          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                      )        No. 76819-1-1
                                          )
                     Respondent,          )
                                          )        DIVISION ONE
                     v.                   )
                                          )
RANDY EUGENE HAMILTON,                    )        UNPUBLISHED OPINION
                                          )
                     Appellant.           )        FILED: March 18, 2019
                                          )

        MANN, A.C.J. — Randy Hamilton appeals his conviction of assault in the second

degree under ROW 9A.36.021(1)(a)for punching Eric Friel. Hamilton argues:(1)that

the court erred by giving a first aggressor instruction,(2) the State failed to prove the

absence of self-defense beyond a reasonable doubt,(3)the trial court committed

prejudicial error by commenting on the evidence, and (4) that the prosecutor committed

misconduct during closing argument. We affirm.

                                              I.

       On the evening of Friday, December 11, 2015, Friel and his partner, Darlene

Howerton, went to a bar at Riverside Lanes in Mount Vernon for Friday night karaoke.

The karaoke show was hosted by Hamilton. Friel and Howerton were regulars at
No. 76819-1-1/2

Hamilton's weekly show. Christopher Camp, another friend, accompanied Friel and

Howerton as a designated driver.

        Hamilton and Friel were close friends for several years before the December

2015 incident. Friel and Hamilton's relationship, however, was recently strained.

Hamilton suspected Friel was stealing his karaoke business by hosting his own karaoke

nights at his house.'

       Toward the middle of the night on December 11, a friend of Friel's wanted Friel to

sing a karaoke song and offered to take Friel's song slip up to Hamilton. Hamilton

refused to play the song. Later in the night, another friend was singing a song with the

words "got a good woman at home" and Hamilton said over the microphone,"so does

Eric [Friel]," or "I bet Eric [Friel] does too." Friel took Hamilton's comment as

condescending, because at the time he was unemployed and being supported by

Howerton.

        As the night was ending, Hamilton packed up some of his karaoke gear and took

it to his car in the back-parking lot. Hamilton started his car to let it warm up and then

went back into Riverside Lanes to finish cleaning up. Hamilton and the State presented

conflicting stories of the events that happened next.

        According to the State, on December 12 at about 1:30 a.m., Friel went out the

back door of Riverside Lanes with Camp to smoke a cigarette while Howerton paid their

tab. Camp's car was parked nearby and they were getting ready to leave. The State

argues that Hamilton came out to confront Friel; he was upset Friel was at the show.



        1 Friel testified that he hosted free shows on the same nights as Hamilton but Friel was under the
impression that Hamilton got paid regardless of the amount of people who showed up to Hamilton's
karaoke nights. That was Friel's assumption and not based on anything Hamilton told him.

                                                    2
No. 76819-1-1/3

Hamilton walked straight up to Friel and positioned his body in front of him. Hamilton

held his arms out to the side and said something to the effect of, "What did you want to

talk to me about?" Friel sensed he was about to be assaulted, flicked his half-smoked

cigarette away, and removed his glasses. Hamilton then hit Friel with a hard and fast

left hook to the face. The force of the blow sent Friel back into the glass door he was

standing next to, which shattered or "spiderweb[bed]." Camp intervened and escorted

Hamilton away from Friel. After a brief discussion in the interior hallway with Camp,

Hamilton came out, surveyed the scene, and left.

       According to Hamilton, while he was on his way to the car, he came upon Friel

and Camp standing just outside the exit smoking a cigarette. Hamilton did not know

Camp well and was concerned Friel and Camp might be planning to ambush him.

Hamilton asked Friel whether Friel had anything to say to him:"What do you want to talk

to me about?" Hamilton made a common movement while asking this question—he

opened his palms and spread his arms slightly. Friel did not respond verbally; instead,

he looked away from Hamilton, flicked his cigarette, and removed his eyeglasses.

Hamilton knew that Friel took off his glasses before he threw a punch or got into a fight.

Camp thought Friel removed his glasses because he was preparing to fight Hamilton.

Hamilton also knew that Friel drank a lot of alcohol that night. Because he suffered

from a bad back and did not want to get injured further; Hamilton protected himself by

striking first; he "instinct[ively]" threw a punch at Friel, who fell and broke his nose.

       A surveillance video camera captured the events outside of Riverside Lanes

without audio. The video shows Hamilton looking at Friel leaning on the wall next to the

back door. As Hamilton exits Riverside Lanes, he approaches Friel and appears to say


                                              3
No. 76819-1-1/4

something to Friel with both of his arms slightly outstretched with his palms facing

forward. In the video, as soon as Friel's glasses are in his hand, Hamilton punches Friel

in the nose. The force pushes Friel into the glass door and Friel falls to the ground.

The confrontation lasts approximately 6 seconds between the time Hamilton walked

outside to when Friel hits the ground. Camp, whose back was to the fight, becomes

aware of the situation and positions himself between Friel and Hamilton, directing

Hamilton back into the building. At the end of the video footage, Hamilton exits the

building less than a minute after the fight, walks across the parking lot to his car, and

drives away.

       The State charged Hamilton with assault in the second degree, malicious

mischief in the third degree, and harassment. The malicious mischief charge was

dropped in an amended information and the harassment charge was dismissed on the

State's voluntary motion to dismiss.

       At trial, Justin Mason, Howerton's son-in-law, testified that he had been in a fight

with Friel. Mason explained that Howerton and Friel were hosting a party at their home.

Mason was in the house asleep when he was woken by someone telling him his truck

was about to be hit. Mason angrily exited the house and bumped into Friel, knocking

him over. After getting off the ground, Friel "sucker punched" Mason,for no apparent

reason. Hamilton testified that he was aware of this altercation.

       Eric Bates, Hamilton's son, testified about a physical altercation with Friel when

they had a disagreement, which resulted in Friel tackling Bates to the ground. Bates

also testified that Friel came to his aid in two instances; one, where Bates was jumped

at a bar, and a second, outside the bar where Bates was engaged in a one-on-one fight.


                                             4
No. 76819-1-1/5

Hamilton witnessed, in the first instance, the altercation in the bar where Friel assisted

his son. Hamilton stated he was grateful that Friel came to his son's aid. But in the

second instance, Hamilton intervened, telling Friel to let his son fight one-on-one

because it was a fair fight.

       Hamilton testified that Friel would attack a person from behind to get an

advantage, implying that Friel does not fight fair. Hamilton testified that he felt if he

walked away from Friel, or turned his back to him, Friel may have "sucker punched"

him.

       At Hamilton's request, the trial court provided the jury with a full range of self-

defense pattern instructions including, 11 WASHINGTON PRACTICE: WASHINGTON PATTERN

JURY INSTRUCTIONS: CRIMINAL(WP1C)17.02 (lawful force), 17.04 (explaining actual

danger is not necessary), and 17.05 (no duty to retreat). At the State's request the trial

court also provided an instruction based on WPIC 16.04, which explains the restrictions

on lawful use of self-defense by a first aggressor.2 Hamilton objected to the first

aggressor instruction.

       The jury returned a guilty verdict. Hamilton moved for a new trial under CrR 7.4,

or an arrest of judgment under CrR 7.5. Hamilton argued the State did not prove

absence of self-defense beyond a reasonable doubt and the first aggressor instruction

resulted in prejudicial error. The court denied the posttrial motions and stayed

Hamilton's sentence, pending this appeal.


       2 Instruction 15 read:
                No person may, by any intentional act reasonably likely to provoke a belligerent
       response, create a necessity for acting in self-defense and thereupon use, offer, or
       attempt to use force upon or toward another person.
                Therefore if you find beyond a reasonable doubt that the defendant was the
       aggressor, and that defendant's acts and conduct provoked or commenced the fight, then
       self-defense is not available as a defense.

                                                  5
No. 76819-1-1/6

                                                   II.

       Hamilton first argues that the trial court erred by giving the first aggressor

instruction. We disagree.

       When there is credible evidence from which a reasonable juror could find that the

defendant provoked the need to act in self-defense, a first aggressor instruction is

appropriate. State v. Riley, 134 Wn.2d 904, 909-910, 976 P.2d 624 (1999); State v.

Sullivan, 196 Wn. App. 277, 289, 383 P.3d 574 (2016), review denied, 187 Wn.2d 1023

(2017). Whether the State produced sufficient evidence to justify the first aggressor

instruction is a question of law and reviewed de novo. Sullivan, 196 Wn. App. at 289.

We view the evidence in the light most favorable to the party that requested the

instruction—here, the State. Sullivan, 196 Wn. App. at 289. The State need only

produce some evidence that the defendant was the aggressor to meet its burden of

production. State v. Anderson, 144 Wn. App. 85, 89 180 P.3d 885(2008)(citing Riley,

137 Wn.2d at 909). The provoking act must be intentional and one that a "jury could

reasonably assume would provoke a belligerent response by the victim." State v.

Wasson, 54 Wn. App. 156, 159, 722 P.2d 1039 (1989).

       An aggressor instruction impacts a defendant's claim of self-defense, which the

State bears the burden of disproving beyond a reasonable doubt, therefore trial courts

should exercise care in giving first aggressor instructions. Riley, 137 Wn.2d at n.2.

       "'[A]n aggressor or one who provokes an altercation' cannot successfully invoke

the right of self-defense." Sullivan, 196 Wn. App. at 289 (quoting Riley, 137 Wn. 2d at

909). While our Supreme Court has urged care in giving the instruction,3 a first


         3 "While an aggressor instruction should be given where called for by the evidence, an aggressor
instruction impacts a defendant's claim of self-defense, which the State has the burden of disproving

                                                   6
No. 76819-1-1/7

aggressor instruction is appropriate "where (1) the jury can reasonably determine from

the evidence that the defendant provoked the fight;(2)the evidence conflicts as to

whether the defendant's conduct provoked the fight; or (3) the evidence shows that the

defendant made the first move by drawing a weapon." Anderson, 144 Wn. App. at 89

(citing Riley, 137 Wn.2d at 909-10). "A court errs when it submits an aggressor

instruction and the evidence shows that the defendant used words alone to provoke the

fight." Anderson, 144 Wn. App. at 89 (citing Riley, 137 Wn.2d at 909-10).

       Here there was sufficient evidence of at least an evidentiary conflict as to

whether Hamilton's conduct provoked the fight. As the trial court explained:

       I think Mr. Friel testified that the reason he took off his glasses and threw
       the cigarette away is he thought something was going to start or
       something to that effect. . . I think if you look at this video as well, I think
       it's conflicting of who the aggressor was. If you look at the video it's clear
       that Mr. Hamilton came out of the door of the bowling alley. It's
       conceivable the jury could say he's the one that confronted. He could
       have walked past Mr. Friel at the time. He's the one who confronted him..
       . I think there's enough there of conflicting evidence of who the aggressor
       was, whether the defendant was the one whose conduct really
       precipitated the fight. I think that's a jury decision. I think based upon that
       conflicting evidence I think I'm inclined to give the first aggressor
       instruction along with the self-defense instruction as well.

       We agree. Although words alone are insufficient to warrant a first aggressor

instruction, Hamilton's body language could be construed by a reasonable juror as

aggressive. See Riley, 137 Wn.2d at 911. From the surveillance video, it is apparent

that immediately after exiting Riverside Lanes, Hamilton walked straight to Friel, and

was close enough physically to Friel that he did not need to take a step forward to

punch Friel. Hamilton knew that Friel was drunk and had a tendency to be more


beyond a reasonable doubt. Accordingly, courts should use care in giving an aggressor instruction."
Riley, 137 Wn.2d at 910, n.2.


                                                   7
No. 76819-1-1/8

aggressive when drunk, yet immediately engaged him upon exiting Riverside Lanes.

Hamilton counters there was testimony by Camp that Hamilton's tone was not

aggressive, but Hamilton's body language and closeness to Friel could be construed by

a reasonable juror as aggressive.

       Hamilton argues that he subjectively believed in the moment he saw Friel and

Camp outside the back door of Riverside Lanes that they were about to ambush him.

Hamilton indicated he saw Camp standing on the path leading towards the parking lot,

and thought Camp was intentionally blocking the way to his car. At the same time, Friel

was standing next to the back door of Riverside Lanes giving Hamilton a menacing look.

Under those circumstances, Hamilton testified that he was "not turning [his] back on

[Friel]" because he was concerned Friel would attack him from behind.

       However, Hamilton's testimony is contradicted by both Camp and Friel's

testimony that they were outside merely waiting for Howerton and smoking a cigarette.

Additionally, the surveillance footage does not support two men lying in wait for

Hamilton. Camp has his back to the door when Hamilton exited the building, and did

not make any aggressive movement towards Hamilton once he realized that Hamilton

punched Friel. Instead, Camp intervened between Hamilton and Friel, and redirected

Hamilton back inside Riverside Lanes. Based on the visual evidence in the surveillance

video, a reasonable juror could have concluded that Hamilton's testimony was not

credible because he immediately approached Friel and did not look towards Camp's

direction once Friel fell to the ground, suggesting Hamilton was not truly fearful of either

Friel or Camp.




                                             8
No. 76819-1-1/9

       Based on all the evidence presented by both the State and Hamilton, there is

sufficient conflicting evidence to warrant a first aggressor instruction.



       Hamilton next contends that the State failed to prove the absence of self-defense

beyond a reasonable doubt. We disagree.

       A defendant who claims to have acted in self-defense bears only the obligation to

produce evidence, from whatever source, tending to establish self-defense. State v.

Roberts, 88 Wn.2d 337, 345, 562 P.2d 1259 (1977). "The obligation to prove absence

of self-defense must remain at all times with the prosecution." Roberts, 88 Wn.2d at

345. The standard of review for whether the State proved the absence of self-defense

beyond a reasonable doubt is "whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt." State v. Green, 94 Wn.2d 216, 221,

616 P.2d 628 (1980).

      "Evidence of self-defense is evaluated 'from the standpoint of the reasonably

prudent person, knowing all the defendant knows and seeing all the defendant sees."

State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237 (1997). This standard has both

objective and subjective components. Walden, 131 Wn.2d at 474. The subjective

component requires the jury to perceive the situation as the defendant perceived it and

consider all the facts and circumstances known to the defendant at the time of the

incident. Walden, 131 Wn.2d at 474. The objective component requires the jury to

determine whether the defendant's actions comport with a reasonably prudent person

similarly situated as the defendant. Walden, 131 Wn.2d at 474.


                                             9
No. 76819-1-1/10

       Hamilton contends that he presented a wealth of evidence to support his self-

defense theory. This includes evidence demonstrating Friel was a frequent fighter,

fought more when he was drunk, and removed his eyeglasses immediately prior to

fighting. Additionally, the jury heard evidence from a law enforcement officer that

removing eyeglasses can be considered a "pre-attack indicator." Hamilton also

presented evidence that he believed Friel was about to punch him, that Hamilton was

unfamiliar with Camp, and worried about being ambushed by both Friel and Camp.

Finally, Hamilton was concerned about his injured back and that Friel may attack him

from behind if he attempted to walk away.

       However, as the State argues, it presented evidence demonstrating that

Hamilton was not acting in self-defense. The State presented evidence that this was an

unprovoked assault, which included Camp's testimony that he considered Hamilton a

friend, and Camp and Friel's testimony that they were waiting for Howerton to pay the

bar tab—not lying in wait for Hamilton. The jury also viewed the surveillance footage of

the incident and could have concluded that Hamilton was not afraid of being ambushed

by Camp because Hamilton did not look in Camp's direction after assaulting Friel.

       Although Hamilton did not have a duty to retreat, he could have avoided Friel by

waiting for him to leave or walking around him. Instead, Hamilton immediately engaged

Friel upon exiting Riverside Lanes, even though the surveillance video demonstrated

Hamilton had other options at his disposal. A juror weighing the evidence could have

concluded that since Hamilton immediately engaged Friel, he was looking for

confrontation.




                                            10
No. 76819-1-1/11

       Viewing the evidence in the light most favorable to the State, a reasonable juror

could have found that the State proved the absence of self-defense and elements of

assault beyond a reasonable doubt.

                                             IV.

       Hamilton next argues that the trial court impermissibly commented on the

evidence during closing. We disagree.

       The standard of review for a claim of judicial comment on the evidence is

whether the error was harmless beyond a reasonable doubt. State v. Levy, 156 Wn.2d

709, 712, 132 P.3d 1076 (2006). Under article IV, section 16 of the Washington State

Constitution, "[Budges shall not charge juries with respect to matters of fact, nor

comment thereon, but shall declare the law." A failure to object or move for a mistrial

does not foreclose a defendant from raising the issue on appeal because a comment on

the evidence is an error of constitutional magnitude. State v. Becker, 132 Wn.2d 54, 64,

935 P.2d 1321 (1997).

       A statement by the court is an impermissible comment on the evidence if either,

the court's attitude toward the merits of the case, or the court's evaluation relative to the

disputed issue is inferable from the statement. State v. Lane, 125 Wn.2d 825, 838, 889

P.2d 929 (1995). In determining constitutional error, the issue is whether the trial

court's feeling has been communicated to the jury as to the truth value of the testimony

of a witness. Lane, 125 Wn.2d at 838.

       If the court's statement was a comment on the evidence a reviewing court will

presume the comment was prejudicial. Lane, 125 Wn.2d at 838. The burden rests with




                                             11
No. 76819-1-1/12

the State to show that no prejudice resulted "unless it affirmatively appears in the record

that no prejudice could have resulted from the comment." Lane, 125 Wn.2d at 838-39.

       Hamilton argues the judge's reference to Mason's testimony that Friel sucker

punched someone in the past could have made a reasonable juror disregard Hamilton's

own testimony about witnessing Friel sucker punch someone in the past. During

closing argument, the defense objected to the State's characterization of the evidence

in the following exchange:

       Mr. Neilsen [State]: Again, because this was talked about, sucker puncher
       that was the term, I submit to you that was continually used by defense
       counsel but was not actually evidence in the trial brought up by the
       witnesses, right? But in this case who actually was the sucker puncher?
       It certainly wasn't Mr. Friel.

      Mr. Volluz [defense]: Your Honor, I'm sorry to object but just to bring up
      the fact that it was Justin Bates,[sic] who characterized the punch he got
      from Mr. Friel, as a sucker punch.

      The Court: Members of the jury, I believe there were some statements
      from that one witness in that regard. However as we previously instructed
      you are the determiners of the evidence. What you heard has been
      described and the descriptions by the attorney are not the evidence or not
      the law. You have to rely upon your memory as to what the witnesses
      testified to.[41

       The defense timely objected but mischaracterized the evidence by failing to

state that both Justin Mason and Randy Hamilton had testified that Friel sucker

punched someone in the past and incorrectly identified Eric Bates as the testifying

witness. The trial court agreed that there was testimony to that effect, but also

perpetrated the mischaracterization by agreeing with the defense counsel's incorrect

statement. The court indicated, however, that the jurors must rely on their memory of

the witnesses' testimony.


       4(Emphasis added.)


                                            12
No. 76819-1-1/13

      We first consider whether the statement by the trial court constitutes a comment

on the evidence. If a statement made by the trial court relates to a disputed issue of

fact, then an express conveyance of the judge's opinion to the jury regarding the

evidence is an impermissible comment on the evidence. Lane, 125 Wn.2d at 839. The

reviewing court can also focus on whether the comment could have influenced the jury.

Lane, 125 Wn.2d at 839.

      In Lane, the court commented on a disputed fact which improperly removed the

issue from the jury's determination. Lane, 125 Wn.2d at 837. Blake, a testifying

witness, had been released early from jail. Lane, 125 Wn.2d at 836. The defense in

Lane argued the State released Blake early in exchange for testimony, while the State

argued Blake's anonymity as an informant was revealed and he was placed in jeopardy,

requiring early release. Lane, 125 Wn.2d at 836, 839. The court commented on the

testimony stating:

      The sentence of William Blake was reduced to three months confinement
      and release date of June 8, 1988 given. The reasons advanced by the
      prosecutor and accepted by the judge related to Mr. Blake's safety and an
      inadvertent disclosure near [sic] of Mr. Blake's cooperation with authorities
      given to an unidentified person. Whether that last statement proves or
      does not prove anything is a matter for the jurors.

      Now instruction on the law. The testimony of Mr. Blake regarding prior
      statements of Mr. Anderson may be considered by you in determining Mr.
      Anderson's credibility and for no other purpose.

Lane, 125 Wn.2d at 837. Our Supreme Court held that the trial court had charged the

jury with a fact and expressly conveyed his opinion regarding the evidence, and thus the

statement was an impermissible comment on the evidence. Lane, 125 Wn.2d at 839.

The court in Lane, however, ultimately held that the constitutional error was harmless.




                                           13
No. 76819-1-1/14

"A constitutional error is harmless if the untainted evidence is so overwhelming that it

necessarily leads to a finding of guilt." Lane, 125 Wn.2d at 839.

       The State argues that the prosecutor's comment accurately represented the

evidence because the defense used the term "sucker puncher" during closing, but there

had been no actual testimony that Friel was a "sucker puncher." In the alternative, the

State argues that the court did not tell the jury to disregard Hamilton's testimony, and it

cannot be reasonably inferred that the court was specifically directing the jury to

disregard Hamilton's testimony because the court did not believe Hamilton.

       The statement by the trial court was not an impermissible comment on the

evidence. Although neither defense counsel nor the trial court properly characterized

the evidence, the court cautioned the jurors to use their own recollection of the evidence

and reminded them that closing argument was not evidence. The court only

commented on the evidence to rule on the defense's objection. The court agreed with

defense counsel that there was testimony about sucker punching but did not make any

statement about the testimony that would tend to create the inference that the judge

believed or disbelieved any of the testimony about sucker punching.

       We conclude that the trial court did not improperly comment on the evidence.

                                             V.

       Hamilton next argues that the prosecutor committed misconduct during closing

argument. We disagree.

       Allegations of prosecutorial misconduct are reviewed for abuse of discretion.

State v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125 (2014). "If the defendant fails to

object or request a curative instruction, the issue of misconduct is waived unless the


                                            14
No. 76819-1-1/15

conduct was so flagrant and ill intentioned that an instruction could not have cured the

resulting prejudice." Lindsay, 180 Wn.2d at 430. "When reviewing a claim that

prosecutorial misconduct requires reversal, the court should review the statements in

the context of the entire case." State v. Thorgerson, 172 Wn.2d 438, 443, 258 P.3d 43

(2011).

      We first consider whether the prosecutor's comments were improper, and if so,

whether the improper comments caused prejudice. Lindsay, 180 Wn.2d at 431. A

prosecutor may not express a personal opinion as to credibility of a witness or the guilt

of a defendant. Lindsay, 180 Wn.2d at 438. Additionally, a prosecutor may not "present

altered versions of admitted evidence [during closing arguments]to support the State's

theory of the case." State v. Walker, 182 Wn.2d 463, 477, 341 P.3d 976 (2015).

       If we find that the prosecutor's comments were improper, a defendant must also

demonstrate that the statement caused prejudice. Lindsay, 180 Wn.2d at 440. To

show prejudice, the defendant must show a substantial likelihood that the prosecutor's

statements affected the jury verdict. Lindsay, 180 Wn.2d at 440.

       Hamilton argues that the prosecutor committed misconduct in three ways: first,

by arguing no evidence supported Friel being a "sucker puncher," second, by improperly

inserting his personal belief that the punch Hamilton threw, "looked like a hard hit to

me," and third, by improperly quoting "unspecified extra-record legal authority."

       The defense timely objected to the first alleged act of misconduct, but failed to

object during closing, or in a posttrial motion to the second or third alleged acts of

misconduct. Both the second and third issues were waived because Hamilton failed to

object and the alleged misconduct does not rise to the level of being so flagrant and ill


                                             15
No. 76819-1-1/16

intentioned that an instruction could not have cured the prejudice that Hamilton alleges.

Consequently, we only address Hamilton's claim that the prosecutor committed

misconduct by arguing there was no evidence about Friel being a "sucker puncher."

      A misstatement of the evidence can constitute prosecutorial misconduct. Walker,

182 Wn.2d at 477. However, prosecutors have "wide latitude to make arguments and

draw inferences from the evidence." State v. Brown, 132 Wn.2d 529, 565, 940 P.2d

546 (1997). This claim is reviewed for an abuse of discretion. Lindsay, 180 at 430.

       In Walker, a case where the reviewing court found misconduct, the misconduct

was the result of a PowerPoint presentation used by the prosecutor during closing

arguments. Walker, 182 Wn.2d at 477. The presentation was prejudicial to the

defendant because the prosecutor's personal beliefs about the defendant were

apparent. Walker, 182 Wn.2d at 477. The court held that the PowerPoint presentation

was a mischaracterization of the evidence because it contained exhibits altered with

inflammatory captions and superimposed text, suggestive to the jury that the defendant

should be convicted because he was callous and greedy, rather than beeause the State

proved its case beyond a reasonable doubt. Walker, 182 Wn.2d at 477.

       Here, the State argues that the prosecutor's statement during rebuttal argument

was not a mischaracterization of the evidence because the prosecutor was responding

to the defense's repeated characterization of testimony that Friel is a "sucker puncher"

rather than the actual testimony that Friel had "sucker punched" people in the past. The

defense characterized Friel as a "sucker puncher" multiple times during closing:(1)

"[t]he first thing [Randy] knows is that Eric is a sucker puncher,"(2)"Randy also knows

that Eric is a sucker puncher from the incident at the Castle Tavern,"(3)"these are the


                                           16
No. 76819-1-1/17

things that Randy knows about Eric and that he is a sucker puncher," and (4)"[Nere's a

few things for you to consider based on the evidence. . . . Randy is not a sucker

puncher. That's Eric Friel."

        The prosecutor's response to the defense's portrayal of the testimony at trial was

not improper because it did not mischaracterize the evidence. Rather the prosecutor

was countering the defense's portrayal of the evidence, indicating that there was no

testimony that Friel was a "sucker puncher."

                                                    VI.

        Finally, Hamilton argues that he was denied the right to a fair trial based on the

cumulative error doctrine. We disagree.

        "Cumulative error may call for reversal, even if each error standing alone would

be considered harmless." Thorgerson, 172 Wn.2d at 454. The doctrine does not apply,

however,"where the defendant fails to establish how claimed instances of prosecutorial

misconduct affected the outcome of the trial or how combined claimed instances

affected the outcome of the trial." Thoroerson, 172 Wn.2d at 454.

        Hamilton argues, in the alternative, that he was denied a fair trial because he

"presented comprehensive evidence supporting his defense that he struck Friel in self-

defense."5 Hamilton argues that the evidence, coupled with the court's comment about

"sucker punches," and the prosecutor's misconduct, in combination prejudiced

Hamilton's ability to obtain a fair trial.


        5 Hamilton argues in his brief: "Hamilton presented comprehensive evidence supporting his
defense that he struck Friel in self-defense. The evidence showed that Friel is known to remove his
eyeglasses before fighting, that it was reasonable to interpret Friel's removal of his eyeglasses as a threat
on December 11, that Friel fought more when he was drunk, that Friel was drunk that night, that Hamilton
reasonably believed Friel was angry at Hamilton, that Hamilton had an injured back to protect, and that
Friel had possible backup in his friend Camp, whereas Hamilton came outside alone. Yet the instructions
removed self-defense from the jury by injecting the first aggressor instruction."

                                                    17
No. 76819-1-1/18

      Since none of the alleged misconduct was improper, Hamilton failed to show how

the combined effect of the alleged misconduct affected the outcome of the trial.

      We affirm.




                                                         7/e,/
WE CONCUR:




                                          18
