                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                             June 11, 2019
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                 No. 51321-8-II

                                 Respondent,

         v.

 ERIC SHANTRELL SANDERS,                                        UNPUBLISHED OPINION

                                 Appellant.

        WORSWICK, J. — A jury found Eric S. Sanders guilty of fourth degree assault, attempting

to elude a pursuing police vehicle, failure to remain at an injury accident, and vehicular assault.

Sanders appeals his convictions and sentence, arguing that (1) the prosecutor committed

misconduct during closing arguments, (2) Sanders received ineffective assistance of counsel for

failing to object to a jury instruction, (3) insufficient evidence supports the jury’s verdict on

vehicular assault because the State did not prove “substantial bodily harm,” and (4) certain legal

financial obligations (LFOs) should be stricken. We affirm Sanders’s convictions, but remand to

the trial court to strike certain LFOs.

                                               FACTS

        On April 22, 2017, Sanders was involved in a fight with his ex-girlfriend, Megan Wetter.

Several neighbors called the police. When Sanders saw the police arrive, he fled in his car.

While fleeing in reverse down an alley at approximately 35 to 40 miles per hour, Sanders struck

a pickup truck on its driver’s side door, deploying all of the truck’s air bags, and pushing the
No. 51321-8-II


truck roughly 10 feet onto a curb. The passenger in the pickup truck, P.L.,1 suffered a

concussion.

          The State charged Sanders with second degree assault,2 felony harassment,3 and

interfering with reporting domestic violence for the altercation with Wetter.4 The State also

charged Sanders with attempting to elude a pursuing police vehicle,5 failure to remain at an

injury accident,6 and vehicular assault.7

          At Sanders’s jury trial, Wetter testified to the facts regarding their altercation. P.L.

testified regarding the accident and her injuries. Responding police officers testified to the facts

above regarding the collision. P.L. was riding in her grandfather’s pickup truck. P.L. testified

that she had been looking down at directions on her phone, and when she looked up, she saw a

car reversing very fast toward the truck. The next thing she remembered was smelling smoke.

P.L. was dazed and confused, had difficulty getting the passenger door of the truck open, and had

to climb over the center console to get out of the driver’s side of the truck.

          P.L. testified that she was sore following the accident. On Monday, two days after the

accident, P.L. left school early with a bad headache. Tuesday, P.L. also left school early with a


1
    Because P.L. is a minor, her initials are used to protect her privacy.
2
    RCW 9A.36.021.
3
    RCW 9A.46.020.
4
    RCW 9A.36.150(1), (3).
5
    RCW 46.61.024(1).
6
    RCW 46.52.020(1), (4)(b).
7
    RCW 46.61.522.


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No. 51321-8-II


severe headache, and her mother took her to the emergency room. P.L. was given a CAT

(computerized axial tomography) scan, which was negative for any bleeding in the brain. The

emergency room physician who treated P.L. diagnosed her with a concussion and postconcussive

syndrome. P.L. was given medication for nausea and dizziness.

       P.L. continued to have headaches, which were generally triggered by light and sound.

P.L. also experienced memory problems and difficulty concentrating, particularly on

schoolwork. And P.L. was excused from band and physical education at school for two or three

months.

       The trial court instructed the jury on second degree assault and its lesser included offense

of fourth degree assault, interfering with reporting domestic violence, and felony harassment,

regarding the events involving Wetter, and also instructed the jury on attempting to elude a

pursuing police vehicle, failure to remain at an injury collision, and vehicular assault. The trial

court’s instruction on the definition of substantial bodily harm stated:

              Substantial bodily harm means bodily injury that involves a temporary but
       substantial loss of the function of any bodily part or organ.

Clerk’s Papers (CP) at 61. Sanders did not object to the instruction.

       During closing argument, the prosecutor discussed each element of all six charges and

identified the evidence that he believed supported a finding that the element was satisfied. For

the vehicular assault charge, the prosecutor argued that the element was satisfied if either P.L.

was knocked unconscious during the collision or if she suffered a concussion during the

collision. The prosecutor presented PowerPoint slides during its closing, including three slides

regarding the reasonable doubt standard. Sanders did not object to the slides, stating, “They




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No. 51321-8-II


sound okay.” 5 Verbatim Report of Proceedings (VRP) (Aug. 28, 2017) at 336. Three of the

slides stated:

                                          Reasonable Doubt

                Burden, NOT a barrier
                Reasonable doubt DOES NOT MEAN no doubt
                     Does NOT mean beyond ANY doubt
                     Does NOT mean beyond ALL doubt
                     Does NOT mean to a 100% certainty
                     Does NOT mean beyond a shadow of a doubt

                Beyond a REASONABLE doubt

                                          Reasonable Doubt

                THERE IS NO SUCH THING AS A PERFECT TRIAL
                    You could always find something else you wanted to see or
                      something else you wanted to hear

              Question: Do you have enough?
                        NOT Do you wish you had more

                                          Reasonable Doubt

                Must use reason
                Consider ALL the evidence as a whole
                ABIDING BELIEF???
                     Then you are satisfied beyond a reasonable doubt

Ex. 17.

          During his closing argument, Sanders argued that the State had failed to prove P.L.

suffered substantial bodily harm. In part, Sanders argued,

                  Now we are talking about the brain. So the brain here is either a bodily part
          or an organ, if you think a brain is an organ, and that’s for you to decide.

                  And now what does a brain do? Well, a brain does, everybody knows, a
          million things, and it has to be a substantial loss of the function of the brain. And
          of the million things that your brain helps you do, what did she really lose? Now,
          let’s look at what could be easily proved. If she lost eyesight caused by brain as


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No. 51321-8-II


       opposed to a damage to the eye, if she lost the ability to speak, if she couldn’t talk
       or walk or move her arm because of brain damage, all of the millions of things that
       your brain does, that could be something that if you had evidence of that, that could
       be a substantial loss.

                But what the State wants to put on here is that she may have been knocked
       silly for a split second, and later it caused her to have headaches and she had some
       sort of sensitivity to light and/or sound.

               Now, if you think that’s a substantial loss of your brain, a function of your
       brain, the defense would submit it’s not substantial. Given—if you think about all
       the things your brain does, that’s a pretty minor, little, tiny thing, and the reason
       that’s important is because when you compare this instruction to what it seems to
       be talking about—and you can talk among yourselves and think about it—is what
       are they really talking about here that’s a loss? And it would apply so easily to the
       kind of examples that I gave you.

5 VRP (Aug. 28, 2017) at 373-74. In rebuttal, the State responded to Sanders’s argument,

              The brain does a lot of other functions. It processes light and sounds. That’s
       some of the main functions of the brain, is taking our receptors from our eyes, our
       nose, our ears and taking that into actual experiences.

               Here, that was impaired because every time that her brain was trying to do
       that function with high-pitch sounds, she gets a headache. Every time she tries to
       do that with excessive light, she has a headache. And this didn’t last for a period
       of time; it was an extended period of time. This is a substantial loss and the ability
       of her young brain to work.

               And then, obviously, maybe one of the most direct functions of the brain is
       to be able to concentrate and think and do activity. She couldn’t do that in the same
       way that she could before. That’s why she had to be on a modified school
       assignment because she could no longer concentrate. And she talked about not only
       that, but it also made her start forgetting things where she would be in the middle
       of doing something and then she just wouldn’t remember what she was doing. And
       she would have to stop, think, okay, I am in the courtroom, and this is what I was
       about to be doing. That is a loss of—a substantial loss in the function of the brain.

              It doesn’t matter that the brain has millions of other functions. If the
       function of the brain, whichever one of those functions we are talking about is
       impaired, that’s a substantial bodily harm.




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No. 51321-8-II


5 VRP (Aug. 28, 2017) at 385-86. Finally, the prosecutor concluded his rebuttal argument by

discussing reasonable doubt:

       So lastly I want to talk about reasonable doubt. And here you’ll have Jury
       Instruction Number 2. This is what talks about reasonable doubt. And it’s
       important when you are talking about reasonable doubt to go back to what I said
       kind of at the beginning of my closing, which is, when you have questions, because
       everybody is going to have questions, there is always more things that I could have
       brought into the trial. You have to see whether or not they go to the elements. If
       they don’t go to the elements, they are not important. If they do go to the elements,
       question them.

               And here, at the end of Instruction 2, it kind of describes to you how you
       know whether you’ve met the reasonable doubt. It says—and this is the last line—
       “If from such consideration you have an abiding belief in the truth of the charge,
       you are satisfied beyond a reasonable doubt.” It’s not beyond all doubt or any
       doubt. That such a thing doesn’t exist in [sic] modern scientific world. The
       question is whether or not you, having seen the evidence, having heard the
       testimony of the witnesses, have an abiding belief that the defendant did in fact
       strangle Ms. Wetter, and I propose to you that, yes, he did. And the same thing, did
       he crash into the car and cause a substantial harm to [P.L.]? And I submit, yes, he
       did.

5 VRP (Aug. 28, 2017) at 388-89.

       The jury found Sanders guilty of fourth degree assault, attempting to elude a pursuing

police vehicle, failure to remain at an injury accident, and vehicular assault. The trial court

found that Sanders’s high offender score would result in some current offenses going unpunished

and warranted an exceptional sentence. The trial court found that Sanders was indigent, and

imposed the following LFOs: a crime victim assessment, a DNA (deoxyribonucleic acid)

collection fee, a criminal filing fee, and restitution. Sanders appeals.




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No. 51321-8-II


                                           ANALYSIS

A.     Prosecutorial Misconduct

       Sanders argues that the prosecutor committed misconduct by misstating the law regarding

substantial bodily harm and minimizing the burden of proof. Because Sanders did not object and

the prosecutor did not commit flagrant and ill-intentioned misconduct, Sanders has waived the

alleged errors regarding prosecutorial misconduct.

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

prosecutor’s conduct was both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 756,

278 P.3d 653 (2012). Prejudice is established by showing a substantial likelihood that the

prosecutor’s misconduct affected the verdict. Emery, 174 Wn.2d at 760. We review allegedly

improper arguments “in the context of the total argument, the issues in the case, the evidence

addressed in the argument, and the instructions given.” State v. Russell, 125 Wn.2d 24, 85-86,

882 P.2d 747 (1994). Where a defendant does not object, 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 any resulting prejudice. Emery, 174 Wn.2d at 760-61.

       Sanders argues that the prosecutor improperly argued that any injury to the brain was

substantial bodily harm by stating, “‘If the function of the brain, whichever one of those

functions we are talking about is impaired, that’s a substantial bodily harm.’” Br. of Appellant

(quoting 5 VRP (Aug. 28, 2017) at 386). But the prosecutor repeatedly argued that P.L.’s

concussion symptoms were substantial because of their effect on her daily life and the extended

period of time they lasted. Therefore, taken in context, the prosecutor’s statements do not

constitute misconduct.



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No. 51321-8-II


       Moreover, Sanders did not object to this statement. Even if this one sentence could be

construed as a misstatement of the law, it could have been cured by a timely objection and an

instruction to disregard it. Accordingly, Sanders argument fails.

       Sanders argues that the prosecutor minimized the State’s burden of proof by showing the

jury a PowerPoint slide that asked, “Do you have enough?” Br. of Appellant at 14 (emphasis

omitted) (quoting Ex. 17). Specifically, Sanders argues that asking “do you have enough?”

improperly encouraged the jury to convict Sanders if the State presented prima facie evidence.

Br. of Appellant at 15. We hold that the prosecutor’s statement was not improper.

       In State v. Anderson, a factually similar case, the prosecutor argued, “A reasonable doubt

arising from the lack of evidence . . . is simply a question of do you have enough.” 153 Wn.

App. 417, 430, 220 P.3d 1273 (2009). We held these comments to be proper. Anderson, 153

Wn. App. at 430. Similarly here, the prosecutor’s argument was not improper.

B.     Ineffective Assistance of Counsel

       Sanders argues that he received ineffective assistance of counsel because counsel did not

object to the jury instruction defining substantial bodily harm. We disagree.

       The Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington Constitution guarantee a defendant the right to effective assistance of counsel. State

v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011), cert. denied, 135 S. Ct. 153 (2014). An

ineffective assistance of counsel claim is a mixed question of fact and law that we review de

novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). To prevail on an ineffective

assistance of counsel claim, the defendant must show that (1) counsel’s performance was

deficient and (2) counsel’s deficient performance prejudiced the defense. Grier, 171 Wn.2d at



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No. 51321-8-II


32-33. If the defendant fails to satisfy either prong, the defendant’s ineffective assistance of

counsel claim fails. Grier, 171 Wn.2d at 33.

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

reasonableness. Grier, 171 Wn.2d at 33. We engage in a strong presumption that counsel’s

performance was reasonable. Grier, 171 Wn.2d at 33. A defendant may overcome this

presumption by showing that “‘there is no conceivable legitimate tactic explaining counsel’s

performance.’” Grier, 171 Wn.2d at 33(quoting State v. Reichenbach, 153 Wash.2d 126, 130,

101 P.3d 80 (2004). Recently, our Supreme Court held that the record before this court must be

sufficient for us to determine what counsel’s reasons for the decision were in order to evaluate

whether counsel’s reasons were legitimate. State v. Linville, 191 Wn.2d 513, 525-26, 423 P.3d

842 (2018). If counsel’s reasons for the challenged action are outside the record on appeal, the

defendant must bring a separate collateral challenge. Linville, 191 Wn.2d at 525-26.

       Here, counsel’s reasons for failing to object to the jury instruction are not in the record

before this court. Therefore, we are unable to determine the legitimacy of counsel’s reasons for

failing to object to the jury instruction. Accordingly, under Linville, Sanders cannot show that

his counsel’s performance was deficient for failing to object to the instruction.

       Furthermore, defense counsel’s performance would not be deficient for failing to object

to the jury instruction defining substantial bodily injury. RCW 9A.04.110(4)(b) defines

substantial bodily harm, providing three separate types of injury that could be found to constitute

substantial bodily harm. It defines “substantial bodily harm” as bodily injury which (1) involves

a temporary but substantial disfigurement, or (2) causes temporary but substantial loss or




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No. 51321-8-II


impairment of the function of any bodily part or organ, or (3) causes a fracture of any bodily

part. RCW 9A.04.110(4)(b).

       Citing State v. Harris, Sanders argues that the instruction did not include the necessary

statutory language and was therefore improper. 164 Wn. App. 377, 263 P.3d 1276 (2011). He

contends, without support, that including the other prongs of substantial bodily harm “would

have clarified that the state must prove a considerable and non-fleeting level of harm in order to

convict for vehicular assault,” and “would have made plain to the jury that a mere de minimus

injury did not rise to the level” required for conviction. Br. of Appellant at 20.

       Harris stands for the proposition that a jury instruction must include necessary statutory

language. 164 Wn. App. at 387-88. Here, the jury instruction defined substantial bodily harm

based on the only type of injury that was relevant or supported by the facts—temporary but

substantial loss or impairment of the function of any bodily part or organ. The State did not

present any evidence that would support a finding the P.L. suffered any disfigurement or

fracture. Therefore, there was no reason to include the alternative types of injuries defined as

substantial bodily harm in the jury instruction. The instruction included the necessary statutory

language and explained the harm. And because the definition provides three distinct types of

qualifying injuries, providing the additional alternatives would not have changed the definition

of substantial bodily harm as it related to Sanders. Accordingly, Sanders’s defense counsel

would have had no reason to object to the jury instruction. Sanders has failed to show that his

counsel’s performance was deficient and his ineffective assistance of counsel claim should fail.




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No. 51321-8-II


C.     Sufficiency of the Evidence

       Sanders argues that the evidence was insufficient to support the jury’s verdict finding him

guilty of vehicular assault because the State failed to present sufficient evidence to prove P.L.

suffered substantial bodily harm. We disagree.

       Evidence is sufficient to support a conviction if, viewing the evidence in the light most

favorable to the State, any rational trier of fact can find the essential elements of the crime

beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). All

reasonable inferences from the evidence are drawn in favor of the State and interpreted most

strongly against the defendant. Salinas, 119 Wn.2d at 201. A claim of insufficiency of the

evidence “admits the truth of the State’s evidence and all inferences that reasonably can be

drawn therefrom.” Salinas, 119 Wn.2d at 201. Circumstantial and direct evidence are equally

reliable. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). Credibility determinations

are reserved for the trier of fact and cannot be reviewed on appeal. Thomas, 150 Wn.2d at 874.

       To prove vehicular assault, the State must prove a person operated a motor vehicle in a

reckless manner and caused substantial bodily harm. RCW 46.61.522(1)(a). And, as noted

above, an injury causing temporary but substantial loss or impairment of the function of any

bodily part or organ. RCW 9A.04.110(4)(b). To be substantial, the injury must demonstrate a

considerable degree of harm and must necessarily be greater than merely having some existence.

State v. McKague, 172 Wn.2d 802, 806, 262 P.3d 1225 (2011). Our Supreme Court has

approved of defining “substantial” as “‘considerable in amount, value, or worth.’” McKague,

172 Wn.2d at 806 (quoting WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2280 (2002)).




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No. 51321-8-II


       Sanders argues that, under McKague, P.L.’s concussion symptoms cannot be sufficient

evidence to support a finding that she suffered a substantial bodily injury. However, McKague

supports the State’s position here. In McKague, the court stated that “[the victim’s] concussion,

which caused him such dizziness that he was unable to stand for a time, was sufficient to allow

the jury to find that he had suffered a temporary but substantial impairment of a body part or an

organ’s function.” McKague, 172 Wn.2d at 806.8

       Here, viewing the evidence in the light most favorable to the State, P.L. suffered a

concussion and postconcussive syndrome that cause severe headaches and sensitivity to light and

sound that lasted for several months. P.L. was also unable to attend a full day of school for

almost three months. And P.L. suffered memory problems and difficulty concentrating. P.L.’s

symptoms are sufficient to support the jury’s finding that she suffered substantial bodily harm as

a result of the concussion and postconcussive syndrome.

D.     LFOs

       In a supplemental brief, Sanders argues that we should reverse the trial court’s imposition

of the criminal filing fee and DNA collection fee. The State concedes that these LFOs should be

stricken. We agree.

       Recent legislation prohibits trial courts from imposing on indigent defendants criminal

filing fees or the DNA collection fee if the offender’s DNA has already been collected as the



8
 Sanders seems to argue that the Supreme Court’s holding that the evidence was sufficient to
support the jury’s verdict was based on the concussion combined with lacerations and facial
bruising and swelling. But the court clearly stated that the lacerations and facial bruising and
swelling constituted substantial but temporary disfigurement. McKague, 172 Wn.2d at 806. The
concussion independently supported a finding that the victim suffered a temporary but
substantial impairment. McKague, 172 Wn.2d at 806.


                                                12
No. 51321-8-II


result of a prior conviction. RCW 36.18.020(2)(h); RCW 43.43.7541. The recent legislation

applies prospectively to defendants like Sanders, whose cases were pending appellate review and

were not yet final when the legislation was enacted. State v. Ramirez, 191 Wn.2d 732, 747, 426

P.3d 714 (2018).

       The trial court found Sanders indigent. The State notes that Sanders’s DNA has been

previously collected and is on file with the Washington State Patrol Crime Laboratory.

Therefore, we remand to the trial court to strike the criminal filing fee and DNA collection fee.

We affirm, but remand to the trial court to strike the criminal filing fee and DNA collection fee.

       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.



                                                                    Worswick, P.J.
 We concur:



 Glasgow, J.




 Cruser, J.




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