                                                                                            FILED
                                                                                 MUa C OF APPEA?
                                                                                               S
                                                                                       DIVISIONII

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                                                                                ST)

                                                                                BY




      iN 'I' C OUXI' 0Y APPEALS O
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                                           DIVISION II

STATE OF WASHINGTON,                                                No. 42352 9 II
                                                                              - -


                                 Respondent,

        V.




RONALD ALLEN BRADY,                                         UNPUBLISHED OPINION




             BRINTNALL,
        QUINN-                  J. =      A jury found Ronald Brady guilty of second degree

manslaughter     after   Brady shot   and killed Thomas McKenzie.   Brady appeals his conviction,

arguing that (1)the trial court -erred by excluding alleged impeachment evidence that Thomasl
was at the property to commit burglary, 2)the trial court erred by refusing to give Brady's
                                        (

proposed jury instruction on the right to resist a felony, 3) prosecutor engaged in misconduct
                                                           ( the

during closing argument, and (4)the evidence was insufficient to support the jury's verdict.

Brady also filed a statement of additional grounds (SAG)alleging several additional errors. We
hold the trial court did not err, Brady was not prejudiced by the prosecutor's improper remarks,



i
 We refer to Thomas McKenzie and his wife, Joanna McKenzie, by their first names for clarity.
We intend no disrespect.
2
    RAP 10. 0.
          1
No. 42352 9 II
          - -



and sufficient evidence supports the jury's verdict. In addition, Brady's SAG claims do not raise

any reversible error. Accordingly, we affirm.

                                                        FACTS


       Brady's house, located at 2155 State Route 508 (2155 property),
                                                                     burned down in 1996.

After the fire at the 2155 property, Brady lived in the house located on the adjoining property,

2137 State Route 508 (2137 property),
                                    while rebuilding the house on the 2155 property.

       On April 19, 2010, Deputy W. Duncan Adkisson of the Lewis County Sheriff's Office

responded   to the   report of     a   burglary   at   the 2155 property.   Brady reported that some of the

windows at the 2155 property had been tampered with and some things may have been missing

from the house. Adkisson told Brady it was possible that the people who had entered the house

may return and that law enforcement would check on the property later that evening.

       Despite Deputy Adkisson's assurance that law enforcement would check on the house,

Brady took his 12 gauge shotgun to the 2155 property, where he also kept his .22 rifle, and
                  -
                        for       return   of the   burglars." 4 Report     of   Proceedings (RP) at   548.   At
prepared [himself]            a




approximately 9:0 PM, Brady saw the lights of a vehicle in the driveway, opened the garage
               3

door, and began firing his . 22 rifle          at   the truck.   When one of the people in the driveway,

Thomas, turned a flashlight in Brady's direction, Brady fired at the light, hitting Thomas in the

chest. By the time the police arrived, Thomas had died.

       Thomas's wife, Joanna, was in the truck at the 2155 property when the shooting started.

Screaming, Joanna hid behind the truck to avoid getting shot. After Brady stopped shooting, she

ran to flag down a car and call 911.




                                                            2
No.42352 9 II
         - -



          On September 23, 2010, the State charged Brady with one count of first degree

manslaughter (Thomas) and       one   count of first   degree   assault (Joanna). On November 18, the


State filed an amended information charging Brady with first degree murder for Thomas's death.

          On December 1, 2010, the State moved in limine to exclude any evidence "that either

victim entered onto the property of the defendant prior to the time of the shooting or had any

involvement in the suspected burglary of the defendant's building earlier that day." 1 Clerk's

Papers (CP) at 21. The State also moved to exclude any evidence about why the McKenzies

were at the property, that the McKenzies had burglary tools in their truck, that the police later

recovered stolen property from Thomas's house, and that Joanna had pleaded guilty to attempted

residential burglary for entering Brady's property. The trial court granted the State's motion.

           Brady's jury trial began on June 20, 2011. Joanna testified that she and Thomas pulled

into the driveway of the 2155 property just before 10 PM on April 19, 2010. Thomas got out of

the car and knocked on the door of the house. Shortly thereafter, the garage door opened and the

shooting started. During the shooting, Joanna hid behind the truck and began screaming "as loud
as [   she] could. "2 RP at 201. Then she saw Thomas fall to the ground and stop moving. After
                    -


the shooting stopped, Joanna flagged down a car and used the driver's cell phone to call 911.

           Brady testified that after reporting the earlier burglary, he ate dinner, gathered his 12-'

gauge shotgun, went to the 2155 property, and "prepared [himself] for a return of the burglars."
4 RP at 548.      Brady stored his .22 rifle at the 2155 property. Brady "settled in"at the 2155

property around 7:0 PM and read internet websites on his laptop until about 9:0 PM. 4 RP at
                 0                                                           3
549. At 9:0 PM, Brady got up to stretch his legs, bringing the .22 rifle with him. At that point,
         3

Brady observed a truck pull into the driveway and what appeared to be flashlights outside the


                                                       3
No.42352 9 II
         - -



house.    Brady testified that he tried to call 911 but forgot to hit send on his cell phone after

dialing in the number.

         Brady testified that he heard the people outside say, The cops are on the way," he
                                                               "`                      so

figured [he] better try to disable their vehicle." 4 RP at 552. He opened the garage door and

attempted to disable the truck by trying to shoot out the tires. Brady testified that after he began

shooting,

         I had two flashlights shine on my face from. bout 90 degrees directly, so it was
                                                    a
         from separate directions. And I         thought it very strange, bizarre that instead of
         retreating that they were holding       flashlights   at   me.   And I --   only thing I could
         think of in   an   instant is that   they -- the only reason why people would not be
         afraid of somebody with a weapon is that they had a weapon. So I was afraid for
         my life.

4 RP at 553. Brady testified that at that point he began shooting at the light.

         The trial court instructed the jury on first degree murder and the lesser included offenses

of second degree murder, first degree manslaughter, and second degree manslaughter. The jury

was also instructed on first degree assault and.the lesser included offense of second degree

assault. In addition, the trial court instructed the jury on justifiable homicide as a defense to the
         '



3
    The justifiable homicide instruction stated,
                  It is a defense to a charge of Murder in the First Degree, Murder in the
          Second Degree, Manslaughter in the First Degree, and Manslaughter in the
          Second Degree that the homicide was justifiable as defined in this instruction.
                  A person is entitled to act on appearances in defending himself, if that
          person believes in good faith and on reasonable grounds that he is in actual danger
          of great personal injury, although it afterwards might develop that the person was
          mistaken   as   to the extent of the   danger. Actual danger is not necessary for a
          homicide to be justifiable.
                 Homicide is justifiable when committed in the lawful defense of the slayer
          when:
                 1)the slayer reasonably believed that the person slain or others whom the
          defendant reasonably believed were acting in concert with the person slain
          intended to inflict death or great personal injury;
                                                       4
No. 42352 9 II
          - -



murder and manslaughter charges as well as the use of lawful force as a defense to the assault

charges.

          On June 24, 2011, the jury found Brady guilty of second degree manslaughter with a

firearm enhancement but the jury acquitted him of all other charges. After the jury acquitted

Brady of the assault against Joanna, the trial court gave the jury special verdict forms to



                 2)the slayer reasonably believed that there was imminent danger of such
          harm being accomplished; and
                 3) the slayer employed such force and means as a reasonably prudent
          person would use under the same or similar conditions as they reasonably
          appeared to the slayer, taking into consideration all the facts and circumstances as
          they appeared to him, at the time of and prior to the incident.
                  The State has the burden of proving beyond a reasonable doubt that the
          homicide was not justifiable. If you find that the State has not proved the absence
          of this defense beyond a reasonable doubt, it will be your duty to return a verdict
          of not guilty.
2 CP at 231.

4
    The lawful use of force instruction stated,
                It is a defense to a charge of Assault in the First Degree and Assault in the
          Second Degree that the force used or attempted was lawful as defined in this
          instruction.
                  A person is entitled to act on appearances in defending himself, if he
          believes in good faith and on reasonable grounds that he is in actual danger of
          injury, although it afterwards might develop that the person was mistaken as to
          the extent of the danger. Actual danger is not necessary for the use of force to be
          lawful.
                  The use of or attempt to use force upon or toward the person of another is
          lawful when used or attempted by a person who reasonably believes that he is
          about to be injured, and when the force is not more than is necessary.
                  The person using the force may employ such force and means as a
          reasonably prudent person would use under the same or similar conditions as they
          appeared to the person, taking into consideration all of the facts              and
          circumstances known to the person at the time of and prior to the incident.
                    The State has the burden of proving beyond a reasonable doubt that the
          force used or attempted by the defendant was not lawful. If you find that the State
          has not proved the absence of this defense beyond a reasonable doubt, it will be
          your duty to return a verdict of not guilty.
2 CP at 242.


                                                    a
No.42352 9 II
         - -



determine whether Brady was entitled to reimbursement for defense costs. The jury found that

1) Brady's use of force was lawful, and ( 2)Brady was engaged in "criminal conduct

substantially related to the events giving rise to the crime with which the defendant was

charged."2 CP at 269.

       On July 6, 2011, the trial court sentenced Brady on the second degree manslaughter

charge. Brady's standard sentencing range was 21 to 27 months. With the mandatory 36 month
                                                                                     -

firearm enhancement, Brady's standard sentencing range was 57 to 63 months. The trial court

sentenced Brady to 63 months confinement and 18 months community custody. Brady timely

appeals.

                                             ANALYSIS


IMPEACHMENT EVIDENCE


       Brady argues that the trial court violated his due process right to a fair trial by excluding

evidence which Brady claims was critical for impeaching Joanna's testimony. Brady specifically

argues that the trial court erred by excluding (1)Joanna's statements to the police after the

shooting, 2)
          ( evidence that Thomas and Joanna committed the earlier burglary, 3)
                                                                            ( evidence that

burglary tools and stocking caps were found in the McKenzies' truck at the time of the shooting,

4)evidence of stolen property that was later recovered from Thomas's house, 5)
                                                                            ( evidence that

Joanna was high on methamphetamine at the time of the burglary, and (6) s conviction
                                                                       Joanna'

for attempted residential burglary related to the 2155 property. The trial court found that the

majority of the evidence Brady sought to introduce was not known to him at the time of the

shooting   and was, therefore, irrelevant.   The trial court properly allowed Brady to introduce

specific evidence that was relevant to impeachment and did not err.



                                                 ON
    No. 42352 9 II
              - -



    IMPEACHMENT


            We review a trial court's evidentiary rulings limiting the scope of cross -examination for

    manifest abuse of discretion. State v. Campbell, 103 Wn. d 1, 20, 691 P. d 929 (1984),
                                                           2               2             cent.

    denied, 471 U. . 1094 (1985). The right to confront and cross -examine adverse witnesses is
                 S                "

    guaranteed by both the federal and state constitutions."State v. Darden, 145 Wn. d 612, 620, 41
                                                                                   2

    P. d 1189 (2002).But the right to confront and cross -examine.adverse witnesses is not absolute
     3

    and is limited by general considerations of relevance. Darden, 145 Wn. d at 621 (citing ER 401,
                                                                         2

    403; State v. Hudlow, 99 Wn. d 1, 15, 659 P. d 514 (1983)).
                               2               2

            Brady argues that Joanna's prior statements to the police are relevant impeachment

    evidence because they contradict the implication that Thomas and Joanna were at the 2155

    property for    a   lawful purpose.   ER    613 governs the admissibility of prior inconsistent

    statements. Under ER 613, prior inconsistent statements can only be admitted to impeach if the

    witness's testimony was a fact of consequence to the action. State v. Allen S., Wn. App. 452,
                                                                                  98

    468 69, 989 P. d 1222 (1999),
        =        2              review denied, 140 Wn. d 1022 (2000). If a witness claims he
                                                     2

1   cannot remember making the statement and says nothing from the witness stand that either party

    could have used for "its truth to prove a fact of consequence to the action,"
                                                                                prior inconsistent

    statements are not relevant or admissible for impeachment purposes. Allen S., Wn. App. at
                                                                                98

    469;   see   also 5D KARL B. TEGLAND, WASHINGTON PRACTICE:            COURTROOM HANDBOOK ON


    WASHINGTON EvIDENCE, at 361 (2012 13 ed.). other words, if the prior inconsistent statement
                                      -     In



    5 ER 613( )
            b provides,
             Extrinsic evidence of a prior inconsistent statement by a witness is not admissible
             unless the witness is afforded an opportunity to explain or deny the same and the
             opposite party is afforded an opportunity to interrogate the witness thereon, or the
             interests of justice otherwise require.

                                                       7
No. 423 52 9 II
           - -



does not contradict the witness's actual testimony, the prior inconsistent statement is not

inconsistent with that testimony and is inadmissible.

       Brady alleges that Joanna's.
                          prior statements to the police would show that she did not go

to the 2155 property for any reason other than to commit a burglary. But Joanna did not testify

about why she and Thomas went to the 2155 property. Accordingly, there was no testimony to

impeach with her prior statements to the police and the trial court did not abuse its discretion by

excluding evidence of Joanna's prior statements under ER 613.

       Brady also argues that ,the evidence proving Thomas and Joanna had committed the

earlier burglary at the 2155 property and the evidence, including Joanna's prior statements to the

police, proving Thomas and Joanna were at the 2155 property to commit another burglary was

impeachment testimony. But any evidence about the earlier burglary or evidence that Thomas
and Joanna intended to commit a burglary would be impeachment evidence if it contradicted

Joanna's testimony.. Because Joanna did not testify to anything related to the earlier burglary,

nor did she testify about why she and Thomas went to the 2155 property, the evidence that Brady

sought to introduce was not impeachment evidence. - - -- - - - -- —
    ht                        p

RELEVANCE


       Although Brady attempts to characterize the evidence he sought to introduce as

impeachment evidence, his arguments demonstrate that he wanted to introduce the evidence for

substantive purposes. Brady argues that because Joanna's testimony led " he jury to believe that
                                                                       t

she and her husband might well have been honest travelers stopping for aide [sic], acting in
                                                                                 not

any type of suspicious manner," evidence that Thomas and, Joanna were burglars would have
                              the
undermined her credibility. Br. of Appellant at 27. But Brady also argues that the trial court

denied him   a   fair trial                r                                         some
                              by excluding " elevant, exculpatory evidence"including "      of its best
No.42352 9 II
         - -



evidence to support the defendant's claims at trial."Br. of         Appellant   at 28 29.
                                                                                      -     Exculpatory

evidence and evidence used to prove the defendant's claims at trial is substantive, not

impeachment, evidence. Therefore,to be admissible, such evidence must be relevant.

        Evidence is relevant if it has "` ny tendency to make the existence of any fact that is of
                                        a

consequence to the determination of the action more probable or less probable than it would be
without the evidence."'
                     State v. Gregory, 158 Wn. d 759, 835, 147 P. d 1201 (2006) quoting
                                             2                  3               (

ER   401). If the trial court's evidentiary ruling is solely based on considerations of relevance,

unrelated to the defendant's right to confrontation or cross -examination of witnesses, we review

the trial court's decision for abuse of discretion. State v. Finch, 137 Wn. d 792, 810, 975 P. d
                                                                          2                  2

967, cent. denied, 528 U. . 922 (1999). The trial court abuses its discretion if the evidentiary
                        S

ruling is based on untenable grounds or untenable reasons. State ex rel. Carroll v. Junker, 79

Wn. d 12, 26, 482 P. d 775 (1971).
  2                2

        The evidence that Brady sought to introduce would be relevant if it tended to make the
                                                    .

fact that he acted in self defense
                           -         more   or   less   probable. For the purposes of proving a self-

defense claim,evidence is relevant if Brady knew_only about the evidence at the time of the

shooting. State v. Walker, 13 Wn. App. 545, 549 50, 536 P. d 657 (evidence of the victim's
                                                -        2

prior acts is admissible for proving a self -
                                            defense claim provided that the defendant was aware of

the acts at the time),
                     review denied, 86 Wn. d 1005 (1975).At the time of the shooting, Brady
                                         2
did not know that Thomas and Joanna had committed the earlier burglary at the 2155 property;

he also did not know about any of the evidence proving that Thomas and Joanna had arrived at

the 2155 property to commit a burglary. Accordingly, the evidence was irrelevant to proving his
self -
     defense claim and the trial court did not abuse its discretion by excluding it.



                                                        E
No.42352 9 II
         - -


OPINION TESTIMONY REGARDING JOANNA'S DRUG USE

        Finally, Brady argues that he was not permitted to introduce an officer's testimony that

Joanna's pupils were constricted because she had been using drugs on the night of the shooting.
But   Brady   mischaracterizes the trial court's   ruling. The trial court ruled that the officer who

spoke to Joanna on the night of the shooting was not qualified to offer an opinion about whether
Joanna's constricted    pupils   were   indicative of   drug use. Under ER 702, a witness must be

qualified as an expert by "knowledge, skill, experience, training, or education" before the
witness may testify to an opinion. Here, the officer was not a trained drug recognition expert

DRE),
    therefore he was not qualified as an expert to offer an opinion on whether Joanna's
restricted pupils were indicative of drug use. See State v. Baity, 140 Wn. d 1, 18, 991 P. d 1151
                                                                         2               2
2000) because DRE evidence is admissible under Frye v. United States, 293 F. 1013 (1923),
      (
a]properly qualified expert may use the 12 step protocol and the chart of categories of drugs to
                                           -
relate an opinion about the presence or absence of certain categories of drugs in a suspect's

system ").    Accordingly, the trial court did not abuse its discretion by excluding testimony from

the officer as to his speculative opinion regarding whether Joanna's constricted pupils were

indicative of drug use.

JURY INSTRUCTION


        Brady assigns error to the trial court's refusal to give his proposed instruction on the right
to resist a felony. The trial court properly instructed the jury on justifiable homicide and the
lawful use of force. Furthermore, the facts of the case did not support giving an instruction on

6
 The trial court permitted Brady to ask Joanna if she had used drugs on the night of the shooting,
but because Brady could offer no evidence establishing that Joanna had used drugs that night
outside of the officer's unqualified opinion testimony), Brady was limited to accepting Joanna's
answer.



                                                        10
No. 42352 9 II
          - -



resistance to a felony because any felony that may have been committed did not pose an

immediate threat of death or great bodily harm. Therefore, the trial court did not err by refusing

to give Brady's proposed instruction.

         We review a trial court's refusal to give a proposed jury instruction for abuse of

discretion. State v. Picard, 90 Wn. App. 890, 902, 954 P. d 336, review denied, 136 Wn. d
                                                        2                             2

1021 ( 1998). A    trial . ourt abuses its discretion when it exercises its discretion on untenable
                         c

grounds or for untenable reasons. Carroll, 79 Wn. d at 26. It is reversible error for a trial court
                                                2

to refuse to give a proposed instruction if the instruction states the proper law and the evidence

supports it. State v. Ager, 128 Wn. d 85, 93, 904 P. d 715 (1995).
                                  2                2

         Brady proposed the following jury instruction:

                It is a defense to a charge of murder or manslaughter that the homicide
         was justifiable as defined in this instruction.
                Homicide is justifiable when committed in the actual resistance of an
         attempt to commit a felony upon the slayer or in the presence of the slayer or
         upon or in a dwelling or other place of abode in which the slayer is present.
                The slayer may employ such force and means as a reasonably prudent
         person would use under the same or similar conditions as they reasonably
         appeared to the slayer, taking into consideration all the facts and circumstances as
         they appeared to him at the time and prior to the incident.
                                               -
                 The State has the burden of proving beyond a reasonable doubt that the
         homicide was not justifiable. If you find that the State has not proved the absence
         of this defense beyond a reasonable doubt, it will be your duty to return a verdict
         of not guilty.

1   CP   at   167; 11 WASHINGTON PRACTICE:          WASHINGTON PATTERN JURY INSTRUCTIONS:


CRIMINAL 16. 3, at 239 (3d ed. 2008).The trial court instructed the jury on justifiable homicide
           0

and the lawful use of force. But it refused to give Brady's proposed instruction because of the

time of the shooting, Brady was not resisting a felony that would have justified the use of deadly

force. The trial court determined that "
                                       the only crime that was committed at the time of the use

of the force here was a criminal trespass as there was no entry as required for a burglary. But
                                                  11
No. 42352 9 II
          - -



more to the point, even if the burglary was about to be committed or even had been committed,

there is no evidence that the actions of the decedent threatened the defendant's life of [ ic] great
                                                                                         s

bodily harm under the circumstances that would allow the defendant to use that claim."5 RP at

597. The trial court's refusal to give Brady's instruction was a proper application of the law to

the evidence and the trial court did not abuse its discretion by refusing to give Brady's

instruction on the right to resist the commission of a felony.

       Brady cites to cases addressing the standard we apply when determining whether a
defendant   was   entitled to   a   general        defense instruction.
                                              self -                      Brady is correct in stating that a

defendant is entitled to a general self -
                                        defense instruction once he has produced any evidence

supporting his self -
                    defense claim. State v. Adams, 31 Wn. App. 393, 395, 641 P. d 1207 (1982).
                                                                              2

Here, the trial court gave both self -
                                     defense instructions (justifiable homicide and lawful use of

force), the "any evidence"standard is not applicable to our analysis of whether the trial court
      and

erred by refusing to give Brady's proposed instruction on the right to resist a felony.

        When determining whether a defendant is entitled to an instruction based on the right to

resist the commission of a felony, the trial court engages in an "individualized determination of

necessity, even where an attack on the defendant's person occurred." State v. Brightman, 155

Wn. d 506, 522, 122 P. d 150 (2005).This is because any homicide, even one committed while
  2                  3

resisting the commission of a felony, is not justified unless the attack on the defendant's person
                                      "`

threatens life   or   great bodily harm. "'    Brightman, 155 Wn. d at 522 (quoting State v. Nyland, 47
                                                                2

Wn. d 240, 242, 28.7 P. d 345 (1955)). requirement that the felony being resisted poses a
  2                   2              The

threat to the defendant's life or great bodily harm applies to both crimes against the defendant's

person and the defendant's property. State v. Griffith, 91 Wn. d 572, 576, 589 P. d 799 (1979).
                                                             2                  2

        In Griffith, our Supreme Court summarized the facts as follows:
                                                        12
No. 42352 9 II
          - -



                When the evidence is viewed in the light most favorable to the defendant,
         it shows as follows: After the defendant had taken the [children's]
                                                                           basketball into
         his home and called the police, he went out to his car and obtained the gun,
         knowing that it was loaded. When Mr. Stillwell came to the door [to retrieve the
         children's basketball],the defendant engaged in discussion with him and then
         with Mr. York. During this discussion, the defendant was about 3 feet back from
         the doorsill, and his mother was standing to his right. Mr. York, according to the
         defendant's testimony, then stepped on the doorsill with one foot, and the
         defendant's mother moved forward. Mr. York placed one hand on the doorjamb
         and kept insisting that the basketball be returned to him. The basketball was on a
         chair approximately 5 feet behind the defendant. The defendant then brought his
         gun into sight, raised it and pointed it at Mr. York. The defendant testified that
         Mr. York made a comment to the effect that the defendant was imitating a
         television character and that Mr. York appeared to be moving toward him when
         he fired.


91 Wn. d at 575 76. Based on these facts, our Supreme Court held that " he use of deadly force
     2          -                                                     t

was   unjustified   as a   matter of law.   Griffith, 91 Wn. d at 576. Our Supreme Court noted, In
                                                           2                                    "`

order to sustain this assignment [of error] we would be required to hold that a simple assault or

ordinary battery would justify the taking of human life. We are not willing to stand sponsor for

such a doctrine."Griffith, 91 Wn. d at 577 (quoting State v. Churchill, 52 Wash. 210, 224, 100
                                2

P. 309 (
       1909)).

         Here, Brady's argument is even less persuasive than Griffith's.There was no evidence

that Thomas and Joanna actually attempted to enter the house on the 2155 property when Brady

started shooting.      Importantly, Brady testified that he began shooting because he thought the

people   on   the property    were   leaving   and he did not want them to get away. The trial court


correctly noted that the only crime that had been committed at the time Brady began shooting
was   criminal trespass. See RCW 9A. 2. Even if Thomas and Joanna had arrived at the
                                 080.
                                   5


property with the intention to commit a burglary, Brady's testimony that he believed they were

going to leave demonstrates he no longer believed a burglary- as going to be committed at the
                                                            w

time he began shooting. Furthermore, Thomas and Joanna never had any contact with Brady and
                                                      13
No. 42352 9 II
          - -



took no action prior to the shooting that would demonstrate an imminent risk to his life or

intention and ability to do him bodily harm. Accordingly, the trial court properly refused to give

Brady's right to resist the commission of a felony instruction on the basis that there was no

evidence of a dangerous felony that was being or was about to be committed.

PROSECUTORIAL MISCONDUCT


       Brady argues that the prosecutor engaged in misconduct by referencing facts not in

evidence and appealing to the passion and prejudice of the jury during closing argument.

Although the prosecutor improperly referred to Thomas's family during closing argument, Brady

has failed to show prejudice and his prosecutorial misconduct claim fails.

       A defendant claiming prosecutorial misconduct "` ears the burden of establishing the
                                                      b

                 the                            comments and their   prejudicial   effect. "'   State v.
impropriety of         prosecuting attorney's

McKenzie, 157 Wn. d 44, 52, 134 P. d 221 (2006) quoting State v. Brown, 132 Wn. d 529,
                2                3              (                             2

561, 940 P. d 546 (1997),
          2             cent. denied, 523 U. . 1007 (1998)). "
                                           S              References to evidence outside

of the record and bald appeals to passion and prejudice constitute misconduct."State v. Fisher,

165 Wn. d 727, 747, 202 P. d 937 (2009)citing State v. Belgarde, 110 Wn. d 504, 507 08,755
      2                  3              (                              2            -

P. d 174 (1988)).
 2              Comments are deemed prejudicial only where there is a substantial likelihood

that they affected the verdict. McKenzie, 157 Wn. d at 52. " prosecuting attorney's allegedly
                                                2          A

improper remarks must be reviewed in the context of the total argument, the issues in the case,
the evidence addressed in the argument, and the instructions given to the jury."Brown, 132

Wn. d at 561. A prosecutor has wide latitude in closing argument to draw reasonable inferences
  2

from the evidence and to express such inferences to the jury. State v. Stenson, 132 Wn. d 668,
                                                                                      2

727, 940 P. d 1239 (1997).
          2



                                                  14
No. 42352 9 II
          - -



         First, Brady argues that the prosecutor made an argument based " pon facts known to the
                                                                        u

prosecutor and   not   presented   at trial."Br. of   Appellant   at 40.   During closing argument, the

prosecutor argued, You and I may never have met Thomas Stanley McKenzie, but I do know a
                   "

few things about him. We know he had siblings.... know he had siblings, we know he had
                                               We

kids, we know he had a wife. We know he didn't deserve to die in the manner that he did."5

RP at 745 46. Brady objected and his objection was overruled. On appeal, Brady argues that
          -

this was misconduct because there was no evidence presented at trial that Thomas had siblings or

children, but Brady is incorrect. At trial, Detective Bruce Kimsey of the Lewis County Sheriff's

Office testified without objection that Thomas had children. Kimsey also testified that Thomas's

truck was released to Thomas's brother. Accordingly, there were facts in evidence that Thomas

had children and a sibling and the prosecutor did not improperly reference facts not in evidence.

         Brady also argues that the prosecutor committed misconduct by expanding on the

argument about Thomas's children and sibling and arguing, Tom McKenzie's family, friends,
                                                          "

they have to deal with this loss for the rest of their lives."5 RP. at 746. Brady again objected,

but the trial court overruled the objection. The effect of the crime on Thomas's family has no

relevance to Brady's guilt, and it was improper for the prosecutor to refer to Thomas's family

during closing argument. But these challenged references to the impact on Thomas's family

were brief and not extensively detailed. We are convinced that there is no substantial likelihood

that the remarks affected the jury's verdict. McKenzie, 157 Wn. d at 52.
                                                              2

         Although the State's comments referring to Thomas's family were improper, Brady has

failed to meet his burden to show prejudice and Brady's claim fails. See McKenzie, 157 Wn. d
                                                                                         2

at 52.




                                                      15
No. 42352 9 II
          - -



SUFFICIENCY OF THE EVIDENCE


         Finally, Brady argues that the evidence is insufficient to support the jury's verdict finding

Brady guilty     of second   degree manslaughter. Brady does not dispute the sufficiency of the

evidence proving that he shot and killed Thomas. Instead, Brady argues that because the jury

found that he acted in self -
                            defense in regard to the assault on Joanna, he must have acted in self -

defense when he shot Thomas. Brady alleges that "
                                                there was no way to distinguish between the

crime he allegedly committed against Thomas McKenzie and the crime he allegedly committed

against Joanne [sic] McKenzie."Br. of Appellant at 44 45. There is substantial evidence in the
                                                      -

record to support the jury's verdict and Brady's insufficient evidence claim fails.

         Evidence is sufficient if,when viewed in a light most favorable to the jury's verdict, it

permits any rational trier of fact to find the essential elements of the crime beyond a reasonable
doubt. State v. Salinas, 119 Wn. d 192, 201, 829 P. d 1068 (1992).A claim of insufficiency
                               2                  2               "

admits the truth of the State's evidence and all inferences that reasonably can be drawn

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

State   v.   Delmarter,   94 Wn. d
                               2     634, 638, 618 P. d 99 (1980). Our role is not to reweigh the
                                                    2


evidence and substitute our judgment for the jury's. State v. Green, 94 Wn. d 216, 221, 616
                                                                          2

P. d 628 (1980).Instead, because the jurors observed the witnesses testify first hand, we defer
 2

to the jury's resolution of conflicting testimony, evaluation of witness credibility, and decision

regarding the persuasiveness and the appropriate weight to be given the evidence. See State v.

Walton, 64 Wn. App. 410,415 16,824 P. d 533, review denied, 119 Wn. d 1011 (1992).
                            -       2                             2

         Brady was charged with both a homicide (Thomas) and an assault (Joanna). Although

self -
     defense is a defense to both charges, the standards for self -
                                                                  defense differ. To convict Brady

of the assault on Joanna, the State had to prove that the use of force was not lawful. Force is

                                                   16
No. 42352 9 II
          - -



lawful when the defendant " easonably believes that he is about to be injured, and when the force
                          r

is not more than is necessary."2 CP at 242. To convict Brady of manslaughter, the State had to

prove that the homicide was not justifiable. A homicide is not justifiable unless the defendant

reasonably feared death or great personal injury.

       Brady argues that "[ here is no logical way to distinguish between the two sets of
                          t]

charges."   Br. of   Appellant   at 45.    We        disagree. Brady's own testimony established that he

began shooting at the truck where Joanna was standing because he wanted to shoot out the tires

and prevent the people on the property from leaving. However, when a flashlight was shone into

his eyes, Brady began shooting directly at the person holding the flashlight. A reasonable jury

could have found that under the circumstances, attempting to shoot out the tires of the truck was

the use of lawful force, but that shining a flashlight at someone did not create a reasonable fear

of imminent death or great personal injury sufficient to make shooting directly at the person

holding the flashlight a justifiable homicide. Accordingly, sufficient evidence supports the jury's

verdict finding Brady guilty of second degree manslaughter.




7 To the extent that Brady's challenge could be characterized as a challenge to inconsistent
verdicts, State v. Ng, 110 Wn. d 32, 48, 720 P. d 632 (1988), instructive. In Ng, our Supreme
                              2                 2               is
Court held that inconsistent verdicts do not require reversal. Our Supreme Court concluded " hat
                                                                                              t
considerations of jury lenity, and problems inherent in second -guessing the jury's reasoning as to
an acquittal dictate our application of [ unn v. United States, 284 U. .390, 52 S. Ct. 189, 76 L.
                                        D                             S
Ed. 2d 356 (1932),] this case. As the Supreme Court noted, the Dunn rule establishes `the
                      to
unreviewable power of     a   jury   to return   a   verdict of not   guilty for impermissible   reasons. "'   Ng,
110 Wn. d at 48 (internal quotation marks omitted) quoting United States v. Powell, 469 U. .
      2                                            (                                     S
57, 63, 105 S. Ct. 471, 83 L.Ed. 2d 461 (1984)).

                                                          17
No. 42352 9 II
          - -



                                                SAG


JUDICIAL COMMENT ON THE EVIDENCE


       Brady     argues that the trial court   impermissibly   commented   on   the evidence.   The


Washington Constitution explicitly prohibits judicial comments on the evidence. WASHINGTON
CONSTITUTION, art. IV, §16. Here, Brady cites two comments the trial court made to support his

argument that the trial court improperly commented on the evidence: "`
                                                                     there is no evidence that
the actions of the decedent threatened the defendant's life of sic)great
                                                               (           bodily   harm "' and "`
                                                                                                the


defendant here went directly to the successful [use] of deadly force."'
                                                                      SAG at 1. But the trial

court made these comments while explaining its decision refusing Brady's proposed jury

instruction on the right to resist a felony and the jury was not present at the time the trial court

made   the comments.       Accordingly, Brady's argument that the trial court impermissibly

commented on the evidence must fail.

PROSECUTORIAL MISCONDUCT


       Brady also argues that the prosecutor committed misconduct by making false statements

during closing arguments. During rebuttal the State argued,

                Could have locked up his house at 2155, gone over to his property and just
        watched that night. He could have monitored the whole property from his house
        that was right next to it and called the police the second someone pulled up. But
        no, he decided he was going to be there when those people came back because
        nobody's going to be [sic]get away with doing that to him.

5 RP at 740 41. Brady characterizes this argument as a "gross falsehood." SAG at 2. But the
            -

State's argument draws reasonable inferences from the evidence presented at trial and was not

improper.

        A prosecutor has wide latitude in closing argument to draw reasonable inference from the

evidence and to express such inference to the jury. Stenson, 132 Wn. d at 727. "A prosecuting
                                                                   2
                                                  18
No. 42352 9 II
          - -



attorney's allegedly improper remarks must be reviewed in the context of the total argument, the

issues in the case, the evidence addressed in the argument, and the instructions given to the jury."

Brown, 132 Wn. d at 561.
             2

       Here, the State presented testimony that the 2155 property and the 2137 property were

adjacent properties   and the houses   were   400 feet   apart.   The State also introduced photos

showing the area surrounding the properties. Based on this evidence, it is a valid inference that

Brady could have observed the 2155 property from the 2137 property. Furthermore, the jury was

instructed that


              t] lawyer's remarks, statements, and arguments are intended to help
                he
       you understand the evidence and apply the law. It is important, however, for you
       to remember that the lawyers' statements are not evidence. The evidence is the
       testimony and the exhibits. The law is contained in my instructions to you. You
       must disregard any remark, statement, or argument that is not supported by the
        evidence or the law in my instructions.

2 CP at 213. We presume the jury follows the trial court's instructions. State v. Russell, 125

                                  cent. denied, 514 U. . 1129 (1995). Accordingly, we
Wn. d 24, 84, 882 P. d 747 ( 1994),
  2                2                                 S


presume that the jury disregarded any argument not supported by the evidence.

EVIDENCE OF JOANNA'S CONSTRICTED PUPILS


        Brady argues that the trial court also erred by excluding the testimony that Joanna's

pupils were constricted because there was an additional reason to allow the evidence.

Specifically, Brady argues,

        The jurors could have used information acquired over their lifetime, in this
        instance remembering their eighth grade science classes, to impeach her
        credibility as a witness. They would know that she could have not been able to
        see very much at night, since very little light was, reaching the back of her
        eyeballs through those constricted pupils.




                                                  19
No. 42352 9 I1
          - -



SAG at 3. But Brady did not ask the trial court to admit lay testimony that the officer observed

she had constricted pupils for the purposes of allowing the jury to infer that the constricted pupils

interfered with her eyesight. Issues not raised at the trial court are not preserved for review by

this court. ER 103; RAP 2. (Accordingly, Brady has failed to preserve his challenge to the
                        a).
                         5

trial court's ruling excluding testimony regarding Joanna's constricted pupils on grounds other

than forming the basis for the opinion that Joanna was under the influence of drugs on the night

of the shooting.

APPEARANCE OF FAIRNESS


        Next, Brady lists 9 instances of alleged "judicial prejudice." SAG      at 4.   Brady simply

makes   a   list of the trial court's decisions with which he   disagrees. Brady's appearance of

fairness claim is not constitutional in nature and may not be raised for the first time on appeal.

RAP 2. ( v.
    a); Morgensen, 148 Wn. App. 81, 90 91, 197 P. d 715 (2008),
     5 State'                          -        3             review denied,
166 Wn. d 1007 ( 2009).
      2                       Brady did not raise a claim of judicial bias or a violation of the

appearance of fairness at the trial court,therefore he has waived his challenge.

        Furthermore, the party claiming bias or prejudice must support the claim with evidence of

the trial court's actual or potential bias. State v. Gamble, 168 Wn. d 161, 187 88,225 P. d 973
                                                                   2            -       3

2010). Judicial rulings alone almost never constitute a valid showing of bias."In re Pers.
       "

Restraint ofDavis, 152 Wn. d 647, 692, 101 P. d 1 ( 2004) citing Liteky v. United States, 510
                         2                  3              (

U. . 540, 555, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994)).
 S                                                       Therefore, Brady's appearance of

fairness claim, supported solely by the trial court's adverse rulings, must fail.
INEFFECTIVE ASSISTANCE OF COUNSEL


        Finally, Brady argues that he received ineffective assistance of counsel because (1)

defense counsel took a "lackadaisical" approach to preparing for trial, ( )defense counsel
                                       '                                2
                                                 20
No. 42352-
    11-  9



referred to Brady as "Tom"during opening statements, 3)
                                                     ( defense counsel did not adequately

prepare him to testify, and (4)defense counsel did not file a motion to vacate the jury's guilty
verdict on the second degree manslaughter charge. SAG at 6. Brady's first three allegations are

based on matters outside the record presented for our review and defense counsel's performance

was not deficient for failing to file a CrR 7. motion to arrest judgment, thus Brady's ineffective
                                             4

assistance of counsel claim fails.


         We do not review matters outside the record on direct appeal. State v. McFarland, 127

Wn. d 322, 338, 899 P. d 1251 (1995).Brady's arguments that counsel took a "lackadaisical"
  2                  2

approach when preparing for trial and failed to adequately prepare him to testify rest on facts
outside the record and are, therefore, outside the scope of review   on   direct   appeal.   SAG at 6.


Brady also alleges. that defense counsel referred to him as "Tom" during opening statements.

SAG at 6. But opening statements are not transcribed in the record designated for our review.

Therefore, there is not an adequate record to allow us to review Brady's assigned error. RAP

b);
9. ( also In re Det. ofMorgan, 161 Wn. App. 66, 83, 253 P. d 394 (2011) ( " the party
 2 see                                                   3              As

seeking review, the appellant] has the burden to perfect the record." (
                [                                                   citing RAP 9. (
                                                                               b);
                                                                                2 Bulzomi

v.   Dep't ofLabor & Indus., Wn. App. 522, 525, 864 P. d 996 (1994))).
                           72                        2

         Brady also argues that defense counsel was ineffective for failing "to ask the court to

vacate my guilty verdict."SAG at 6. To prevail on an ineffective assistance of counsel claim,

Brady must show both deficient performance and resulting prejudice. Strickland v. Washington,




8
    It appears that Brady is referring to a motion to arrest judgment under CrR 7. ( refer to
                                                                                a)..
                                                                                 4 We
the motion by its proper title.
                                                21
No. 42352 9 II
          - -



466 U. . 668, 687, 104 S. Ct. 2052, 80 L.Ed. 2d 674 (1984).Counsel's performance is deficient
     S

if it fell below   an
                        objective standard, of   reasonableness.   Stenson, 132 Wn. d
                                                                                  2     at   705.   Our


scrutiny of counsel's performance is highly deferential; we strongly presume reasonableness.

McFarland, 127 Wn. d at 335 36. To establish prejudice, a defendant must show a reasonable
                 2          -

probability   that the outcome would have differed absent the deficient      performance.      State v.


Thomas, 109 Wn. d 222, 226, 743 P. d 816 (1987).If an ineffective assistance of counsel claim
              2                  2

fails to support a finding of either deficiency or prejudice, it fails. Strickland, 466 U. .at 697.
                                                                                         S

       A defendant may file a motion to arrest judgment based on "nsufficiency of the proof of
                                                                 i

a material element of the crime."CrR 7. ( State v. Lopez, 107 Wn. App. 270, 276 77,
                                     a)( In
                                      3).
                                      4                                         -

27 P. d 237 (2001), d,147 Wn. d 515, 55 P. d 609 (2002),
    3             aff'      2            3             defense counsel's failure to move

to arrest judgment after the State failed to present any evidence establishing an essential element

of the crime     charged   was   deficient   performance.   But here, the State presented sufficient

evidence to support the jury's guilty verdict on the second degree manslaughter charge.

Furthermore, even if the jury had returned inconsistent verdicts, which it did not, inconsistent

verdicts do not warrant arrest of judgment ( reversal).See State v. Ng, 110 Wn. d 32, 48, 750
                                           or                                 2

P. d 632 ( 1988). Accordingly,
 2                                   defense counsel's performance was not deficient and Brady's

ineffective assistance of counsel claim fails.


        The trial court did not err, Brady was not prejudiced by the prosecutor's improper

remarks, and sufficient evidence supports the jury's verdict. In addition, Brady's SAG claims do




                                                     22
No. 42352 9 II
          - -


not raise any reversible   error.   Accordingly, we affirm Brady's conviction for second degree

manslaughter.

       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 pursuant to RCW 2.6.it is
                                                                                  040,
                                                                                    0

so ordered.




                                                   Q INN-
                                                        BRINTNALL, J.
We concur:




J HANSON, A. .
          J.
           C


              J.
Bykr,




                                                 23
