State Of Washington, V. Jacob Ryan Helms ( 2024 )


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  •        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    STATE OF WASHINGTON,
    No. 86857-8-I
    Respondent,
    DIVISION ONE
    v.
    UNPUBLISHED OPINION
    JACOB RYAN HELMS,
    Appellant.
    HAZELRIGG, A.C.J. — Jacob Helms was convicted of assault in the second
    degree with a deadly weapon and a separate gross misdemeanor charge of
    possession of a dangerous weapon, following a jury trial. Helms alleges that
    prosecutorial misconduct deprived him of a fair trial, and the trial court imposed
    custody conditions that were not crime-related and legal financial obligations that
    should be stricken due to his indigency. He separately challenges the sufficiency
    of the charging document and the constitutionality of the statute criminalizing
    possession of a dangerous weapon. Helms fails to demonstrate error on all but
    his challenge to the legal financial obligations. Accordingly, we affirm in part,
    reverse in part, and remand for correction of his judgment and sentence.
    FACTS
    Jacob Helms and Anatoly “Tony” Berezhnoy were involved in an altercation
    in Vancouver on the night of August 18, 2022. The impetus of the altercation is
    disputed between the parties. Berezhnoy claimed that Helms struck him from
    No. 86857-8-I/2
    behind without warning. Helms later admitted that he struck Berezhnoy in the back
    of the head with metal knuckles, but asserted that he did so only in self-defense.
    The two were grappling on the sidewalk when officers who were in the area
    responded quickly, and ultimately placed both Berezhnoy and Helms into
    handcuffs to determine what had occurred. Helms was booked into the local jail
    that night and the State filed charges of assault in the second degree with a deadly
    weapon and possession of a dangerous weapon, a gross misdemeanor. The case
    proceeded to a jury trial and Berezhnoy, his wife, Oksana Berezhnoy, their friend
    Olga Dernovaya, and the responding officers testified for the State. Helms testified
    in his own defense. The jury convicted Helms as charged and the court sentenced
    him to 17 months in prison, followed by 12 months of community custody
    supervision by the Department of Corrections (DOC).
    Helms timely appealed.
    ANALYSIS
    I.     Prosecutorial Misconduct
    Helms avers that the prosecutor engaged in “pervasive” misconduct by
    referring to Berezhnoy as the “victim” several times during trial. In support of this
    assignment of error, Helms cites six times that the prosecutor used the word to
    describe Berezhnoy and offers an assortment of out-of-state cases that address
    the use of the word “victim.” However, he presents no analogous authority from
    Washington courts beyond the basic rules governing prosecutorial misconduct. In
    response,   the   State   provides   an   extensive    footnote   rebutting   Helms’
    characterization of the out-of-state cases and avers the actions of the prosecutor
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    No. 86857-8-I/3
    here were neither flagrant nor ill intentioned. Given that foreign cases offer only
    persuasive authority, and our state has robust law governing prosecutorial
    misconduct, Washington jurisprudence is sufficient for us to conclude that Helms’
    right to a fair trial was not impinged by the prosecutor’s conduct.
    A defendant who makes a timely objection to prosecutorial misconduct must
    show that the conduct was “‘both improper and prejudicial in the context of the
    entire trial.’” State v. Zamora, 
    199 Wn.2d 698
    , 708, 
    512 P.3d 512
     (2022) (internal
    quotation marks omitted) (quoting State v. Loughbom, 
    196 Wn.2d 64
    , 70, 
    470 P.3d 499
     (2020)). If the defense does not timely object, we apply a heightened prejudice
    standard; the defendant must demonstrate the improper and prejudicial conduct
    was “‘so flagrant and ill intentioned that an instruction would not have cured the
    prejudice.’”   Loughbom, 196 Wn.2d at 70 (internal quotation marks omitted)
    (quoting State v. Walker, 
    182 Wn.2d 463
    , 477, 
    341 P.3d 976
     (2015)). “Under this
    heightened standard, the defendant must show that (1) ‘no curative instruction
    would have obviated any prejudicial effect on the jury’ and (2) the misconduct
    resulted in prejudice that ‘had a substantial likelihood of affecting the jury verdict.’”
    State v. Emery, 
    174 Wn.2d 741
    , 761, 
    278 P.3d 653
     (2012) (internal quotation
    marks omitted) (quoting State v. Thorgerson, 
    172 Wn.2d 438
    , 455, 
    258 P.3d 43
    (2011)).
    The parties agreed that Helms struck Berezhnoy with metal knuckles; the
    reason why was the sole disputed fact. During direct examination, Vancouver
    Police Officer Shane Weldon referred to Berezhnoy as “the victim” when he
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    No. 86857-8-I/4
    described responding to the scene of the altercation. The following exchange
    occurred:
    [STATE:] Okay. So as you approached the location of the yelling,
    what did you observe?
    [WELDON:] So when I got there, Schoolcraft and Harris got there a
    few seconds before I did, so when I got there I saw them in the
    bushes with the [d]efendant. And I saw Tony, the victim, yelling and
    kind of being restrained by his two acquaintances.
    [STATE:] And was the victim—so Anatoly Berezhnoy, is that the
    victim you’re referring to?
    [WELDON:] Yeah, sorry.
    Helms did not object any of the times this word was used during the State’s
    examination of Weldon. The remaining four uses of the word victim occurred
    during the State’s closing argument.      As the prosecutor walked through the
    evidence for the jury, she said,
    So you heard three witnesses, two witnesses and the victim, that
    describe that on August 18th, 2022, about 11:00, 11:30, Tony, Olga,
    and Oksana were walking from the waterfront to Downtown
    Vancouver to get a drink and go get some dinner.
    ....
    The [d]efendant in this case was wearing metal knuckles and he
    struck the victim in the back of the head. No matter which story, you
    did hear two today, no matter which one, he did admit he struck the
    victim in the back of the head wearing metal knuckles.
    The prosecutor later argued, “The State has proved beyond a reasonable doubt
    through the testimony of the victim, the testimony of the witnesses and the officers
    that on August 18th, 2022, the [d]efendant, Jacob Helms, assaulted Tony
    Berezhnoy both with a dangerous weapon and he recklessly inflicted substantial
    bodily harm.” Helms’ attorney did not object to any use of the word victim during
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    No. 86857-8-I/5
    closing argument.      Accordingly, we review his allegation of prosecutorial
    misconduct under the heightened prejudice standard.
    As a preliminary matter, while the State appropriately concedes in briefing
    that use of the word “victim” can be improper, depending on context, using the
    word “victim” six times during a trial consisting of testimony from five witnesses
    does not constitute “pervasive” use. This is particularly true when four of the
    challenged instances occurred during closing argument when the State holds
    significant latitude to argue its theory of the case. More critically, the manner by
    which this word was used does not establish misconduct by the State. As the State
    points out in briefing, Weldon was the first to use the term to describe Berezhnoy,
    and the two times the prosecutor said victim during the presentation of evidence
    appeared to be in an attempt to clarify the officer’s testimony. When the prosecutor
    described Berezhnoy as a victim in summation, she was arguing to the jurors her
    position that she had proved the State’s case beyond a reasonable doubt. “In
    closing argument the prosecuting attorney has wide latitude to argue reasonable
    inferences from the evidence.” Thorgerson, 
    172 Wn.2d at 448
    . The challenged
    statements do not constitute misconduct.
    Finally, Helms fails to provide any compelling reason as to why any potential
    prejudice from the description of Berezhnoy as a victim could not have been cured
    by instruction from the judge. Courts routinely correct language used by parties at
    trial and “[j]urors are presumed to follow the court’s instructions.” State v. Weaver,
    
    198 Wn.2d 459
    , 467, 
    496 P.3d 1183
     (2021). Helms does not carry his burden to
    establish entitlement to relief on this assignment of error.
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    No. 86857-8-I/6
    II.    Sufficiency of the Charging Document
    Helms next asserts that the charging document was insufficient as it failed
    to put him on notice of all essential elements of the crimes the State accused him
    of committing. The defendant’s right to hear the charges against them is enshrined
    in the federal constitution and the state constitution. The accused has a right “to
    be informed of the nature and the cause of the accusation.” U.S. CONST. amend.
    VI. And “to demand the nature and cause of the accusation against [them].” W ASH.
    CONST. art. I, § 22. Thus, the “State must include all essential elements of an
    alleged crime in the information.” State v. Kosewicz, 
    174 Wn.2d 683
    , 691, 
    278 P.3d 184
     (2021). This rule is intended to “sufficiently apprise the defendant of the
    charges against them so [they] may prepare a defense.” 
    Id.
    The State responds that this challenge is waived as it was not presented in
    the trial court, and Helms fails to satisfy the requirement of RAP 2.5(a)(3) to
    establish a manifest constitutional error that may be presented for the first time on
    appeal. The State is correct.
    We may refuse to review any claim of error which was not raised in the trial
    court. RAP 2.5(a). However, we may elect to take up an error for the first time on
    appeal if it is a manifest error affecting a constitutional right. RAP 2.5(a)(3). The
    appellant’s task is to “‘identify a constitutional error and show how the alleged error
    actually affected the [appellant]’s rights at trial.’” State v. O’Hara, 
    167 Wn.2d 91
    ,
    98, 
    217 P.3d 756
     (2009) (alteration in original) (quoting State v. Kirkman, 
    159 Wn.2d 918
    , 926, 
    155 P.3d 125
     (2007)). To rise to the level of a manifest error the
    appellant must show actual prejudice. State v. Kalebaugh, 
    183 Wn.2d 578
    , 584,
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    No. 86857-8-I/7
    
    355 P.3d 253
     (2015). This requires a further showing that the “‘asserted error had
    practical and identifiable consequences in the trial of the case.’” 
    Id.
     (internal
    quotation marks omitted) (quoting O’Hara, 167 Wn.2d at 99).
    Helms neither cites RAP 2.5(a)(3), nor attempts to satisfy the standard it
    requires. Similarly, and more critically, he fails to present authority or argument
    under the controlling standard of review for such a challenge.           In order to
    demonstrate error on a claim of insufficiency of a charging instrument, the
    appellant must establish that the document failed to apprise the accused of an
    essential element of the crime alleged, thus violating their constitutional right to
    understand the accusation they face.
    In State v. Pry, our Supreme Court addressed the two-step test for such
    analysis laid out in its earlier opinion, State v. Kjorsvik, 
    117 Wn.2d 93
    , 
    812 P.2d 86
    (1991), and explained that reviewing courts first determine whether the “necessary
    facts appear in any form, or by fair construction can they be found, on the face of
    the charging document.” 
    194 Wn.2d 745
    , 752, 
    452 P.3d 536
     (2019). We may
    consider any other allegations set out in this same charging instrument at this step
    of the test. 
    Id. at 753
    . If the necessary facts are present, the court then considers
    whether the defendant was nonetheless prejudiced by the State’s “inartful
    language that caused a lack of notice” and may review accompanying affidavits.
    
    Id. at 752-53
    . If, after de novo review, the appellate court concludes that the
    “necessary elements are not found or fairly implied, we presume prejudice and
    reverse without reaching the second prong and the question of prejudice.” 
    Id. at 753
    .
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    No. 86857-8-I/8
    Helms cites none of this authority, nor does he address the language in the
    information the State filed in his case. “We do not consider conclusory arguments
    unsupported by citation to authority.” State v. Mason, 
    170 Wn. App. 375
    , 384, 
    285 P.3d 154
     (2012); RAP 10.3(a)(6).         “Passing treatment of an issue or lack of
    reasoned argument is insufficient to merit judicial consideration.” Holland v. City
    of Tacoma, 
    90 Wn. App. 533
    , 538, 
    954 P.2d 290
     (1998). Instead, the entirety of
    his argument on this issue addresses the true focus of his appeal: his claim that
    the possession of a dangerous weapon statute is unconstitutional. Because Helms
    has neither carried his burden to demonstrate manifest constitutional error such
    that this unpreserved error could be reviewed on appeal, nor provided analysis or
    argument under the appropriate legal framework, we decline to consider this
    challenge further.
    III.   Constitutionality of RCW 9.41.250(1)(a)
    Woven into Helms’ attack on the charging instrument is a request for this
    court to hold that knowledge is an essential element of the charge of possession
    of a dangerous weapon. RCW 9.41.250(1)(a) reads in part, “Every person who:
    [m]anufactures, sells, or disposes of or possesses any instrument or weapon of
    the kind usually known as . . . metal knuckles . . . is guilty of a gross misdemeanor.”
    For this challenge, Helms analogizes to the mens rea required for the crime of
    possession of a controlled substance. Specifically, Helms seeks extension of the
    reasoning from State v. Blake, 1 arguing that offenses based on possession alone
    risk prosecution of “wholly innocent and passive nonconduct on a strict liability
    1 
    197 Wn.2d 170
    , 
    481 P.3d 521
     (2021).
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    No. 86857-8-I/9
    basis.” In response, the State again successfully argues a procedural barrier to
    our analysis of this assignment of error.
    The State properly notes that we presume that statutes are constitutional.
    State v. Zigan, 
    166 Wn. App. 597
    , 603, 
    270 P.3d 625
     (2012). When arguing a
    statute is unconstitutional, the challenger carries a “‘heavy burden of establishing
    its unconstitutionality beyond a reasonable doubt.’” State v. Haviland, 186 Wn.
    App 214, 218, 
    345 P.3d 831
     (2015) (quoting Amalg. Transit Union Loc. 587 v.
    State, 
    142 Wn.2d 183
    , 205, 
    11 P.3d 762
    , 
    27 P.3d 608
     (2001)). The State correctly
    contends that to prevail on this claim, Helms must engage in statutory
    interpretation of RCW 9.41.250(1)(a) to determine whether our legislature meant
    for it to be a strict liability crime and then apply the factors set out in State v. Bash,
    
    130 Wn.2d 594
    , 
    925 P.2d 978
     (1996) (plurality opinion). The creation of strict
    liability offenses is a legislative balancing act as they are historically disfavored. In
    the past, an “‘evil-meaning mind’” had to accompany “‘an evil-doing hand,’” but the
    legislature has increasingly turned to strict liability to place “the burden of care on
    those in the best position to avoid those harms.” State v. Yishmael, 
    195 Wn.2d 155
    , 163-64, 
    456 P.3d 1172
     (2020) (quoting Morisette v United States, 
    342 U.S. 246
    , 251, 
    72 S. Ct. 240
    , 
    96 L. Ed. 288
     (1952)). If “the State was improperly relieved
    of the burden of proving [the defendant] acted with knowledge . . . reversal would
    be required.” Id. at 163. In Yishmael, our Supreme Court referenced the factors
    it had previously set out in Bash that are to be considered when determining if “the
    legislature intended to create strict liability offense.”         Id. at 166.      Those
    considerations are as follows:
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    No. 86857-8-I/10
    (1) . . . the statute must be construed in light of the background rules
    of the common law, and its conventional mens rea element; (2)
    whether the crime can be characterized as a “public welfare offense”
    created by the Legislature; (3) the extent to which a strict liability
    reading of the statute would encompass seemingly entirely innocent
    conduct; (4) . . . the harshness of the penalty[;] . . . (5) the
    seriousness of the harm to the public; (6) the ease or difficulty of the
    defendant ascertaining the true facts; (7) relieving the prosecution of
    difficult and time-consuming proof of fault where the Legislature
    thinks it important to stamp out harmful conduct at all costs, “even at
    the cost of convicting innocent-minded and blameless people”; and
    (8) the number of prosecutions to be expected.
    Bash, 
    130 Wn.2d at 605-06
     (quoting 1 W AYNE R. LAFAVE & AUSTIN W. SCOTT,
    SUBSTANTIVE CRIMINAL LAW § 3.8, at 341-44 (1986)). Because Helms fails to
    properly mount this challenge, we do not consider this assignment of error further.
    IV.    Community Custody Conditions
    Helms next contends that the trial court imposed two community custody
    conditions that are not crime-related and should therefore be stricken as exceeding
    the court’s authority. We review de novo the statutory authority of the trial court to
    impose community custody conditions. State v. Armendariz, 
    160 Wn.2d 106
    , 110,
    
    156 P.3d 201
     (2007). If the trial court acted within its statutory authority, the
    imposition of sentencing conditions is reviewed for abuse of discretion. State v.
    Smalley, 25 Wn. App. 2d 254, 256, 
    522 P.3d 1037
     (2023). “A court abuses its
    discretion if, when imposing a crime-related prohibition, it applies the wrong legal
    standard.” In re Pers. Restraint of Rainey, 
    138 Wn.2d 367
    , 375, 
    229 P.3d 686
    (2010).
    The first challenged condition states that Helms “shall not possess or
    consume controlled substances . . . without a valid prescription” during his term of
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    No. 86857-8-I/11
    community custody.         However, it appears that Helms has misread RCW
    9.94A.703. He contends the prohibition on controlled substances was imposed
    pursuant to RCW 9.94A.703(3)(f), which pertains to discretionary conditions that
    must be crime-related. 2 However, the condition restricting his possession and use
    of controlled substances without a prescription is authorized by RCW
    9.94.703(2)(c), which reads, “Unless waived by the court, as part of any term of
    community custody, the court shall order an offender to . . . [r]efrain from
    possessing or consuming controlled substances except pursuant to lawfully issued
    prescriptions.” This community custody condition is waivable by the trial court, but
    will be imposed if the trial court declines to do so. 9.94A.703(2)(c). Thus, because
    the statute that explicitly authorizes the imposition of this community custody
    condition does not require any relation to the crime of conviction, the trial court did
    not abuse its discretion when it imposed this condition.
    The second condition Helms challenges requires that he “undergo an
    evaluation for treatment of anger management.”                The felony judgment and
    sentence (J&S) does not indicate the authority under which this community
    custody condition was imposed, nor did the judge offer any explanation at the
    sentencing hearing. Helms again claims that this condition is improper as it is not
    crime-related. However, RCW 9.94A.703(3) expressly grants a sentencing court
    discretion to order a defendant to “[p]articipate in crime-related treatment or
    counseling services,” under subsection (c), or “[p]articipate in rehabilitative
    2 Interestingly, Helms does not challenge another condition the court imposed, deemed
    discretionary by RCW 9.94A.703(3)(e), that ordered him to refrain from possessing or consuming
    alcohol while on community custody.
    - 11 -
    No. 86857-8-I/12
    programs or otherwise perform affirmative conduct reasonably related to the
    circumstances of the offense, the offender’s risk of reoffending, or the safety of the
    community,” under subsection (d). The jury verdict demonstrates that they found
    that Helms failed to prove that he acted in self-defense and, instead, credited
    Berezhnoy’s claim that Helms attacked him unprovoked. On that factual basis,
    and with the clear discretion conferred by RCW 9.94A.703, Helms has failed to
    demonstrate that the trial court’s imposition of the requirement to obtain an anger
    management evaluation constitutes an abuse of discretion.
    V.     Legal Financial Obligations
    Finally, Helms argues and the State concedes, that the court erred in
    imposing certain legal financial obligations (LFOs) despite its finding of indigency.
    At sentencing, the court expressly found Helms indigent, yet on the felony J&S,
    the judge imposed the then-mandatory $500 victim penalty assessment (VPA)
    and, on the misdemeanor J&S, ordered that Helms pay supervision fees to DOC
    and the collection cost of any unpaid LFOs. After Helms’ sentencing on December
    7, 2022, the legislature amended a number of statutes related to the imposition of
    LFOs on indigent defendants. See former RCWs 7.68.035(4) (2018), amended by
    LAWS OF 2023, ch. 449, § 1; 9.94A.703 (2021), amended by LAWS OF 2022, ch. 29,
    § 8; 10.82.090(1) (2018), amended by LAWS OF 2022, ch. 260, § 12. These
    statutory amendments apply to Helms because they became effective while his
    case was pending appeal. State v. Ramirez, 
    191 Wn.2d 732
    , 747-50, 
    426 P.3d 714
     (2018). Accordingly, we accept the State’s concession and remand for the
    trial court to strike the VPA and DOC supervision fees from Helms’ J&Ss.
    - 12 -
    No. 86857-8-I/13
    Affirmed in part, reversed in part, and remanded for the trial court to strike
    the LFOs.
    _____________________________
    WE CONCUR:
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Document Info

Docket Number: 86857-8

Filed Date: 11/25/2024

Precedential Status: Non-Precedential

Modified Date: 11/25/2024