State Of Washington v. Job M. Edwards ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
March 1, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 45764-4-II
Respondent, UNPUBLISHED OPINION
v.
JOB M. EDWARDS,
Appellant.
BJORGEN, A.C.J. — Job Mitchell Edwards appeals his convictions for unlawful
imprisonment, felony harassment, possession of a controlled substance with intent to distribute,
and unlawful use of a building for drug purposes. He also appeals nine firearm enhancements of
which three are attached to each conviction for unlawful imprisonment, felony harassment, and
possession of a controlled substance with intent to distribute.
Job argues that (1) the trial court erred when it declined to issue his requested instruction
No. 45764-4-II
on self-defense of persons and property, WPIC 17.02,1 on the unlawful imprisonment charge, (2)
there is insufficient evidence to uphold his convictions and firearm enhancements, (3) it was
improper for the trial court to allow evidence of his prior acts of selling drugs without conducting
an ER 404(b) analysis, (4) the trial court abused its discretion when it found evidence of a gas
mask, bullet-resistant vest, and a knife relevant to his charges, and (5) the prosecutor committed
prosecutorial misconduct when he made several improper comments during closing argument
and rebuttal.
We hold that (1) the trial court erred by declining to instruct on WPIC 17.02 on the
unlawful imprisonment charge when substantial evidence in the record supported that self-
defense theory, (2) sufficient evidence supports all the remaining convictions and firearm
enhancements, (3) the trial court erred by allowing evidence of Job’s prior acts of selling, but
such error was harmless, (4) the gas mask and bullet-resistant vest were not relevant, but any
error in admitting this evidence was harmless, (5) the knife was relevant, and (6) although the
prosecutor’s comments were improper, a jury instruction would have cured any prejudice, and
Job is deemed to have waived any error.
Accordingly, we (1) reverse and vacate Job’s conviction of unlawful imprisonment and
three firearm enhancements attached to that conviction and (2) affirm Job’s remaining
convictions and six of the firearm enhancements.
1
11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL § 17.02, at
253 (3d ed) (2008) (WPIC).
2
No. 45764-4-II
FACTS
Job, his brother, Michael Edwards, and his brother’s girlfriend, Krystal Freitas, all lived
together in a split level house.2 Michael and Freitas lived upstairs, while Job lived downstairs.
All three were involved in a “business” of selling oxycodone. Report of Proceedings (RP) at
156-57. The three would combine their pills, and Michael and Freitas would then sell them to
customers.
On October 25, 2012, Freitas and Colton Geeson arranged a deal for Freitas to sell 50
oxycodone pills to Geeson. Before arriving at the house, Geeson informed Freitas that he was
bringing “DJ”3—a person whom Freitas had never met and who would be buying the pills.
Report of Proceedings (RP) at 165, 172-73. Upon DJ and Geeson’s arrival, Michael and Freitas
had them come inside to the upstairs portion of the home where Michael and Freitas resided.
When Freitas asked for the money, DJ responded that he wanted to see the pills, which
Freitas showed him. DJ then pulled his .45 caliber Taurus handgun and put it to Michael’s head,
demanding the pills. Michael and DJ immediately engaged in a struggle, and Michael screamed
for help from Job who was downstairs in his bedroom. Job grabbed his .40 caliber Glock
handgun and met DJ on the stairs. As DJ raised his right arm, Job fired several shots into DJ,
killing him.
2
We refer to Job and his brother by their first names because they share the same last name. No
disrespect is intended.
3
His true name was Donald Thomas, but throughout the trial he was referred to as “DJ.” RP at
323. We continue to use DJ throughout the opinion for consistency with the record and the
parties’ briefs. No disrespect is intended.
3
No. 45764-4-II
Shortly after the bullets were fired, Michael retrieved his Benelli 12 gauge shotgun from
his bedroom and pointed it at Geeson. Michael told Geeson, “I got to kill you now. I’m sorry. I
got to.” RP at 99. Although the evidence conflicts, some suggests Job was present or heard this
threat when it was made.4 Geeson then stripped off some of his clothing and showed Michael
that he was unarmed. Michael then went downstairs. Geeson went outside through a door on the
top floor and told an individual next door to call the police. Michael came back upstairs, pointed
the shotgun at Geeson, and told him to get back inside. Either Michael or Job then held Geeson
at gun point inside the home while Geeson proposed that he would take DJ’s body and would
never tell the police about the incident.
Agreeing to the proposal, Michael instructed Job to hold Geeson at gunpoint while
Michael dragged DJ’s body downstairs toward the garage in their home. Then, after retrieving
DJ’s Taurus handgun from his body, Michael led Geeson outside with the handgun to retrieve
DJ’s car and pull it into their garage. Job opened the garage for Geeson to pull in the car,
pointing his Glock handgun at Geeson and waving him into the garage. After Geeson pulled the
car in, the garage door would not close. Geeson then ran away through the garage opening
without pursuit by Job or Michael.
Geeson eventually alerted someone, who called the police and reported the incident.
Michael called the police as well. Police later found Michael’s Benelli shotgun, Job’s Glock
handgun, DJ’s Taurus handgun, and also an SKS assault rifle in Job’s bedroom. Police also
4
Geeson testified at trial that Job never threatened to kill him and that Job was not present when
the threat was made. Les Bunton, a detective with the Lakewood Police Department, who
testified to the content of Job’s post-arrest interview, said that Job told him that “Michael was
telling Colton that he could not leave, and they were gonna [sic] have to kill him.” RP at 324,
328.
4
No. 45764-4-II
found a prescription bottle dated October 22, 2012 containing 30 oxycodone pills with Job’s
identifying information on it.
The jury found Job guilty of unlawful imprisonment, felony harassment, possession of a
controlled substance with the intent to distribute, and unlawful use of a building for drug
purposes. The jury also entered verdicts for nine firearm enhancements of which three are
attached to each conviction for unlawful imprisonment, felony harassment, and possession of a
controlled substance with the intent to distribute. Job appeals, claiming several substantive and
procedural errors.
ANALYSIS
I. FAILURE TO INSTRUCT ON WPIC 17.02
Job argues that his unlawful imprisonment conviction should be reversed because the trial
court erred in denying the instruction he requested based on WPIC 17.02. For the reasons below,
we agree that Job was entitled to have WPIC 17.02 submitted to the jury, since substantial
evidence in the record supported that self-defense theory.
Job asked the trial court to issue the following instruction based on WPIC 17.02:
It is a defense to a charge of Unlawful Imprisonment that the force used was
lawful as defined in this instruction
The use of force upon or toward the person of another is lawful when used
by a person who reasonably believes that he is about to be injured or by someone
lawfully aiding a person who he reasonably believes is about to be injured in
preventing or attempting to prevent an offense against the person, and when the
force is not more than is necessary.
The use of force upon or toward the person of another is lawful when used
in preventing or attempting to prevent a malicious trespass or other malicious
interference with real or personal property lawfully in that person’s possession, and
when the force is not more than is necessary.
The person using the force may employ such force and means as a
reasonably prudent person would use under the same or similar conditions as they
appeared to the person, taking into consideration all of the facts and circumstances
known to the person at the time of the incident.
5
No. 45764-4-II
The State has the burden of proving beyond a reasonable doubt that the force
used by the defendant was not lawful. If you find that the State has not proved the
absence of this defense beyond a reasonable doubt, it will be your duty to return a
verdict of not guilty as to this charge.
Clerk’s Papers (CP) at 750.
The trial court denied this instruction stating, “I think I have got an obligation not to
confuse them.” RP at 481
Because if you look at just the heading of 17.02, it’s defense of self, others
or property defense, as opposed to 17.03, it’s lawful force, detention of a person.
So 17.03 really applies to [Geeson] because that’s who alleged to be the victim of
the kidnapping. And 17.02 is defending self, others or properties which applies to
CJ [sic].
So I think that confuses the jury, to give 17.02 as well as 17.03, so that’s
my inclination, is to give that one.
RP at 481. Later, the court expanded on its reasoning for denying the WPIC 17.02 instruction.
17.02 is the self-defense instruction. And as I indicated, I gave 17.03 plus
some of the instructions that go with 17.02 and 17.03.
With regard to that lawful instruction, I am convinced the more I look at
that WPIC instruction that that instruction is not applicable to this case and it' s
actually, if you read the instruction, that instruction alone, it's kind of a redundant
instruction. It really doesn't tell you anything.
RP at 500.
The trial court instead instructed the jury as follows, based on WPIC 17.03:
It is a defense to a charge of . . . Felony Harassment that the force used was lawful
as defined in this instruction.
A person who lawfully possesses a building may use force to detain someone who
unlawfully enters or remains in the building when:
(1) it is reasonably used for that purpose; and
(2) the manner and duration of such detention is reasonable to investigate the
reason for the detained person's presence on the premises; and
(3) the premises in question did not reasonably appear to be open to members of
the public; and
6
No. 45764-4-II
(4) the person using the force employs such force and means as a reasonably
prudent person would use under the same or similar conditions as they appeared to the
person, taking into consideration all of the facts and circumstances known to the person
at the time of and prior to the incident.
The State bears the burden of proving beyond a reasonable doubt that the force
used by the defendant was not lawful. If you find that the State has not proved the
absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict
of not guilty as to this charge.
CP at 703.
A defendant is entitled to have his or her theory of the case submitted to the jury under
appropriate instructions when substantial evidence in the record supports that theory. State v.
Knutz, 161 Wn. App. 395, 403, 253 P.3d 437 (2011). The State argues that the trial court
properly made a determination that the facts applied more closely to self-defense on the shooting
(DJ), not on the detaining of a person (Geeson). Therefore, the State contends, Job was still able
“to argue his theory of the case, which was that he was not guilty of felony harassment and
kidnapping because he was using lawful force to detain [Geeson] as someone who was
attempting to rob them.” Br. of Resp’t at 18. We disagree.
Under these facts, DJ’s pulling a gun and attempting to burglarize and possibly kill
Michael and Freitas supplied the main theory of self-defense which could justify Job’s use of
force to keep Geeson in the house (a WPIC 17.02 theory)—not that Geeson had just unlawfully
trespassed into the home and Job was detaining him to investigate his presence there (a WPIC
17.03 theory). Job’s self-defense theory could have been that he reasonably feared for
Michael’s, Freitas’s, and his own life and that he continued to fear while he had his gun pointed
at Geeson throughout the incident. Arguably, after Geeson stripped and showed that he was
unarmed, the threat of harm was alleviated and a WPIC 17.02 theory became more remote.
7
No. 45764-4-II
However, there was still substantial evidence for a juror to believe that the dangers associated
with the immediate aftermath of this armed robbery warranted Job in using the amount of force
that he did against Geeson: not to merely detain an intruder, but to use necessary force to protect
himself, Michael or Freitas.
Furthermore, after Job’s defense counsel offered the WPIC 17.02 instruction, the
prosecutor agreed not to object. The prosecutor specifically stated that he did not object to the
WPIC 17.02 instruction because he “would feel like an absolute fool if [an appellate court] told
us, ‘You should have used both instructions.’” RP at 480-81. Despite the prosecutor’s
insistence, the trial court stated it would still confuse the jury to instruct on both WPIC 17.02 and
WPIC 17.03 and denied the instruction. However, we do not believe it was confusing to instruct
on both WPIC 17.02 and WPIC 17.03, since each instruction applied to a different self-defense
theory arguably supported by the evidence.
Substantial evidence in the record supported a WPIC 17.02 theory of the case, and
instructing on both WPIC 17.02 and WPIC 17.03 would not have been unduly confusing.
Accordingly, we hold that the trial court abused its discretion in refusing the instruction based on
WPIC 17.02.
An error affecting a defendant’s self-defense claim is constitutional in nature and requires
reversal, unless it is harmless beyond a reasonable doubt. State v. Arth, 121 Wn. App. 205, 213,
87 P.3d 1206 (2004). The trial court’s refusal to give the requested instruction prevented Job
from arguing his theory of self-defense under WPIC 17.02 and was thus not harmless beyond a
reasonable doubt. We therefore reverse the unlawful imprisonment conviction and the three
firearm enhancements that were attached to that conviction.
8
No. 45764-4-II
II. SUFFICIENCY OF EVIDENCE
Job argues that there is insufficient evidence to support his remaining convictions and
some of the attached firearm enhancements.5 We disagree.
1. Standard of Review
Evidence is sufficient to support a conviction or sentencing enhancement 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. McPherson, 186 Wn. App. 114, 117, 344 P.3d
1283, review denied, 183 Wn.2d 1012 (2015); State v. Hennessey, 80 Wn. App. 190, 194, 907
P.2d 331 (1995). “A claim of insufficiency admits the truth of the State’s evidence and all
reasonable inferences that a trier of fact can draw from that evidence.” State v. Notaro, 161 Wn.
App. 654, 670, 255 P.3d 774 (2011). “All reasonable inferences from the evidence must be
drawn in favor of the verdict and interpreted strongly against the defendant.” Id.“Circumstantial evidence is no less reliable than direct evidence.” Id. We must “defer to the
trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of
the evidence.” State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
2. Felony Harassment
Michael threatened Geeson by pointing a shotgun at him and saying, “I got to kill you
now. I’m sorry. I got to.” RP at 99. Job then pointed a gun at Geeson throughout the incident.
Job argues that there is insufficient evidence to show (1) that he was an accomplice to Michael’s
harassment of Geeson, (2) that he or Michael acted without lawful authority in threatening
5
Because we reverse the unlawful imprisonment conviction on other grounds, we do not address
Job’s argument that there was insufficient evidence in the record to uphold that conviction. We
also do not address any arguments pertaining to the firearm enhancements attached to the
unlawful imprisonment conviction.
9
No. 45764-4-II
Geeson because it was in self-defense, and (3) that his conduct, as the principal, placed Geeson
in reasonable fear that the threat would be carried out. We disagree.
a. Accomplice Liability
Job first argues that there was insufficient evidence for a rational juror to conclude that he
was an accomplice to Michael’s felony harassment of Geeson. The State contends that Job was
an accomplice because he assisted Michael in carrying out the threat. We agree with the State.
A person is guilty of felony harassment if, without lawful authority, the person
knowingly threatens to kill another person. RCW 9A.46.020(1)(a), (2)(b)(ii). The State must
also 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).
Accomplice liability requires knowledge of the crime and that the accomplice: (1)
solicits, commands, encourages, or requests another person to commit it, or (2) aids or agrees to
aid another person in planning or committing it. RCW 9A.08.020(3)(a). “Presence at the scene
of an ongoing crime may be sufficient if a person is ‘ready to assist.’” In re Welfare of Wilson,
91 Wn.2d 487, 491, 588 P.2d 1161 (1979) (quoting State v. Aiken, 72 Wn.2d 306, 349, 434 P.2d
10 (1967)). Mere presence coupled with knowledge or assent is not sufficient to establish
accomplice liability. Wilson, 91 Wn.2d at 491; State v. Everybodytalksabout, 145 Wn.2d 456,
472, 39 P.3d 294 (2002).
Here, there was sufficient evidence to show that Job assisted Michael in threatening to
kill Geeson and placed Geeson in reasonable fear of his life. Job argues that there is no evidence
that he was an accomplice to Michael’s threat to Geeson, because he was “merely present” in the
house and he did not know “Michael was going to threaten to kill Geeson.” Br. of Appellant at
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No. 45764-4-II
15-16. However, one of the State’s witnesses testified to Job’s statements during his post-arrest
interview, where Job admitted to hearing Michael’s threat to Geeson.
Citing State v. Robinson, Job also argues that the felony harassment was “completed
before Job could have assisted in any manner.” Br. of Appellant at 16; 73 Wn. App. 851, 852,
872 P.2d 43 (1994). In Robinson, a passenger in the defendant’s car suddenly jumped out,
robbed a woman, and returned to the car. 73 Wn. App. at 852. Even though the defendant drove
away with knowledge that the passenger had robbed somebody, the court held that the act of
robbery was completed by the time he reentered the car and the defendant “could not have aided
and abetted [the] crime.” 73 Wn. App. at 852-53, 857. Unlike Robinson, the crime of felony
harassment was not over as soon as Michael uttered the threat to Geeson; rather, a jury could
have inferred that Job was assisting in the threat by pointing his gun at Geeson throughout the
incident.
Taking the evidence most favorably to the State, Job, here, is more than “ready to
assist”—he was actually assisting in carrying out Michael’s threat. There was sufficient
evidence for a jury to find Job was an accomplice to that threat.
b. Without Lawful Authority6
Next, Job argues that there was insufficient evidence for the jury to conclude that the
felony harassment was “without lawful authority” because it was in self-defense. Br. of
Appellant at 17. Job essentially argues that because he and Michael had lawful authority to use
6
It could be argued that our self-defense analysis that caused Job’s unlawful imprisonment to be
reversed also could apply to Job’s felony harassment charge as well. However, Job failed to
propose a WPIC 17.02 instruction for felony harassment below and failed to raise this issue
directly in his appellate briefing. Accordingly, we do not reach that issue.
11
No. 45764-4-II
force against DJ, Michael’s threat to kill Geeson was also lawful. We disagree.
A jury could reasonably infer that Michael’s words “I got to kill you now. I’m sorry. I
got to” was beyond self-defense. Further, even though Michael did not repeat the threat upon
learning Geeson was unarmed, any juror could reasonably believe that Job’s continued pointing
of his Glock at Geeson throughout the incident was assisting Michael in carrying out the earlier
death threat. There was sufficient evidence for a jury to find Job acted without lawful authority.
c. Reasonable Fear That Threat Will Be Carried Out
Finally, Job argues that because the State failed to put “or as an accomplice” on one of
the elements of the felony harassment to-convict instruction, the law of the case doctrine7
required them to prove that Job’s words or conduct, as the principal, placed Geeson in reasonable
fear that the threat would be carried out.8 Assuming without deciding that this argument is
correct, we hold that the evidence that Job pointed a gun at Geeson throughout the incident after
Michael said he had to kill Geeson is sufficient to show that Job’s conduct, as the principal,
placed Geeson in reasonable fear that Michael’s threat would be carried out.
7
Under the law of the case doctrine, jury instructions not objected to become the law of the case.
State v. Hickman, 135 Wn.2d 97, 101-02, 954 P.2d 900 (1998).
8
To convict the defendant
of the crime of Felony Harassment as charged in Count Five, each of the following
elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 25th day of October, 2012, the defendant or his
accomplice knowingly threatened to kill Colton Geeson immediately or in the
future;
(2) That the words or conduct of the defendant placed Colton Geeson in
reasonable fear that the threat to kill would be carried out.
CP at 708 (emphasis added).
12
No. 45764-4-II
3. Possession with Intent to Deliver a Controlled Substance
Job next argues that there was insufficient evidence to uphold his conviction of
possession with intent to deliver a controlled substance based on accomplice liability. We
disagree.
Possession with intent to deliver a controlled substance required the State to prove that,
on or about October 25, 2012, Job or an accomplice possessed a controlled substance and that he
or an accomplice intended to deliver it. RCW 69.50.401. Contrary to Job’s contention, the State
did not need to prove that Job supplied the exact pills that were to be delivered to DJ and Geeson
or that he had the intent of selling specifically to them. Rather, the State only needed to show
that Job was an accomplice to Michael’s and Frietas’s possession of the substance and their
intent to distribute to DJ and Geeson.
The evidence showed that Job contributed oxycodone pills to a common pile from which
Michael and Freitas would take drugs to deliver and sell. This evidence demonstrates a shared
possession of the drugs and a shared intent to deliver to Michael’s and Freitas’s drug customers.
The pill bottle found with 30 oxycodone pills in it, prescribed only three days earlier to Job,
further provides evidence that he was continuing to be an accomplice in Michael’s and Frietas’s
possession and intent to deliver to drug customers, including DJ and Geeson. Accordingly, we
hold there is sufficient evidence to support Job’s conviction of possession with intent to deliver a
controlled substance.
4. Unlawful Use of a Building for Drug Purposes
Job argues there was insufficient evidence to establish that the upstairs was under his
control to convict him of unlawful use of a building for drug purposes. We disagree.
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No. 45764-4-II
In order to convict Job of unlawful use of a building for drug purposes, the State must
have proved that he knowingly made available for use a space under his management or control
as a lessee to others for storing, manufacturing, selling, or delivering drugs. RCW 69.53.010(1);
State v. Davis, 176 Wn. App. 385, 394-95, 308 P.3d 807 (2013), review denied, 179 Wn.2d 1023(2014). Both parties rely on Davis in taking their respective positions. In Davis, the defendant
was found guilty of unlawful use of a building for drug purposes based on her selling drugs out
of her motel room. Id. at 388-93. However, we reversed, holding that the record failed to
establish that the defendant managed or controlled any other portion of the motel or that she
knowingly made her room available for other people to sell drugs: “nothing established that
Davis acted as a landlord or, herself, allowed others to deal drugs from a space of which she
maintained control.” Id. at 395-96.
Here, while Job primarily lived downstairs, and Michael upstairs, there was sufficient
evidence to show that Job had the upstairs “under control” for purposes of the statute. As argued
by the State, Job and Michael were lessees together on the residence in question. In addition, the
only kitchen, which Job shared with Michael, was upstairs. Unlike Davis, where the defendant
lived alone in a hotel room dealing drugs, there is sufficient evidence here to show that Job
knew9 of the drug activities and had access to the space. Perhaps if this were a situation where
Michael had locked the upstairs area with a key that Job had no access to, Job could not be said
9
Job also argued even if it can be shown that the upstairs was under his control, there is no
evidence that shows he knowingly made the upstairs available for that use. Knowingly
“mak[ing] available for use” a space under the defendant’s control for illegal drug purposes
means allowing a person to carry out said activities. See State v. Sigman, 118 Wn.2d 442, 447,
826 P.2d 144 (1992), (landlord who knew of tenant’s drug activities and allowed it to continue
for several months knowingly “made available for use” his property). The record demonstrates
that, at the very least, Job allowed the upstairs to be used for illegal drug activities. We find this
is sufficient evidence to support the knowledge element.
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No. 45764-4-II
to have control for purposes of the statute. However, that is not the case here when viewing the
evidence in the light most favorable to the State. State v. Sigman, 118 Wn.2d 442, 445, 826 P.2d
144 (1992).10
We hold there was sufficient evidence to establish that Job had sufficient control over the
upstairs area to allow a reasonable juror to find him guilty of unlawful use of a building for drug
purposes.
5. Firearm Enhancements
Job argues that there is insufficient evidence to support three of his firearm enhancements
on his possession with intent to deliver a controlled substance conviction and two firearm
enhancements on his felony harassment conviction. We disagree.
a. Legal Principles
A person can be subject to a sentencing enhancement if “armed with a firearm” while
committing a crime. RCW 9.94A.533(3).11 A person is “armed with a firearm” if the person
could both (1) easily access and readily use a weapon and (2) a nexus connects the person, the
weapon, and the crime. State v. Eckenrode, 159 Wn.2d 488, 490-91, 150 P.3d 1116 (2007).
A person can easily access and readily use a weapon when it is easy to get to for use
against another person, whether for offensive or defensive purposes, to facilitate the commission
10
Job also argues that if the court upholds his conviction that this statute will “criminalize[] the
mere act of knowingly having a housemate who sells drugs.” Reply Br. of Appellant at 10. So
long as the defendant also had shared control of the area where the roommate had the drugs, we
agree that is correct. The legislature has indicated that a person should call police in situations
where their roommates are facilitating drug crimes, since this is a defense to unlawful use of a
building for drug purposes. RCW 69.53.010(2) (“It shall be a defense [to] . . . notify a law
enforcement agency of suspected drug activity.”).
11
RCW 9.94A.533 was amended in 2012, 2013 and 2015. These amendments do not affect the
issues in this matter.
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No. 45764-4-II
of the crime or to protect contraband. State v. Neff, 163 Wn.2d 453, 462, 181 P.3d 819 (2008)
(plurality opinion); State v. Gurske, 155 Wn.2d 134, 139, 118 P.3d 333 (2005). The defendant
does not have to be armed at the moment of arrest to be armed for purposes of the firearms
enhancement. State v. O’Neal, 159 Wn.2d 500, 504, 150 P.3d 1121 (2007); but see State v.
Valdobinos, 122 Wn.2d 270, 283-84, 858 P.2d 199 (1993).
Second, to be deemed armed while committing a crime, there must be a nexus connecting
the person, the weapon, and the crime. Neff, 163 Wn.2d at 462 (plurality opinion). Mere
possession or ownership of a weapon does not establish a sufficient nexus. State v. Brown, 162
Wn.2d 422, 432, 173 P.3d 245 (2007).
In every case, whether a defendant is armed is a fact-specific decision. Gurske, 155
Wn.2d at 139 (“Regardless of the offense, whether the defendant is armed at the time a crime is
committed cannot be answered in the same way in every case.”).
b. Possession with Intent to Deliver
Job argues that his three firearm enhancements based on (1) the Glock handgun, (2) the
SKS assault rifle found in his bedroom, and (3) the Benelli shotgun, attached to his possession
with intent to deliver conviction, should be vacated for insufficient evidence. The State contends
that sufficient evidence supports that Job or an accomplice was “armed” with all three firearms.
Br. of Resp’t at 14-15. The State is correct.
There is no question that Job or Michael could easily access and readily use these
weapons. The Glock and SKS assault rifle were found in Job’s room, and Michael’s shotgun
was located in his room. Job’s role as an accomplice connects him to Michael, the principal,
which makes the shotgun enhancement permissible on his conviction. O’Neal, 159 Wn.2d at
506 (holding that there was sufficient evidence to uphold the defendant’s firearm enhancement
16
No. 45764-4-II
because there was evidence that the gun in question was at least readily accessible to the
accomplice).
As to the nexus requirement, Job’s and Michael’s use of the weapons was a “defensive
use” to “protect contraband,” i.e., to ensure that the drug deliveries were successful. Gurske, 155
Wn.2d at 139. As in O’Neal, where one of the accomplices testified that they were using
weapons to protect their operation, 159 Wn.2d at 505-06, Freitas testified at trial that the guns
Michael and Job possessed were used to protect them from being robbed. Unlike Brown, 162
Wn.2d at 425-26, 432, this is not a case where Job merely picked up a gun that did not belong to
him and put it back down. Rather, the evidence supports that he was an accomplice in the
delivery of the drugs to Geeson and DJ and that when they interfered with that transaction, Job
was ready to assist Michael with his Glock or SKS in his room. Furthermore, the jury could
have inferred that Michael’s attempt to grab the shotgun before DJ burglarized them was an
attempt to protect the drugs from being stolen.
Accordingly, we hold that there is sufficient evidence to support all three firearm
enhancements; that is, all weapons were accessible either to Job or Michael and a nexus existed
between them, the weapons, and the crime, namely to protect the drugs from being stolen.
c. Felony Harassment
Next, Job argues that there is insufficient evidence to support two of the three firearm
enhancements on the felony harassment conviction: those involving (1) the Glock handgun and
(2) DJ’s Taurus handgun. We disagree.
The Glock can be easily seen to be facilitating the felony harassment. As argued above,
there was evidence that Job at least heard Michael make the threat to Geeson and then continued
to point his Glock at Geeson throughout the incident. However, it is more difficult to conclude
17
No. 45764-4-II
the same as to the Taurus handgun. Job argues that the threat was over when Michael picked up
DJ’s Taurus handgun, making it unconnected to the felony harassment charge. But when taking
the facts in the light most favorable to the State, a reasonable juror could have found that
Michael's picking up DJ’s gun helped facilitate the felony harassment. In effect, it could be seen
as taking away Geeson’s only means of defending himself, further putting him in fear of his life.
Moreover, there is evidence that Michael used the Taurus to force Geeson to get into DJ’s car
and drive it into the garage.12 As stated above, the jury could have believed that Job assisted
Michael in the felony harassment as an accomplice, and therefore, the firearm enhancement
based on the Taurus handgun is not improper. Accordingly, we uphold the firearm
enhancements attached to the felony harassment conviction.
III. ER 404(B) PRIOR ACTS
Job argues that Freitas’s testimony about Job’s previous drug transactions was propensity
evidence that should have warranted an ER 404(b) analysis. We agree with Job that the trial
court should have conducted an ER 404(b) analysis, but hold that any error in admitting the
evidence was harmless.
12
Job also argues that this court should consider Rosemond v. United States, 134 S. Ct. 1240,
188 L. Ed. 2d 248 (2014), petition for cert. filed, No. 15-585 (Nov. 3, 2015), where under
“analogous” federal law, 18 U.S.C. § 924(c), the United States Supreme Court “held that the
government must prove that the defendant knew in advance that a confederate will carry a gun
before suffering the enhanced penalty.” Br. of Appellant at 49. There are two reasons we find
this not persuasive. First, the federal law is different than Washington law regarding accomplice
liability and firearm enhancements. Compare 18 U.S.C. §§ 2, 924 with RCW 9A.08.020; RCW
9.94A.533. Second, even if we did adopt a knowledge requirement to find accomplices guilty of
a firearm enhancement, there is evidence here that Job did have knowledge that a firearm would
be involved in facilitating the felony harassment through the Glock and shotgun. In Rosemond,
the defendant believed that no gun would be used in facilitating the crime—not that another gun
would not be used. See 134 S. Ct. at 1245-46, 1251.
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No. 45764-4-II
ER 404(b) disallows evidence of prior acts “to prove the character of a person in order to
show action in conformity therewith.” The first question is whether any of the evidence that
tended to show Job was an accomplice with the intent to deliver a controlled substance qualified
as a “prior act” for ER 404(b). We find that some of the evidence does qualify. Freitas properly
testified about the operation between Michael, herself, and Job: that all three acquired pills,
grouped them into a pile, and she and Michael would sell the pills. That was how the operation
ran when they sold to Geeson and thus would be proper nonpropensity evidence.
However, the trial court allowed the prosecutor to inquire into Job’s prior sales of drugs:
[Prosecutor]: Roughly, how many customers did Job have?
[Freitas]: Pretty much his brother, Michael.
[Prosecutor]: Anyone else besides that?
[Freitas]: Not really. He had a few that he would deal with that were
friends.
[Prosecutor]: Even up to the time of the incident?
[Freitas]: It had pretty much subsided him selling any to anybody.
[Prosecutor]: Okay. How long had it been since he had people that he had
sold to?
[Freitas]: Probably a year.
[Prosecutor]: Okay. So up until a year before the incident, Job was-- part
of his participation was to actually sell pills, until about a
year before, his customers run out?
[Freitas]: It’s a tricky question, but Michael had taken over his
brother’s customers, so what they weren't doing or selling to
I was the one selling them to.
[Prosecutor]: Job’s customers switched over to Michael?
[Freitas]: Yes.
RP at 158. This inquiry into Job’s prior involvement in selling pills directly to customers is prior
act evidence under ER 404(b).
When ER 404(b) is triggered, the trial court is required to carry out a four-part test on the
record and determine whether the prior act evidence is admissible. State v. Gunderson, 181
Wn.2d 916, 923, 337 P.3d 1090 (2014). We may conduct our own ER 404(b) analysis, if from
the record we can properly decide the issue of admissibility. State v. Gogolin, 45 Wn. App. 640,
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No. 45764-4-II
645, 727 P.2d 683 (1986). However, we decline to conduct our own ER 404(b) analysis because
any error in admitting the evidence was harmless.
In analyzing the erroneous admission of evidence in violation of ER 404(b), we apply the
nonconstitutional harmless error standard. State v. Gower, 179 Wn.2d 851, 854, 321 P.3d 1178(2014). This requires us to decide whether within reasonable probabilities, had the error not
occurred, the outcome of the trial would have been materially affected. Id. Job’s prior sale of
drugs was a very small part of the evidence of the drug operation which he, Freitas, and Michael
were all a part of. Freitas’s one or two responses that implicated Job as having sold drugs in the
past cannot be said to have materially affected the trial’s outcome within reasonable
probabilities. We hold that any erroneous admission of this evidence was harmless error.
IV. RELEVANCE
Job argues that evidence of a gas mask, bullet-resistant vest, and a knife were irrelevant
and prejudicial. We agree with him as to the gas mask and bullet-resistant vest, but hold that any
error in admitting that evidence was harmless.
“Evidence which is not relevant is not admissible.” ER 402. Evidence is relevant if it
has “any 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.
“The threshold to admit relevant evidence is very low. Even minimally relevant evidence is
admissible.” State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002). “Evidence is relevant
if a logical nexus exists between the evidence and the fact to be established.’” State v. Briejer,
172 Wn. App. 209, 225-26, 289 P.3d 698 (2012) (quoting State v. Burkins, 94 Wn. App. 677,
692, 973 P.2d 15 (1999)). Questions of relevancy “are within the discretion of the trial court,
20
No. 45764-4-II
and [this court] review[s] them only for manifest abuse of discretion.” State v. Aguirre, 168
Wn.2d 350, 361, 229 P.3d 669 (2010).
Job argues that the knife, gas mask, and bullet-resistant vest have no logical, relevant
tendency to show that he committed any of the charges against him. We disagree as to the knife,
since it was at least minimally relevant in establishing that he used weapons to protect their drug
operation. The vest, however, is irrelevant, in part because it has no connection to Job directly
and does not relate to any of the charges. In fact, as Job points out, the vest was found in
Michael’s room, not his. Even if it had been found in Job’s possession, the vest had no tendency
to make any of his charges more probable than would be the case without that evidence.
Similarly, the gas mask is not relevant to the charges. Perhaps if the State’s theory had been that
Job, Michael, or Freitas had been involved in the manufacture of drugs then it would be relevant;
however, like the bullet-resistant vest, there is no logical nexus between the gas mask and Job’s
charges.
Even though we find that the gas mask and bullet-resistant vest were irrelevant, we hold
that any error in admitting this evidence was harmless. “‘An evidentiary error [that] is not of
constitutional magnitude . . . requires reversal only if the error, within reasonable probability,
materially affected the outcome.’” Briejer, 172 Wn. App. at 228 (alteration in original) (quoting
Everybodytalksabout, 145 Wn.2d at 468-69). Conversely, “‘[t]he error is harmless if the
evidence is of minor significance compared to the overall evidence as a whole.’” Briejer, 172
Wn. App. at 228 (alteration in original) (quoting Everybodytalksabout, 145 Wn.2d at 469). The
bullet-resistant vest was merely shown in a picture, identified in court, and submitted to the jury.
Similarly, the gas mask was simply shown to the jury both in picture form and in person.
Compared to the extent of evidence presented by Freitas and Bunton to demonstrate Job’s
21
No. 45764-4-II
participation and knowledge of the drug operation with Michael and Freitas, these small pieces
of evidence were of minor significance compared to the overall evidence as a whole in Job’s
convictions. We hold that any error in admitting this evidence was harmless.
V. PROSECUTORIAL MISCONDUCT
Job argues that in the State’s closing argument the prosecutor committed misconduct in
three ways:
by (1) comparing the case to “Pulp Fiction,” a popular fictional movie depicting
graphic violence and drug use; (2) arguing that Job’s home was an armed camp and
that Job was prepared to combat law enforcement; and (3) arguing that Job’s
shooting of DJ . . . was not necessarily justified and that Job’s motive in shooting
DJ was not protection of himself and his housemates.
Reply Br. of Appellant at 18. The State contends that these comments were not misconduct, and
that even if they were, Job fails to meet his burden in showing prejudice. We agree with Job that
these comments, especially in the aggregate, were improper. However, we hold that even under
the cumulative error doctrine Job waived any error, since a jury instruction could have cured the
resulting prejudice. Accordingly, his prosecutorial misconduct claim fails.
1. Legal Principles
To establish prosecutorial misconduct, the defendant must prove that the prosecuting
attorney’s remarks were both improper and prejudicial. State v. Allen, 182 Wn.2d 364, 373, 341
P.3d 268 (2015). “In analyzing prejudice, we do not look at the comments in isolation, but in the
context of the total argument, the issues in the case, the evidence, and the instructions given to
the jury.” State v. Warren, 165 Wn.2d 17, 28, 195 P.3d 940 (2008). To show prejudice the
defendant must “show a substantial likelihood that the misconduct affected the jury verdict.” In
re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012), cert. denied, 136 S.
Ct. 357 (2015).
22
No. 45764-4-II
Job did not object at trial to any of conduct he now characterizes as improper and
prejudicial. When a defendant fails to object to the challenged portions of the prosecutor’s
argument, he or she is deemed to have waived any error unless the prosecutor’s misconduct was
so flagrant and ill-intentioned that an instruction could not have cured the resulting
prejudice. State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d 653 (2012). Therefore, to prevail
on a prosecutorial misconduct claim for conduct to which he did not object below, Job must
show that (1) no curative instruction would have eliminated the prejudicial effect and (2) the
misconduct resulted in prejudice that had a substantial likelihood of affecting the verdict. Id. at
761.
2. Impropriety
a. Pulp Fiction Comments
During closing argument, the prosecutor introduced the case, saying,
Thank you for your time and your service on behalf of myself and Mr. Kawamura,
I am sure.
Hopefully what we gave you was a pretty interesting case. If you’ve sat on
10, 20 or 30 juries, I am gonna [sic] bet you never saw a case like this one before
and you never will again. I liken it to the movie Pulp Fiction. It’s that crazy. It’s
that insane. None of it really seems to make any sense from the average citizen’s
point of view, but there it is. And it isn’t just a movie, it happened.
RP at 505 (emphasis added). Job did not object.
Job argues that the prosecutor’s personal opinion that the case was “crazy,” “insane,” and
resembled a violent movie was an appeal to the jury’s passion and prejudice. Br. of Appellant at
39. The State argues that the prosecutor was “merely illustrating for the jury that this case is
outside of most people’s common frame of reference.” Br. of Resp’t at 26. Taking these
comments in isolation, we agree with the State; that in the context of this case it supplied a way
23
No. 45764-4-II
for the jury to understand the case. However, these comments become improper when taken in
context with the other portions of the prosecutor’s closing argument and rebuttal analyzed below.
b. Armed Camp Comments
After discussing the physical evidence admitted at trial, the prosecutor stated during
closing argument:
And what does all that physical evidence tell you? Well, one primary thing is, these
guys are living in an armed camp. . . . And they have got what in there? An assault
rifle with over a thousand rounds of ammo with vest - penetrating ammunition.
What is the point of that? Is that to go after a drug rip customer? Probably not.
Because who wears vests? Not drug rip customers.
They have got a gas mask with canisters. What is the point of that? Is a
drug customer gonna [sic] be coming there to try to break into the house by
throwing in tear gas? Not likely, but who might? Who would use tear gas to flush
those guys out of that house?
You’ve got a bulletproof vest. I mean, you’ve got—it’s an armed camp.
That’s what it is. They are loaded for bear, and whatever trouble comes their way,
they are gonna [sic] be prepared to fight to the death.
RP at 520-21 (emphasis added). Job did not object.
Job argues that the prosecutor “emphasize[d] the presence of lawfully possessed weapons
and items, insinuating that their purpose was to combat law enforcement, rather than for
protection.” Br. of Appellant at 39. We agree.
The State is correct that it was proper to argue that Job and Michael were prepared to stop
people from robbing them of their drugs. However, the State’s further contention that Job and
Michael were prepared to fight more than robbers was improper. While the prosecutor never
said so directly, he insinuated that Job was preparing to fight police officers in three ways,
through the penetration ammo, gas mask, and bullet-resistant vest.
Although there was evidence presented to the jury at trial that Job had weapons to protect
the drugs, there was no relevant crime that made it proper for the prosecutor to argue that Job
was ready to battle law enforcement. This argument was both outside the evidence and
24
No. 45764-4-II
inflammatory to the jury. See State v. Belgarde, 110 Wn.2d 504, 506-08, 755 P.2d 174 (1988).
As such, it was improper.
c. Killing DJ Comments
Immediately after the “armed camp” statements discussed above, the prosecutor made
comments related to the justifiability of killing DJ,
And when that time came, they sprang into action, and DJ was a goner. I mean,
there was no question about what was going to happen to DJ. DJ was not gonna
[sic] come out of that house alive and he didn’t. And he wasn’t hit by just one gun.
He was hit by both. And the odds are probably pretty good when you sit down to
figure out the facts of how things went; that DJ was almost certainly dead by the
time he hit the ground.
And when you think about the fact of how things played out, Michael didn’t
have enough time to get that shotgun and come back and hit DJ before DJ hit the
ground. That shotgun blast was probably while DJ was laying there on the ground.
So to some extent, it’s somewhat gratuitous, but it shows you the mindset of the
partners in this organization and what they were going to do and when they had to
do it. They didn’t have to stop and talk about it. They just acted.
RP at 521 (emphasis added). Job did not object.
In the defense’s closing argument, counsel characterized Job’s shooting of DJ as
“justified because you don’t see him charged with the death of DJ.” RP at 535. In rebuttal, the
State argued,
DJ’s shooting, killing has been found to be justified. You didn’t hear that
from anybody in this case. Nobody ever once said that except Mr. Kawamura. We
are not here to decide a murder case. That issue is off the table. Job didn’t do
anything to assist. Well, if you call killing somebody not doing anything, okay. But
what was he doing when he killed DJ? What was he protecting?
Yes, he might have been protecting his brother, but at the same time, he is
protecting his drug-dealing partner, both of his drug-dealing partners, and he is
protecting the access of his drug organization. So don’t say he did nothing. He did
something. He did something really significant that day. He may have had a dual
purpose in doing so, but he did something, something drastic and somebody died
as a result. I am not gonna [sic] say DJ didn’t deserve it. That’s a whole different
issue for a whole different day if that day ever comes, but he did something that
day.
25
No. 45764-4-II
RP at 549-50 (emphasis added). Job did not object.
The State first argues that the prosecutor was simply rebutting defense counsel’s
argument that the shooting of DJ was justified. However, as Job points out, the State originally
brought up the justification of shooting DJ in its closing argument; the State was not merely
rebutting defense counsel’s arguments.
In its initial closing, the State put special emphasis on the killing of DJ, referring to him
“as a goner” and saying, “There was no question about what was going to happen to DJ . . . [he
was] almost certainly dead by the time [he] hit the ground.” RP at 521. The rebuttal contained
similarly improper comments; for example, the prosecutor properly said that “we are not here to
decide a murder case” but then seemingly contradicted his own argument by stating, “Job didn’t
do anything to assist. Well, if you call killing somebody not doing anything, okay.” RP at 549-
50. This comment could have allowed the jury to infer Job’s guilt on unrelated and uncharged
crimes because of his killing of DJ.13 We hold that these comments were improper.
3. Curative Instruction/Cumulative Error
Although we hold that the prosecutor’s comments discussed above, especially in the
aggregate, were improper, we also hold that the misconduct involved was not so flagrant and ill-
intentioned that a jury instruction would not have cured the prejudice. Therefore, Job is deemed
to have waived any error.
“[A] defendant may be entitled to a new trial when cumulative errors produce a trial that
is fundamentally unfair.” Emery, 174 Wn.2d at 766. “‘[T]he cumulative effect of repetitive
13
Moreover, comments at the end of a prosecutor’s rebuttal closing are more likely to cause
prejudice. See State v. Lindsay, 180 Wn.2d 423, 443, 326 P.3d 125 (2014).
26
No. 45764-4-II
prejudicial prosecutorial misconduct may be so flagrant that no instruction or series of
instructions can erase their combined prejudicial effect.’” Glasmann, 175 Wn.2d at 707 (quoting
State v. Walker, 164 Wn. Ap. 724, 737, 265 P.3d 191 (2011)). “Cumulative error may call for
reversal, even if each error standing alone would be considered harmless.” State v. Thorgerson,
172 Wn.2d 438, 454, 258 P.3d 43 (2011). The nature and the degree of prejudice that results
from the improper comments determine whether a curative instruction would have removed the
prejudice. Belgarde, 110 Wn.2d at 507-10; see also State v. Rafay, 168 Wn. App. 734, 829-32,
285 P.3d 83 (2012).
Here, the prosecutor’s reference to the case being as “crazy” and “insane” as Pulp
Fiction, the implication that Job was prepared to kill police officers, and the repeated references
to how DJ was killed, were improper. However, any prejudice flowing from these comments
would have been curable if he had objected. The comments did not rise to the level of
incurability present in Belgarde, where the prosecutor directly told the jury to consider the
prejudicial comments in the jury room. 110 Wn.2d at 508-10. Nor do we find them as egregious
as Rafay, where the court found no substantial likelihood that a comparison to the beheading of
an American citizen that was extensively covered in the news affected the outcome of the trial.
168 Wn. App. at 829-32.
The prosecutor’s comments, taken in the aggregate, were curable. Thus, Job waived any
claim of error to them by failing to object. Accordingly, his prosecutorial misconduct claim
fails.
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No. 45764-4-II
CONCLUSION
We reverse and vacate Job’s conviction of unlawful imprisonment and the three firearm
enhancements attached to that conviction. We affirm the rest of his convictions and firearm
enhancements.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
BJORGEN, A.C.J.
We concur:
MAXA, J.
MELNICK, J.
28