       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                                <--,
STATE OF WASHINGTON,                       )                                   ,-,            En c
                                           )       No. 76859-0-1                c.             ..-ia,
                     Respondent,           )      (consolidated with 77058-6-1) •Th           t",--
                                           )
              v.                           )       DIVISION ONE                    cri

KEITH EDWIN EAGLE,                         )       UNPUBLISHED OPINION             -.....z.       ., .-,‘

                     Appellant.            )      FILED: November 5, 2018              LP - .--•
                                           )

       SMITH, J. —Keith Eagle appeals his conviction for third degree assault

against a law enforcement officer. Eagle argues that prosecutorial misconduct

prejudiced his right to a fair trial and that there was insufficient evidence to

support his conviction. We disagree and affirm.

                                       FACTS

       On September 26, 2016, Krysta Applewhite called 911 when she heard a

man yelling at a woman and the woman yelling "'someone call 911.'" Clerk's

Papers(CP)at 1. Officers Kyle Campo and Joshua Murdock responded to the

domestic complaint. Officer Campo contacted D.O., who claimed that Eagle hit

her, pulled her hair, took her phone from her when she tried to call 911, and

pushed her to the ground, causing her to cut herself on the gravel. Officer

Campo then spoke to Eagle by phone, and Eagle agreed to meet officers at a

nearby park. Officer Murdock arrived at the park and approached Eagle's
No. 76859-0-1/2


vehicle. After speaking with Eagle briefly, Officer Murdock advised him that he

was under arrest. Eagle did not submit to arrest. Eventually Officer Murdock

had to physically force Eagle to the ground to place him into custody. The

altercation was recorded by a surveillance video.

      The State originally charged Eagle with third degree assault against a law

enforcement officer and fourth degree assault against D.O. When D.O. insisted

that the incident leading to the fourth degree assault charge was a

misunderstanding, the State dropped that charge.

       During the jury trial, both Officer Campo and Officer Murdock testified.

Officer Murdock testified that, although he did not remember Eagle making

contact with him, he remembered Eagle trying to hit him and that he believed the

surveillance video showed that Eagle did hit him. The court also admitted the

surveillance video into evidence. Eagle did not testify. During deliberations, the

jury twice asked to view the surveillance video and viewed the video frame-by-

frame. The jury returned a guilty verdict.

       After the trial, Eagle moved for arrest of judgment and a new trial,

challenging sufficiency of the evidence, the frame-by-frame display of the video,

and the jury's failure to request a frame-by-frame viewing in writing. The trial

court denied the motion and sentenced Eagle to nine months of confinement.

The trial court entered findings of fact and conclusions of law supporting its

denial of the motion for a new trial. Specifically, the court found that the video

and the officers' testimony provided sufficient evidence of third degree assault

and that the frame-by-frame playback did not prejudice Eagle. Eagle appeals.


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No. 76859-0-113


                        PROSECUTORIAL MISCONDUCT

       Eagle argues that the prosecutor committed reversible misconduct when

the prosecutor referenced the 911 call in his opening statement and when the

prosecutor solicited testimony from Officer Campo that the officer took

photographs as part of his investigation. We disagree.

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

establish 'that the prosecutor's conduct was both improper and prejudicial in the

context of the entire record and the circumstances at trial.'" State v. Thomerson

172 Wn.2d 438,442, 258 P.3d 43(2011)(internal quotation marks omitted)

(quoting State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008)). Where the

defendant moves for a mistrial based on alleged prosecutorial misconduct, we

will give deference to the trial court's ruling on the matter. State v. Stenson 132

Wn.2d 668, 719,940 P.2d 1239(1997). "'The trial court is in the best position to

most effectively determine if prosecutorial misconduct prejudiced a defendant's

right to a fair trial.'" Id (internal quotation marks omitted)(quoting State v.

Luvene 127 Wn.2d 690, 701,903 P.2d 960(1995)).

       Here, before trial, Eagle presented a motion in limine requesting that

Applewhite's testimony on the circumstances of the 911 call that she made be

excluded as irrelevant. The trial court granted the motion.

       In his opening statement, the prosecutor explained that Officer Murdock

and Officer Campo responded to a dispatch on the date of the alleged assault.

He described their investigative activities: "They contacted witnesses, spoke to

the reporting person, the person who called 911. They took photographs."


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No. 76859-0-1/4


Report of Proceedings(RP)(Feb. 21, 2017) at 27. Defense counsel objected

and the trial court excused the jury. Defense counsel asked for a mistrial,

arguing that the prosecutor's reference to the 911 call violated the court's ruling

on the defense motion in limine. The trial court denied the motion for a mistrial,

holding that the reference to the 911 call did not describe the substance of that

call and that an instruction to the jury to disregard the remark would cure any

prejudice. The court then instructed the jury as follows:

       Members of the Jury, I'm going to remind you, we talked about this
       a little bit earlier, the only thing you are going to use in this case, to
       determine the case is the instructions from the Court and the
       evidence as we present them [sic]. The lawyers' statements are
       not evidence. You are to disregard any statements or argument by
       the attorneys that are not consistent with the facts you determine
       them to be.

Id. at 32. The 911 call did not come up again during the trial.

       We presume that the jury followed the trial court's instructions and did not

consider the 911 call. State v. Lamar, 180 Wn.2d 576, 586, 327 P.3d 46(2014)

("'Juries are presumed to follow instructions absent evidence to the contrary.")

(quoting State v. Dye 178 Wn.2d 541, 556, 309 P.3d 1192(2013)). As such, this

statement by the prosecutor was not prejudicial and does not require reversal.

The trial court did not abuse its discretion in denying Eagle's motion for a mistrial.

       Eagle also argues that the prosecutor committed misconduct when he

solicited testimony from Officer Campo that the officer took photographs. Eagle

claims that the testimony evidenced his prior trouble with the law and suggested

that he had the propensity to commit the crime charged. We disagree.




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No. 76859-0-1/5


       During Officer Campo's testimony, the prosecutor asked Officer Campo

questions about his investigation. Specifically, he asked,"[W]hat things did you

do?" RP (Feb. 21, 2017)at 39. Officer Campo responded,"In the stage of my

Investigation Itook photographs." Id. Defense counsel again objected and the

trial court excused the jury. Defense counsel argued that any discussion about

the photographs taken in the underlying investigation was improper because that

Incident was not relevant to the charged offense. The trial court overruled the

objection but allowed a continuing defense objection to any additional details of

the underlying Investigation.

      The prosecutor's question and Officer Campo's response were neither

improper nor prejudicial. The State was required to prove that Officer Murdock

was assaulted while he was performing his official duties, and evidence that

there was an investigation satisfied that element. Officer Campo did not give any

details about the content of the photographs taken or the underlying

Investigation. The prosecutor's question was not improper, and Officer Campo's

response did not prejudice Eagle's right to a fair trial. Reversal is not necessary.

              FAILURE TO EXCLUDE INADMISSIBLE EVIDENCE

       Eagle argues that the trial court erred in admitting evidence of the

underlying investigation because the potential for prejudice outweighed its

probative value. We disagree.

       Evidence is relevant when it has "any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable

or less probable." ER 401. Relevant evidence is admissible unless a rule of law


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No. 76859-0-1/6


prohibits its admission. ER 402. ER 403 prohibits the trial court from admitting

relevant evidence "if its probative value is substantially outweighed by the danger

of unfair prejudice." Unfair prejudice is prejudice that is more likely to arouse an

emotional response than a rational decision by the jury and suggests a decision

on an improper basis. State v. Cronin 142 Wn.2d 568, 584, 14 P.3d 752(2000)

"[Nearly all evidence will prejudice one side or the other," and leividence is not

rendered inadmissible under ER 403 just because it may be prejudicial." Carson

v. Fine, 123 Wn.2d 206, 224,867 P.2d 610(1994).

       A trial court sits in the best position to determine the prejudicial effect of

evidence. State v. Powell, 166 Wn.2d 73,81, 206 P.3d 321 (2009). We review a

trial court's decision to admit or exclude evidence for abuse of discretion. State

v. Gunderson 181 Wn.2d 916, 922, 337 P.3d 1090(2014). A trial court abuses

its discretion when it makes a manifestly unreasonable decision or bases its

decision on untenable grounds or reasons. Id. at 922.

       Here, to convict Eagle of third degree assault, the State had to prove that

Officer Murdock "was performing his or her official duties" at the time of the

assault. CP at 37. Eagle argues that the prosecutors opening statements that

the police responded to a 911 call, contacted witnesses, took photographs, and

spoke to the reporting person, as well as Officer Campo's testimony that he took

photographs, were improper admissions of evidence. As discussed above, the

trial court properly instructed the jury to disregard the prosecutors remarks that

were not consistent with the evidence. RP (Feb. 21, 2017)at 32. Additionally,

Officer Campo's testimony was probative to the extent that it proved he and


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No. 76859-0-1/7


Officer Murdock were performing their official duties at the time of the assault.

Eagle does not show that the danger of unfair prejudice outweighed the

evidence's probative value, and nothing in these statements refers to the nature

or circumstances of the underlying investigation. For these reasons, the trial

court did not abuse its discretion in admitting Officer Campo's testimony.

                       SUFFICIENCY OF THE EVIDENCE

       Eagle argues that the State presented insufficient evidence that he

intended to assault Officer Murdock when he swung his arm at him. We

disagree.

       Due process requires the State to prove beyond a reasonable doubt every

element of the crime charged. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068,

25 L. Ed. 2d 368(1970). Evidence is sufficient to support a conviction if, viewed

in the light most favorable to the State, any rational trier of fact could have found

the elements of the relevant crime proven beyond a reasonable doubt. State v.

Green 94 Wn.2d 216, 221-22,616 P.2d 628 (1980). In challenging sufficiency of

the evidence, the defendant "admits the truth of the State's evidence and all

inferences that reasonably can be drawn therefrom." State v. Salinas, 119

Wn.2d 192, 201,829 P.2d 1068(1992). The jury is the sole and exclusive judge

of the evidence. State v. Bencivenqa 137 Wn.2d 703, 709,974 P.2d 832

(1999). We do not reweigh the evidence or substitute our judgment for that of

the jury. Green,94 Wn.2d at 221. "Instead, we defer to the jury's resolution of

conflicting testimony, evaluation of witness credibility, and decisions regarding




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No. 76859-0-1/8


the persuasiveness of evidence." State v. Johnson 159 Wn. App.766,774,247

P.3d 11 (2011).

       To convict Eagle of third degree assault, the State had to prove beyond a

reasonable doubt that Eagle intended to(1)touch or strike Officer Murdock,(2)

Inflict bodily injury on Officer Murdock but failed to accomplish that purpose, or

(3)create apprehension and fear of bodily injury in Officer Murdock.

       Here, taking the evidence in the light most favorable to the State, there is

sufficient evidence of Eagle's intent to commit assault. Officer Murdock testified

that Eagle was resisting arrest and he decided that he needed to "go hands on"

with Eagle to physically take control of him. RP at 62. Eagle then resisted by

"Mulling away and then making a fist with one of his hands which he raised

above his head, which I believe was an attempt to strike me." LI, Officer

Murdock stated that he "[a]bsolutely" believed he was going to be struck by

Eagle. Id. While Officer Murdock did not remember actually getting hit, he

testified that "after viewing the video it does appear he did make contact with

me." Id. at 64. Officer Murdock also stated that within a couple of minutes after

the altercation, he noticed that he had a headache. Id. This was sufficient

evidence for a rational trier of fact to find that Eagle intentionally assaulted Officer

Murdock.

       Eagle argues that the jury did not decide that he assaulted Officer

Murdock after the close of evidence, but rather came to their conclusion after

they were able to view the video frame-by-frame during deliberations. But, this

court should not consider the point at which a jury makes up their minds about


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No. 76859-0-1/9


guilt or innocence because that is evidence of jurors' mental processes that

inheres in the verdict. State v. Hatley 41 Wn. App. 789, 793-94, 706 P.2d 1083

(1985). Eagle argues that the frame-by-frame playback of the video biased the

Jury's perception of his intent by making his arm motion seem more deliberate

than it appeared at regular speed. But, even assuming this were true, the video

Is not the only evidence of Eagle's intent. Officer Murdock's testimony alone

provides sufficient evidence of Eagle's intent. Reversal is not warranted.

       We affirm.




WE CONCUR:
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