, albeit unsolicited response. It is unfortunate that the detective chose to comment on Berry's truthfulness, but defense counsel could have remedied the situation by objecting and moving to strike. Hughes's argument fails.
Hughes, 118 Wn. App. at 726. We reach the same conclusion here. Like the detective's comment in Hughes, Detective Larsen's comment was unsolicited and defense counsel could have objected, moved to strike, and sought a curative instruction.
Shultz argues that Detective Larsen's statement was prejudicial because Tartar was the State's key witness and the trial was a credibility contest between Tartar and Shultz. Shutlz also notes that the jury did not convict him of all of the charges, demonstrating that there were weaknesses in the State's case. Several considerations undercut these arguments.
"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." Kirkman, 159 Wn.2d at 935. Here, the decision not to object appears to have been tactical because soon after Detective Larsen vouched for Tartar, defense counsel adroitly questioned the basis of his opinion. He asked Detective Larsen to describe Tartar, but he could not because he had only spoken with him on the telephone. Defense counsel then asked, "So your assessments of Mr. Tartar were simply from a telephone conversation?" RP (Oct. 18, 2006) at 536. Detective Larsen responded, "Two telephone conversations, yes." Id. at 536. Challenging the basis of Detective Larsen's comment was a legitimate alternative to making an objection.
Tartar testified extensively at trial and underwent cross-examination, allowing jury members to form their own opinions about his veracity. It is unlikely that Detective Larsen's stray, unsolicited comment, which was quickly challenged by defense counsel, caused Shultz actual prejudice. As the Kirkman court noted, "As to the victim, even if there is uncontradicted testimony on a victim's credibility, the jury is not bound by it. Juries are presumed to have followed the trial court's instructions, absent evidence proving the contrary." Kirkman, 159 Wn.2d at 928. Here, the jury was instructed that they were the "sole judges of the credibility of each witness." CP at 84. "Only with the greatest reluctance and with clearest cause should judges — particularly those on appellate courts — consider second-guessing jury determinations or jury competence." Kirkman 159 Wn.2d at 938.
Finally, the State's case against Shultz was strong with respect to the charges concerning Tartar. Police officers testified that previous shots at Tartar's house had come from Shultz's back porch, making Shultz the most likely person to have shot Tartar's kitchen window and his left shoulder. There was testimony from Diaz that Shultz frequented a shooting range, which was evidence of his marksmanship. There was extensive testimony establishing Shultz's hatred of Tartar. And on cross-examination, Shultz denied all the charges against him, but admitted that he had twice been convicted of assaulting Tartar (once for hitting him with a rake and once for throwing water on his dogs) and once convicted of harassing him in nearly the exact same manner as in this case.
Shultz relies on State v. Sutherby, 138 Wn. App. 609, 158 P.3d 91 (2007), a case in which the defendant was accused of first degree child rape and first degree child molestation, in addition to other charges. The victim was five at the time of the rape and molestation. The victim's mother testified about her methods for determining whether her daughter was telling the truth.
Q And have you taught [E.K.] about telling the truth and the consequences?
A Yes.
Q And how have you done that?
A How?
Q Yeah, what kind of conversations?
A Just — she just knows it's wrong to lie and that she will be punished and you get time outs. She knows it can hurt people and causes problems and it's for her safety too.
Q Can you tell when she has told a fib?
A Yeah.
Q How do you tell that?
A She makes kind of a — tries not to smile, but makes a half smile when she is telling a fib.
Q Ever seen that face or reaction when she was talking about what happened with [Sutherby]?
A No.
Sutherby, 138 Wn. App. at 616-17. The opinion does not state whether Sutherby objected to this testimony or asked the court to strike it. Moreover, this testimony is distinguishable from Detective Larsen's in several ways. First, Detective Larsen's comment was unsolicited, whereas in Sutherby, the prosecutor asked the victim's mother to describe how she knew when her daughter was lying. Second, the mother "gave [the jury] information that she claimed would enable the jurors to evaluate E.K.'s testimony." Sutherby, 138 Wn. App. at 617. Here, Detective Larsen merely mentioned that Tartar "seemed to be pretty honest." Finally, in Sutherby, the jury had the difficult task of determining a child's credibility, whereas here, the jury had to decide whether it believed the testimony of an adult.
Next, Shultz claims there were other instances of vouching and that they can be raised for the first time on appeal. We conclude that the portions of testimony that Shultz cites to do not constitute vouching. Even assuming they did, he failed to object, and any improper testimony could have been cured.
Shultz claims that Officer Jones, Detective Takemoto, and Detective Larsen improperly vouched for Tartar's credibility by testifying about the sufficiency of the evidence needed to file a police report and obtain a search warrant. Shultz cites to over thirty pages of Officer Jones' testimony in which he described how he documents complaints, his procedures for determining whether a crime has occurred and who the suspects are, and how those procedures were used in this case. Detective Takemoto testified about the process of obtaining and executing a search warrant for Shultz's house. He also testified that the SWAT (Special Weapons and Tactics) team executed the warrant because there was evidence that Shultz used a weapon against Tartar. Shultz also cites to a portion of Detective Larsen's testimony in which he explains that based on his investigation, he "put the information together and sent it down to the King County Prosecutor's Office for a filing decision regarding Malicious Mischief 2." RP (Oct. 18, 2007) at 535-36. Shultz alleges that these were all incidents of improper vouching, but he failed to object to any of this testimony on that basis.
This was not improper opinion evidence because none of these witnesses stated that he believed Shultz was guilty or that Tartar was credible. "In some instances, a witness . . . is merely stating the obvious, such as when a police officer testifies that he arrested the defendant because he had probable cause to believe he committed the offense." Sutherby, 138 Wn. App. at 617. Such is the case with this testimony. Assuming that any of this testimony was improper, "defense counsel could have remedied the situation by objecting and moving to strike." Hughes, 118 Wn. App. at 726.
Shultz also claims that the prosecutor impermissibly vouched for Tartar's credibility in her closing argument.
As Officer Jones testified, it is the police department's duty to investigate when something comes in that could be a crime. However, what he also testified to is that they may or may not make a report, and they certainly have to decide whether there's evidence of a crime sufficient to submit it for charging. A police officer has to decide first, if something even happened, and second if there's a crime. These are charged. That's important. That refutes the police officers being dupes for, oh, it's Richard Tartar, he just wants to talk to cops.
RP (Oct. 18, 2007) at 624. These statements do not constitute improper opinion evidence. "[P]rejudicial error does not occur until it is clear that the prosecutor is not arguing an inference from the evidence, but is expressing a personal opinion." State v. Swan, 114 Wn.2d 613, 664, 790 P.2d 610 (1990) (footnote omitted). The prosecutor did not state that it was her personal opinion that Tartar was honest. Instead, she repeated evidence that established Tartar's credibility and explained how it refuted Shultz's argument that Tartar made up the story and fooled the officers into believing him. Sufficiency of the Evidence
Finally, Shultz contends that the evidence is insufficient to establish that he committed harassment by making a "finger gun" gesture at Tartar. Under RCW 9A.46.020(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
. . .
(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 . . ."
Under the same statute, the State must prove that "[t]he person by words or conduct places the person threatened in reasonable fear that the threat will be carried out." RCW 9A.46.020(1)(b).
With respect to the harassment charge, Tartar testified as follows:
Q. You talked previously about what we might short-hand as a finger gun that the defendant aimed, shot at you, and then blew on. Did that occur again in April this year?
A. Yes, it did.
Q. What happened that time?
A. Same thing. He backed out of his driveway, started hearing southbound down our — down 13th, slowed down in front of my house. I was out in the yard and he did the — did the finger gun routine again.
Q. And blew on it?
A. Blew on it.
Q. What did you take that gesture to mean?
A. I took it as another threat.
Q. And how did you feel about it? Did you feel he might actually carry it out?
A. Well, I'd been shot once. I figured — yeah, I felt threatened.
Q. What — I know this might seem obvious, but what part of you did you feel threatened about?
A. Just my whole — my whole being.
Q. Your safety?
A. My safety.
Q. Did you feel that you might actually sustain some injury as a result of the gesture the defendant had made again?
A. Yes, I did.
Q. Did you call the police about that incident?
A. Yes, I did.
RP (Oct. 16, 2007) at 156-58. Tartar testified that he knew Shultz "had loaded handguns in his residence." Id. at 144. Shultz had also shot him before and hit him with a rake.
Tartar testified that when he went into his backyard, he had gotten into the habit of looking to his left towards Shultz's house because "I'm scared. I don't know what he's going to do. Like I said, I've been shot once." Id. at 160. Given all of this evidence, the State clearly provided sufficient evidence that Shultz's finger gun gesture placed Tartar in reasonable fear that he would be shot, and in fact, he was shot after the threat was made.
Shultz relies on State v. C.G., 150 Wn.2d 604, 80 P.3d 594 (2003), which stands for the proposition that the victim must fear the actual threat made by the defendant. In C.G., it was insufficient proof to sustain a conviction for felony harassment, which requires a threat to kill, for the victim to merely fear that he might be harmed. This case, however, involves harassment, which requires only a threat to "cause bodily injury." RCW 9A.46.020(1). Applying C.G. to this case, Tartar interpreted Shultz's finger gun gesture as a threat that he would shoot him again. Given what had happened before, the jury could have found that Tartar reasonably feared Shultz would cause him bodily injury.
For the foregoing reasons, we affirm.
WE CONCUR: