State Of Washington v. Than Dinh Le ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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STATE OF WASHINGTON, C3 *' •,.
No. 72166-6-1
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UNPUBLISHED OPINION
THAN DINH LE, KD
Appellant. FILED: November 16, 2015
Trickey, J. — Than Dinh Le challenges his jury convictions for delivery of a
substance in lieu of a controlled substance and bail jumping. Because insufficient
evidence supported the bail jumping conviction, we reverse that conviction and
remand for resentencing. In all other respects, we affirm.
FACTS
At approximately 1:00 p.m. on April 13, 2012, Officer Emily Clark of the
Seattle Police Department was working as an undercover narcotics buyer. Officer
Clark approached a man and asked "if he had anything."1 The man asked Clark
how much she was looking for, and Clark said she "had 30," meaning 30 dollars.2
The man said, "Hold on a minute" and began walking away, motioning for Clark to
follow him.3 The man introduced Clark to another man, later identified as Le. Le
asked "how much [Clark] had," and when Clark repeated that she "had 30," Le told
1Report of Proceedings (RP) (May 5, 2014) at 13.
2 RP (May 5, 2014) at 14.
3 RP (May 5, 2014) at 15-16.
No. 72166-6-1/2
Clark to follow him.4 Le made a brief phone call using a nearby pay phone and
told Clark "his guy was coming."5
A few minutes later, a van pulled up. Le entered and exited the van, and
asked Clark if she had the money. Le led Clark around the corner of a restaurant,
out of public view, and showed her a folded piece of white paper containing two
off-white rock-like substances that appeared to Clark to be crack cocaine. Le said,
"I have the drugs here. Do you have the money?"6 Le gave Clark the two
substances and she gave him the money. Officers arrested Le and recovered the
money Clark had given him. The Washington State Patrol Crime Laboratory
analyzed the two substances and determined they contained only aspirin and
caffeine.
On June 3, 2013, the State charged Le with one count of delivery of a
substance in lieu of a controlled substance.7 On August 14, while Le was in
custody, the trial court entered a scheduling order notifying Le that he was required
to be present for all hearings or a bench warrant would be issued for his arrest. Le
was subsequently released from custody and failed to appear for his omnibus
hearing on December 13. The State amended the information to add one count of
bail jumping. Ajury convicted Le as charged. Le appeals.
4RP(May5, 2014) at 17-18.
5 RP (May 5, 2014) at 19-20.
6 RP (May 6, 2014) at 87.
7The State also charged Le with one count of possession of cocaine, involving a separate
incident, but ultimately elected not to proceed to trial on that charge.
No. 72166-6-1/3
ANALYSIS
Bail Jumping
Le contends insufficient evidence supports the conviction for bail jumping.
Because the State failed to prove an essential element of the crime, that Le was
"released by court order," we agree. RCW 9A.76.170(1).
A person is guilty of bail jumping if he or she fails to appear for a court
appearance after "having been released by court order or admitted to bail with
knowledge of the requirement of a subsequent personal appearance before any
court of this state." RCW 9A.76.170(1). Thus, the three elements the State is
required to prove are as follows: (1) the defendant was held for, charged with, or
convicted of a particular crime; (2) the defendant was released by court order or
admitted to bail with the requirement of a subsequent personal appearance; and
(3) the defendant knowingly failed to appear as required. State v. Williams, 162
Wash. 2d 177, 183-84, 170 P.3d 30 (2007). Here, as to the second element, the to-
convict instruction referred only to a release by court order, omitting any mention
of an admission to bail.8 Under the law of the case doctrine, the State was thus
8 Instruction 12 read as follows:
To convict the defendant of the crime of Bail Jumping, as charged
in Count II, each of the following elements of the crime must be proved
beyond a reasonable doubt:
(1) That on or about December 13, 2013, the defendant failed to
appear before a court;
(2) That the defendant was charged with Violation of the Uniform
Controlled Substances Act - Delivery of a Material in Lieu of a Controlled
Substance;
(3) That the defendant had been released by court order with
knowledge of the requirement of a subsequent personal appearance
before that court; and
(4) That any of these acts occurred in the State of Washington.
No. 72166-6-1/4
required to prove that Le had been released bycourtorder. See State v. Hickman,
135 Wash. 2d 97, 99, 954 P.2d 900 (1998).
Evidence is sufficient to support a conviction if, viewed in the light most
favorable to the State, it permits any rational trier of fact to find the essential
elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wash. 2d
192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the
State's evidence and all inferences that reasonably can be drawn therefrom."
Salinas, 119 Wash. 2d at 201. We defer to the trier of fact on issues of conflicting
testimony, credibility of witnesses, and the persuasiveness of the evidence. State
v. Camarillo, 115 Wash. 2d 60, 71, 794 P.2d 850 (1990).
Here, the evidence was insufficient to establish that Le had been released
by court order. The State offered a certified copy of the August 14 order notifying
Le that he was required to appear at all hearings. The order reflected that Le was
in custody at the time. The State also offered a recording of the December 13
omnibus hearing in which Le failed to appear and a warrant was issued for his
arrest. However, the State did not offer any court order entered between August
14 and December 13 releasing Le from custody.
Le testified that he was in jail at the time the August 14 order was entered.
He testified that he was released from the jail sometime in November and was
If you find from the evidence that each of these elements has been
proved beyond a reasonable doubt, then it will be your duty to return a
verdict of guilty as to Count II.
On the other hand, if, after weighing all ofthe evidence, you have a
reasonable doubt as to any one ofthese elements, then it will be your duty
to return a verdict of not guilty as to Count II.
Clerk's Papers (CP) at 72.
No. 72166-6-1/5
given a copy ofthe order with the omnibus hearing date but that he lost it and did
not go to the hearing.
The State argues that a reasonable juror could have inferred from all ofthe
evidence presented, including Le's testimony, that Le had been released by court
order because "how else could Le have been released . . . unless authorized by
the court?"9 But RCW 9A.76.170(1) makes clear that not all releases occur
pursuant to court order. There is no evidence in the record, direct or circumstantial,
regarding the means by which Le was released from custody. While a jury could
have reasonably inferred from Le's testimony that he was released by court order,
it would have been equally reasonable to infer that Le was released through
admission to bail. Because the State did not present evidence sufficient to
establish that Le had been released by court order, we reverse his bail jumping
conviction.
The State argues that even if the jury concluded that Le was released
through admission to bail, this would still constitute release by a court order
because "bail is set by the court."10 However, this argument is only briefly
mentioned in a footnote. Passing treatment of an issue or lack of reasoned
argument is insufficient to merit judicial consideration. State v. Johnson, 119
Wash. 2d 167, 171, 829 P.2d 1082 (1992); see also State v. Johnson, 69 Wash. App.
189, 194 n.4, 847 P.2d 960 (1993) (court generally declines to address the merits
of an argument mentioned only in a footnote).
9 Br. of Resp't at 11.
10 Br. of Resp'tat12n.8.
No. 72166-6-1/6
Opinion Testimony
Le argues that statements made by Officer Clark during her testimony
constituted an impermissible opinion on guilt that deprived him of a fair trial.
Generally, no witness may offer an opinion regarding the defendant's guilt or
veracity. State v. Kirkman, 159 Wash. 2d 918, 927, 155 P.3d 125 (2007). "Such
testimony is unfairly prejudicial to the defendant because it invades the exclusive
province of the jury." Kirkman, 159 Wash. 2d at 927.
At trial, Officer Clark testified extensively regarding her experience as an
undercover officer. She discussed a nationwide training program she attended
regarding undercover operations:
Four of the days are actual scenarios where we go and pretend that
we're actually buying narcotics or acting like a prostitute with
detectives, as they are the monitors. The classroom portion of it is
mostly undercover safety that we talk about, because we are now
plavina a role of a criminal, so we have to talk about how criminals
act, theway - even down to the way they stand, the way they dress.
So it's talking about how to change your mindset to, now, we are not
portraying as police officers. We are portraying the bad guv and how
to get what we need to catch the bad guv in this role.'111
Defense counsel said, "Your Honor, I'm going to object to the use of the term 'bad
guy.'"12 The trial court overruled the objection.
Le contends that Officer Clark's statements "improperly expressed her
opinion that Le was a bad guy, a criminal, and therefore guilty."13 But Officer Clark
did not use the terms "criminal" and "bad guy" in reference to Le. Rather, Officer
" RP (May 5, 2014) at 7 (emphasis added).
12 RP (May 5, 2014) at 7.
13 Br. of Appellant at 21.
No. 72166-6-1/7
Clark used the terms to explain that police officers mimic criminal behavior in order
to conduct effective undercover operations.
Moreover, any error here would be harmless. A constitutional error is
harmless beyond a reasonable doubt if the untainted evidence is so overwhelming
that it necessarily supports a finding ofguilt. State v. Easter, 130 Wash. 2d 228, 242,
922 P.2d 1285 (1996). Here, we are satisfied the jury would have found Le guilty
of delivery of a substance in lieu of a controlled substance regardless of Officer
Clark's comments. The evidence was uncontroverted that Le gave Clark what he
represented to be drugs in exchange for money, and that the substances were not
actually drugs. The challenged statements did not deprive Le of a fair trial.
Disparagement of Defense Counsel
Le contends that the prosecutor committed misconduct by disparaging the
role of defense counsel in closing argument by comparing the defense theory to
"Alice's rabbit hole" and describing it as "a conspiracy" and outside the "realm of
reasonable thought."14 To establish prosecutorial misconduct, the defendant
"bears the burden of establishing the impropriety of the prosecuting attorney's
comments and their prejudicial effect." State v. Brown, 132 Wash. 2d 529, 561, 940
P.2d 546 (1997). If, as here, a defendant timely objects to the prosecutor's
statements, the defendant must show that "'there is a substantial likelihood [that]
the instances of misconduct affected the jury's verdict'" in order to establish
14 RP (May 6, 2014) at 130-31.
No. 72166-6-1/8
prejudice. State v. Magers. 164 Wash. 2d 174, 191, 189 P.3d 126 (2008) (alteration
in original) (quoting State v. Pirtle, 127Wn.2d 628, 672, 904 P.2d 245 (1995)).
A prosecutor has latitude in closing argument to draw and express
reasonable inferences from the evidence. State v. Harvey, 34 Wash. App. 737, 739,
664 P.2d 1281 (1983). It is not misconduct for the prosecutor to argue that
evidence does not support the defense theory or to fairly respond to defense
counsel's argument. State v. Russell, 125 Wash. 2d 24, 87, 882 P.2d 747 (1994).
However, "[i]t is improper for the prosecutor to disparagingly comment on defense
counsel's role or impugn the defense lawyer's integrity." State v. Thorgerson, 172
Wash. 2d 438, 451, 258 P.3d 43 (2011). We review allegedly improper comments in
the context ofthe entire argument, the issues in the case, the evidence addressed
in the argument, and the instructions given. Russell, 125 Wash. 2d at 85-86.
In closing argument, defense counsel argued that Officer Clark "put on a
costume, put on a wig, painted her face, painted her fingernails, presented herself
as a fellow drug user on this day, and tempted my client with $30."15 Defense
counsel also argued that Clark "obviously has a very strong bias against this
specific type of person, a person who is homeless, who is on the street, who is a
drug addict" and "you certainly can't let her biases and beliefs impact you as
jurors."16 Defense counsel concluded, "I should tell you that, that, you know, that's
15 RP (May 6, 2014) at 120.
16 RP (May 6, 2014) at 128.
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not appropriate to be biased against somebody because of their circumstances in
life."17
In rebuttal, the prosecutor stated:
Defense is basically either claiming one of two things with respect to
the drug charge, that this is either a conspiracy or a huge coincidental
misunderstanding.
With respect to the conspiracy, basically, you'd have to believe that
Officer Clark, because of some latent biases which didn't appear to
come out when she was on the stand, was so jilted towards Mr. Le
that she'd be setting him up for a crime like this ....
That is wholly unreasonable and, if you want to follow Defense down
Alice's rabbit hole through that line of argument [18]
Defense counsel objected, arguing the prosecutor's comments disparaged the role
of defense counsel. The trial court overruled the objection. The prosecutor
continued, "If you want to go down that route, well, that's your prerogative, but in
no reasonable realm ofthought is that going to be possible."19
The State concedes that the prosecutor"could have expressed his rebuttal
argument more artfully, or perhaps in more measured tones," but that the
comments did not rise to the level of prosecutorial misconduct.20 We agree in both
respects. While the prosecutor's statements were unnecessarily pejorative, the
purpose of the statements was to point out that the defense theory was not
supported by the evidence. Moreover, as discussed above, given the
17 RP (May 6, 2014) at 128.
13 RP (May 6, 2014) at 131.
19 RP (May 6, 2014) at 131.
20 Br. of Resp't at 22.
No. 72166-6-1/10
overwhelming evidence of guilt, Le fails to show that there was a substantial
likelihood that the statements affected the jury's verdict.
The case Le relies on, State v. Thorgerson, 172 Wash. 2d 438, 258 P.3d 43
(2011), is distinguishable. In Thorgerson, the Washington Supreme Court held
that a prosecutor "impugned defense counsel's integrity" by "referring to his
presentation of his case as 'bogus' and involving 'sleight of hand'" because these
terms implied "wrongful deception or even dishonesty in the context of a court
proceeding." 172 Wash. 2d at 451-52. Here, in contrast, the prosecutor did not
accuse defense counsel ofdeceiving the jury, but instead implied that the defense
theory was unreasonable based on the evidence.
Reasonable Doubt Instruction
Le claims that that the instruction defining reasonable doubt as a doubt"for
which a reason exists" was constitutionally deficient because it required the jury to
articulate a reason for having a reasonable doubt.21 Relying on State v. Emery,
174 Wash. 2d 741, 760, 278 P.3d 653 (2012), Le also argues that the instruction
resembles the improper "'fill in the blank'" arguments that may constitute
prosecutorial misconduct.
At trial, the court instructed the jury on reasonable doubt using the
Washington Pattern Jury Instruction: Criminal (WPIC) 4.01:
The defendant has entered a plea of not guilty. That plea puts
in issue every element of the crime charged. The State is the plaintiff
and has the burden of proving each elementofeach crime beyond a
reasonable doubt. The defendant has no burden of proving that a
reasonable doubt exists.
21 CP at 63.
10
No. 72166-6-1/11
A defendant is presumed innocent. This presumption
continues throughout the entire trial unless during your deliberations
you find it has been overcome by the evidence beyond a reasonable
doubt.
A reasonable doubt is one for which a reason exists and may
arise from the evidence or lack of evidence. It is such a doubt as
would exist in the mind of a reasonable person after fully, fairly, and
carefully considering all ofthe evidence or lack ofevidence. If, from
such consideration, you have an abiding belief in the truth of the
charge, you are satisfied beyond a reasonable doubt.[22]
Atrial court is required to use WPIC 4.01 to instruct juries on the burden of proof
and the definition of reasonable doubt. State v. Bennett, 161 Wash. 2d 303, 318,165
P.3d 1241 (2007). Our Supreme Court recently reaffirmed that WPIC 4.01 is "the
correct legal instruction on reasonable doubt" and rejected any suggestion that
WPIC 4.01 requires a jury to articulate a reason for having a reasonable doubt or
is akin to an improper "fill in the blank" argument. State v. Kalebaugh, 183 Wash. 2d
578, 585-86, 355 P.3d 253 (2015).
Cumulative Error
Finally, Le contends that cumulative error prejudiced the outcome of the
trial. The cumulative error doctrine applies when several errors occurred at the
trial court thatwould not merit reversal standing alone, but in aggregate effectively
denied the defendant a fair trial. State v. Hodges, 118 Wash. App. 668, 673-74, 77
P.3d 375 (2003). Though we reverse Le's bail jumping conviction for insufficient
evidence, Le fails to establish that his delivery conviction was tainted by any
prejudicial error. As such, his claim of cumulative error fails.
22 CP at 63 (emphasis added).
11
No. 72166-6-1/12
We reverse Le's conviction for bail jumping and remand to the trial court for
resentencing. In all other respects, we affirm.
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