                                                                                                                     DIVISION II
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        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO

                                                      DIVISION II

STATE OF WASHINGTON,                                                               No. 44268 -0 -II


                                     Respondent,


          v.




ROY EUGENE MILLER,                                                           UNPUBLISHED OPINION


                                     Appellant.




          LEE, J. —    A jury convicted Roy Eugene Miller of second degree assault with a deadly

weapon enhancement, a           firearm      enhancement, and a       domestic   violence enhancement.           The jury

also convicted      Miller   of possession of a         dangerous   weapon.    Miller appeals arguing that ( 1) the

trial   court   improperly     excluded evidence         that the   victim was a   drug   dealer, ( 2) the prosecutor


committed misconduct, and ( 3) he received ineffective assistance of counsel. We affirm Miller' s


convictions.




                                                           FACTS


          Miller and Rachel Robinson lived together for several years and have a son in common.


After their relationship ended, Robinson moved out of the house and their son continued to live

with    Miller.    But, Robinson went to Miller' s house almost every day to see her son. On July 13,

2012, Robinson        was at   Miller'   s   house.    She put her son to bed and made plans to come and pick


him up the        next afternoon.    The next morning, Robinson received a text message from Miller

stating that if     she came    to the house          she would   leave in   an ambulance.    In the late    afternoon,
No. 44268 -0 -II



Robinson        went      to the house to           pick   up her    son as planned.       She went into the .yard and began


picking berries while she waited to see if her son would come out to meet her.

          After       a   few   minutes,       Miller      came   running     out   toward her   holding   a   large   pipe.   When


Robinson saw Miller, she opened the pocketknife she was carrying and swung it at Miller

causing a superficial cut on his arm. Miller hit Robinson three times with the pipe: once on her

left hand, once on her left hip, and once across her shoulder blade. After Miller hit Robinson on

the   shoulder        blade,    she   fell    onto   the   ground.    Then Miller pulled a gun from his waistband, and


pointed    it   at   Robinson. Miller           stated, "    I   should   just finish   you off now,"   stomped on Robinson' s


ribcage and          left her   lying   on    the    ground.     1 A Report of Proceedings ( RP) at 62.


          Miller' s       neighbor      heard the       argument.      When he heard        a male voice yell, " Die,     bitch," he


called   the    police.        1A RP     at   47. Kalama Police Officer Jeff Skeie and Sergeant Stephen Parker


responded       to the     call.      When Skeie arrived on the scene, he secured several weapons in Miller' s


immediate possession: the gun, an illegal spring blade knife, a pocket knife, and a " Leatherman"

knife tool.      1A RP at 134. After speaking with Miller and Robinson, Parker arrested Miller.

          The State charged Miller with second degree assault with a firearm enhancement and a


deadly    weapon          enhancement.               The State also charged Miller with unlawful possession of a


dangerous weapon. Prior to trial, the State moved to exclude evidence related to Robinson using

or    selling drugs.        Miller argued that the evidence was relevant because it explained why he did

not want        Robinson in the house                  and   why he had        a   gun.   The trial court made the following

ruling:




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                    I can see where, potentially, this is relevant in a very narrow perspective
          of   his belief that       she' s     involved in          an   illegal activity.         Uh,   and   that— so   that it
          doesn' t cast dispurgeon [ sic] on him of, as you say of why he would not want her
          there. The problem is, now we' re looking at this great big open door to, you
          know,         really doing it or not? And, that' s where I' m having some real
                    was she

          problems with going down this path of trying a case about a drug deal because
          that'   s not what we' re           here for. Uh, it' s about an assault that took place, and, if –
          if there'   s some  way to fashion this in a very narrow —  um— restricted manner that

          that    was   his belief, then I could see where that —I, you know, may be willing to
          allow that. But, anything else that starts opening this great big door, you know, if
          that' s his belief and that' s what he told her and that' s why he told her, then it
          could be for a very limited purpose. So—

                      All   right.   I    will —  I do find there is at least some relevance, although very
          limited, and, you know, essentially we' re going to have to see how this evolves.
          But, if this starts evolving into a trial about a drug deal, I' m going to stop it right
          there, because that'            s   going down the          road      that'   s not relevant.      That' s a separate
          action    that    is   not at   the heart     Uh, and, as long as it continues to be
                                                         of   this   case.

          tied in and we' re not opening, as I said, this door to try a separate incident I will
          allow it. But, it — s going to have to be kept very narrow, and if it' s not then I
                              it'
          expect the objections and I will rule on it at that time. Okay.


1A RP     at   27, 30.      During trial, Miller did not attempt to introduce any evidence about Robinson

doing or selling drugs.

          At trial, Robinson testified to the facts                       stated above.        She also explained that she went to


the house, even after Miller told her not to, because he would often send her angry messages but

be fine   by    the time     she arrived at        the house to           see   her     son.   She also stated that she brought the


knife   with     her for her      own protection.             During cross -examination, Robinson testified that Miller

had assaulted her in the past.


          Miller testified to            support   his                  defense and
                                                          claim of self -                           lawful   use of   force.   Generally,

Miller' s      account      of   the incident      was        similar     to Robinson'         s.   He agreed that she was in the


backyard eating berries              when      he first   saw    her.       But, Miller testified that he did not pick up the




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No. 44268 -0 -II




pipe until he was outside, and he did not raise or swing the pipe until after Robinson attacked

him   with   the knife.     Miller testified that Robinson tried to stab him with the knife several times

and each     time he      responded with    the    pipe   to   keep   her from stabbing         or   cutting him.   He also


testified that he    never      threatened Robinson with the            gun.     Rather, he testified that during the

struggle with Robinson, the gun fell out of his waistband. When the gun hit the ground, a round

jammed in the       chamber.        While he was trying to clear the gun, Robinson began to get up, so

Miller put his foot on her shoulder, pushed her back down, and told her to stay on the ground.

          The jury found Miller guilty of second degree assault and possession of a dangerous

weapon.      The   jury   also entered    three   special verdict     forms     finding: ( 1)   Miller was armed with a


firearm, ( 2) Miller       was    armed with a     deadly      weapon (   the   pipe),   and ( 3) Miller and Robinson


were household or family members. Miller appeals.

                                                      ANALYSIS


A. EXCLUSION OF EVIDENCE


          Miller argues that the trial court erred by excluding evidence of Robinson' s drug use.

Miller'   s argument      is frivolous.    The trial court did not exclude all evidence that Robinson was


involved in     doing      or   selling drugs.    Rather, the trial court ruled that any evidence would be

limited to    evidence     that   was relevant    to the issues in the    case.     And, the trial court was clear that


it would not permit Miller to turn the trial into a trial about whether Robinson actually did or sold

drugs.    However, these ruling did not preclude Miller from asking Robinson directly about her

alleged drug use, or from presenting evidence to impeach her if she denied it. Further, the ruling

did not exclude Miller from testifying about his personal knowledge about Robinson' s

involvement in doing or selling drugs and how that related to his beliefs and actions at the time


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of   the incident.    Accordingly, the trial court did not exclude evidence that prevented Miller from
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presenting his defense           and   Miller' s   argument      fails.


B. PROSECUTORIAL MISCONDUCT


          Miller argues that the prosecutor committed misconduct by introducing improper opinion

testimony during its         redirect      examination          of   Sergeant Parker.                 Miller did not object to the


question or answer. Here, he has failed to meet the high burden imposed when a defendant fails

to object to alleged prosecutorial misconduct.


          To   prevail      on    a    prosecutorial       misconduct           claim,           a defendant must show that the


prosecutor' s conduct was              improper     and prejudicial.            State v. Thorgerson, 172 Wn.2d 438, 442,


258 P. 3d 43 ( 2011).        To show prejudice, a defendant must show a substantial likelihood that the


misconduct affected         the    verdict.    Thorgerson, 172 Wn.2d                       at    442 -43.   A defendant who fails to


object to the prosecutor' s improper act at trial waives any error, unless the act was so flagrant

and   ill intentioned that       an    instruction       could not   have       cured       the resulting    prejudice.   Thorgerson,


172 Wn.2d      at    443.   The focus of this inquiry is more on whether the resulting prejudice could

have been cured, rather than the flagrant or ill-intentioned nature of the remark. State v. Emery,

174 Wn.2d 741, 762, 278 P. 3d 653 ( 2012).




1
    In his issue statement, Miller also asserts that the trial court erred " when it refused to allow the
defense to elicit the fact that the complaining witness had not told the police that the defendant
had threatened her          with a gun."           Br.   of   Appellant        at   1.     However, Miller fails to support this
assertion with   any        argument or        authority.        RAP 10. 3(          a)(   6);    Cowiche Canyon Conservancy v.
Bosley,     118 Wn.2d 801,              809, 828 P. 2d 549 ( 1992) ( we do not consider issues that are
unsupported     by    citation    to   argument or        authority).         We do not address the issue any further.


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        Here, Miller points to one specific incident of alleged prosecutorial misconduct that


occurred during the prosecutor' s redirect examination of Sergeant Parker:

         STATE]:     Um, why didn' t you arrest Rachel Robinson?
         PARKER] : Well,      as far as the assault, we didn' t believe that she was the primary
        physical aggressor.



lA RP   at   193.   Miller argues that the prosecutor' s question was improper because it elicited

inadmissible    opinion    testimony.      Even assuming, without deciding, that the question was

improper, Miller has failed to meet his burden to show prejudice.


        If Miller had objected, the jury could have been instructed to disregard Sergeant Parker' s

answer. We     assume     that juries   will   follow the   court' s   instructions.   State v. Weber, 99 Wn.2d


158, 166, 659 P. 2d 1102 ( 1983).        Therefore, if the jury had been instructed to disregard Parker' s

opinion that Robinson was not the primary aggressor, any prejudice from the comment would

have been cured. Because a jury instruction could have cured the prejudice, Miller has failed to

meet his burden to prove prosecutorial misconduct.


C. INEFFECTIVE ASSISTANCE OF COUNSEL


        We    review   ineffective   assistance     of counsel     claims    de   novo.   State v. Sutherby, 165

Wn.2d 870, 883, 204 P. 3d 916 ( 2009).            A defendant claiming ineffective assistance of counsel

has the burden to establish that ( 1) counsel' s performance was deficient and ( 2) the performance

prejudiced   the defendant'   s case.    Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,


80 L. Ed. 2d 674 ( 1984).      Failure to establish either prong is fatal to an ineffective assistance of

counsel claim. Strickland, 466 U.S. at 700.




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        Counsel'   s    performance          is    deficient    if   it     falls   below     an    objective    standard   of



reasonableness.     State    v.   Stenson, 132 Wn. 2d 668, 705, 940 P. 2d 1239 ( 1997).                       Our scrutiny of

counsel' s   performance       is   highly    deferential;     we        strongly   presume       reasonableness.     State v.


McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995).                         To rebut this presumption, a defendant


bears the burden of establishing the absence of any legitimate trial tactic explaining counsel' s

performance.    State   v.   Grier, 171 Wn. 2d 17, 33, 246 P. 3d 1260 ( 2011).                     Here, Miller cannot meet


his burden to show the absence of any legitimate trial tactic explaining defense counsel' s

decision not to ask the trial court to strike Robinson' s references to prior abuse by the defendant.

        Miller asserts that he received ineffective assistance of counsel because his defense


counsel did not ask the trial court to instruct the jury to disregard several of Robinson' s

nonresponsive      answers     regarding      prior assaults        by   the defendant.       Specifically, he argues that

Robinson'    s comments were         inadmissible propensity               evidence.    However, as the State correctly

points out, the question currently before this court is not whether Robinson' s statements were

admissible under       ER 404( b), but rather whether Miller can meet his burden to show ineffective


assistance of counsel on appeal.




        During Miller' s cross -examination of Robinson, the following four exchanges took place:

         DEFENSE]:           So, why do you think you needed a knife that time?
         ROBINSON]:           Because me and him got in fights. I know how he is. I' ve put up
        with him hitting me upside the head and my ear bleeding. I mean, he' s pulled his
        gun on me       in front     of our       son.   This is just him, I        mean,   he'    s—   and yeah, I' ve
        fought back      previous     times, too.        And this time I felt a little bit better and he also
        was   telling   me    that he   was       getting —giving my Giving my car key
                                                                              stuff   away.
        away, my spare car key, and the X - ox, the Wii, he said he was, you know,
                                              B
        giving —getting rid of all my stuff. Giving it away to someone who despises me.
        And I have no idea who that was.
         DEFENSE] : And so you took the knife there to stab him?




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          DEFENSE]:             You said you hadn' t really paid attention to that gun before?
          ROBINSON]:             Oh, I got it pulled on me so many times, it' s not that I don' t pay
          attention to it. I kind of got used to him pulling a gun on me.

          DEFENSE] : Are you aware that he has some physical limitations?
          ROBINSON]:             What do     you mean    by that?   Physical limitations?
          DEFENSE]: Bad back, a bad left arm?
          ROBINSON]:             Yeah, that' s never stopped him before from beating on me.
          DEFENSE]:             Okay, that wasn' t really my question. My question was you' re
          aware that he has the bad back?


          DEFENSE] :            You weren' t trying to set [ Miller] up were you?
          ROBINSON]:              No, I wasn' t. I' ve never done that. If that was the case, I would
          have done it      a   long   time ago.    All the twenty, thirty other times he' s beat on me.
          That    was not   my intention — did not. The neighbors called that I don' t talk to, I
                                          I
          don' t talk to his        neighbors.     I wanted to get arrested because I was afraid of
          Miller], the way he             would react,   I   mean, and   I   asked   Officer Skeie,   who —you

          know,    who called       the   cops?   And he said the neighbor.

1 A RP at 86, 88, 93, 95.


          Miller' s defense was primarily that Robinson was the primary physical aggressor and that

he   acted   in        defense.
                  self -               Miller also argued that Robinson set him up to get him arrested.

Robinson'    s    answers       during    cross -examination     could   actually    support   Miller'   s   theories.   For


example, Miller implied that it was not plausible that Robinson would have gone to Miller' s


house if she was legitimately afraid of being assaulted, and therefore, she went there to attack

Miller.     Further, if Miller had repeatedly assaulted her, she would have a motive to set him up

and   get    him    arrested.          There are legitimate trial tactics that explain defense counsel' s


performance       in this   case.      Because Miller has failed to show the absence of any legitimate trial

tactic, he cannot show his defense counsel' s performance was deficient, and his ineffective


assistance of counsel claim must fail.




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        We affirm.


        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.




We concur:




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