                                                                                                    FILED
                                                                                        COU:E T OF APPE L
                                                                                             DIVISION 11


    IN THE COURT OF APPEALS OF THE
                                                                              STAA1




                                                                                          tbiLASSIVTR9ON
                                                                                       STATE OF WASHINGTON
                                                        DIVISION II
                                                                                             D .:, tiTY
STATE OF WASHINGTON,                                                                    No. 443 5 -2 -II


                                          Respondent,


          v.




THOMAS JOSEPH ROMAN,                                                            UNPUBLISHED OPINION


                                          Appellant.


          HUNT, P. J. —         Thomas Joseph Roman appeals his jury trial conviction for second degree

assault   by    strangulation.         He argues that ( 1) the trial court abused its discretion in refusing to

instruct the    jury   on   the lesser degree          offense of   fourth degree      assault, (   2) the State violated his


constitutional right to remain silent because Officer Derek Makein impermissibly testified about

Roman'    s    exercise    of   his    right   to   remain   silent, and (   3) defense counsel' s failure to object to


Makein' s testimony constituted ineffective assistance of counsel. We affirm.

                                                               FACTS


                                                             I. ASSAULT


          Roman       and    Angela Roman'            are    husband   and   wife.     On September 30, 2012, Angela


asked Roman for the car keys; when he refused, she reached into his pocket for the keys. Roman

grabbed her arm, bit her, and punched her in her chest, causing her to fall; at this point, Roman

had Angela in " kind            of a   headlock."       2 Verbatim Report        of   Proceedings ( VRP)      at   213.   When


Angela     stood     up,   she screamed        for   help. Officer Derek Makein, who was patrolling in the area,



  To avoid confusion, we refer to Thomas Roman as " Roman" and Angela Roman as " Angela."
We intend       no   disrespect.
No. 44325 -2 -II



heard her     screams     of "   help   me,"     drove toward the sound of screams, and found Angela and


Roman,    who was        holding   a child.      1 VRP   at   58.       Angela told Makein that Roman had bitten and


held   onto   her left   arm, punched      her   several    times,      and " squeeze[ ed]"         her neck, causing her to see

stars, and    that   she also    had injuries to her        chest.       1 VRP   at   85.    Makein noticed Angela putting

her hand near her chest, appearing in distress; he also saw a fresh bite mark on her arm. Makein

arrested Roman.


                                                         II. PROCEDURE.


         The State charged Roman with second -degree assault by strangulation under RCW

9A.36. 021( 1)( g),      with   a special     domestic      violence       allegation.       At Roman' s jury trial, hospital

emergency room physician' s assistant Gary Bilodeau testified that on September 30, 2012, he

had examined Angela and prepared her medical records. Angela said that Roman had bitten her,

hit her, thrown her to the          ground, and choked          her      so   that   she   had "[   seen]   stars."   1 VRP at 40.


Angela' s     physical    examination revealed petechia ( broken                      blood    vessels)     in her cheeks, some


redness and swelling on her throat, a bite mark on her left wrist, and bruising in several areas.
                                                                                                                        CAT2

Bilodeau      examined     Angela'      s neck, noticed redness on             the front     of   it,   and ordered a          scan




because Angela           complained      of    difficulty     swallowing.            The CAT scan results revealed that


Angela had a thyroid cartilage fracture and significant soft tissue edema in her neck, injuries

consistent with       strangulation. Bilodeau also testified that strangulation can cause petechia to the


face.


         In    addition    to    the    facts previously        set       forth, Officer Makein testified that              as he


approached the couple, he noted a strong odor of alcohol emanating from Roman. When Makein

2
  A CAT scan refers to a computed tomography scan that uses x -
                                                              ray technology to take multiple
cross -sectional views inside the body.


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No. 44325 -2 -II



 first   made contact"      with   Roman, Roman          asked    Makein, "[       A]re you profiling me because I' m a

guy ?" and Makein inferred from Roman'                  s conduct       that he was     not    going to     cooperate.     1 VRP at


73, 74.    Makein advised Roman that he was under arrest for domestic violence assault and read

              Miranda3
Roman his                    rights.    Roman "     clammed           up,"    asked for an attorney, and said he did not

want     to talk to Makein.         1 VRP    at   73.    Defense counsel did not object to Officer Makein' s


testimony about Roman' s exercise of his right to remain silent.

          After placing Roman in the police car, Makein went back to talk to Angela to continue

his investigation     and    to    make   sure    Angela      received medical           treatment.         Angela repeated her


earlier gesture of touching her upper chest and collarbone area, which Makein took as signs of

additional   injuries. Makein also noticed that Angela began coughing more as the conversation

progressed and said, "       My    throat hurts.       I' m   having difficulty breathing."               1 VRP     at   84.    Angela


also told Makein that Roman had come up behind her with his arm around her neck and

squeezed    her   neck,   causing her to "   see ...     stars"   and        to have   problems      breathing.    1 VRP at 85.


          In addition to the facts previously set forth, Angela testified that when she looked at her

bitten hand,      she saw   really   deep   teeth   marks      in it    and noticed      it   was red and swollen.             She also


realized she could not        turn her    neck and      that it hurt to        swallow or       to   open   her   mouth.       And she


had told Makein there         was      something wrong          with     her    neck and      throat.   She did not, however,


remember telling Makein that she had been choked or strangled. But Angela further testified that

the pain in her throat lasted five weeks and it was painful to yawn, to stretch, or turn her neck.




3 Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).



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No. 44325 -2 -II


                                                                                                      4
           Roman testified that ( 1)         he had been     drinking        and was "       impaired " at the time of the


incident; ( 2)     when     Angela tried to    grab   the car keys        from him, he " gave her a stiff arm in the


chest. She was approaching [ him] as [ he] put [ his] arm out, so [ he] got her pretty good one in the
                        5; (
chest with a stiff arm "           3) as Angela continued trying to grab the keys, he " put [ his] mouth on
                                                                   6; (
her   arm"      and    bit her, but " didn' t break the     skin, "         4) Angela then " knocked [ him] off [his]

           7
stance,"        he started to fall, so he grabbed onto Angela; and ( 5) he had been holding onto their

child the whole time. In response to questions about choking Angela, Roman replied,

           When [ Angela] came at me I wasn' t looking at her, so I put my arm up like this, I
           had her      shoulder, and   I   came   down   and   I   almost     fell. I guess you could consider
           it   at one point   kind   of a   headlock, but I        wasn'   t —you know I        was —I   was told I
           had choked her out, and I thought it was like a big time wrestler . sing two hands
                                                                             u
           to choke someone.


2 VRP      at   213.    When asked if he had ever had his hands around Angela' s neck, Roman replied,

 No, I never choked her, punched her, kicked her or kneed her. I didn' t do any of those things. I

was an ass,       but I didn' t do those things."     2 VRP at 221.


           Defense       counsel   requested   a   jury   instruction     on   fourth degree      assault.   The trial court


expressed concern about giving this instruction because Roman was charged with second degree

assault    by    strangulation, not   fourth degree       assault.    2 VRP      at   239.    In denying defense counsel' s

request, the trial court noted:




42 VRP at169.

52 VRP at180.

62VRPat183.

72 VRP at184.



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No. 44325 -2 -II



           But if I give a lesser included of Assault 4, it seems to me that I' m inviting the
           jury as a compromised verdict to say I' m not convinced beyond a reasonable
           doubt that the State has proven that he actually strangled her, but there' s no
           question that he actually assaulted her, because he punched her, assuming you
           believe her, he pushed her down and he did get her in a headlock, and that' s the
           quandary that I have there, so you are in essence by asking for a lesser included.
           You are inviting the jury to compromise a verdict, where we have this specific
           charge.




2 VRP      at   242.     The jury found Roman guilty of second degree assault by strangulation and

returned a special verdict of aggravated domestic violence. The trial court sentenced Roman to 6

months in prison with credit for 70 days served. Roman appeals.


                                                         ANALYSIS


                                       I. LESSER DEGREE OFFENSE INSTRUCTION


           Roman argues that the trial court abused its discretion and prejudiced his case when it

refused     to instruct the      jury    on   the lesser   offense   of   fourth degree   assault.   Holding that»the

evidence did not support that Roman committed only fourth degree assault, we disagree.

           We review a trial court' s refusal to give a lesser included offense instruction for abuse of

discretion. State        v.   Walker, 136 Wn.2d 767, 771 - 72, 966 P. 2d 883 ( 1998).            A trial court abuses


its discretion when its decision is manifestly unreasonable or based on untenable grounds or

reasons.        State   v. ex rel.   Carroll   v.   Junker, 79 Wn.2d 12, 26, 482 P. 2d 775 ( 1971).         Both the


defendant and the State have a statutory right to have supportable inferior degree offenses

presented       to the   jury.   State   v.   Stevens, 158 Wn.2d 304, 310, 143 P. 3d 817 ( 2006); see RCW


10. 61. 006, 10. 61. 003.        A defendant is entitled to a jury instruction on an inferior degree offense

if "( 1)    the statutes for both the charged offense and the proposed inferior degree offense

proscribe       but   one offense; (   2) the information charges an offense that is divided into degrees, and


the proposed offense is an inferior degree of the charged offense; and ( 3) there is evidence that



                                                               5
No. 44325 -2 -II



the defendant committed only the                inferior   offense.'       State v. Fernandez- Medina, 141 Wn.2d


448, 454, 6 P. 3d 1150 ( 2000) ( internal           quotation marks omitted) (           quoting State v. Peterson, 133

Wn.2d 885, 891, 948 P. 2d 381 ( 1997)).


          Here, the parties dispute only the third prong of this test, which is a factual question

asking whether the evidence raises an inference and affirmatively establishes the defendant' s

theory that he committed only the inferior degree offense, to the exclusion of the charged

offense.    Fernandez- Medina, 141 Wn.2d              at   455.       To convict Roman of second degree assault by

strangulation8, the State had to prove beyond a reasonable doubt that Roman assaulted Angela by

strangulation, under        circumstances not amounting to                first degree   assault.    RCW 9A.36. 021( g).

    Strangulation" means to compress a person' s neck, thereby obstructing the person' s blood flow

or ability to breathe, or doing so with the intent to obstruct the person' s blood flow or ability to

breathe.         RCW 9A.04. 110( 26).      In contrast, fourth degree assault, a gross misdemeanor, is an

assault not       amounting to first degree,        second    degree, third degree,         or custodial assault.       RCW


9A.36. 041.


          Here, the overwhelming evidence of Roman' s strangulation of Angela and her resulting

injuries does not support Roman' s theory that he committed only the inferior degree offense of

fourth degree         assault.    Fernandez- Medina, 141 Wn.2d               at   455.   On the contrary, the evidence

supports     the    jury' s finding   Roman guilty     of second         degree   assault   by   strangulation: (   1) At the


crime scene, Angela had told Makein that Roman had " com[ e] behind her with his arm around



8
    RCW 9A.36. 021 provides, in pertinent part:
            1)    A   person     is guilty of   assault    in the       second    degree    if he   or   she,   under


           circumstances not amounting to assault in the first degree:.. .
                   g) Assaults another by strangulation or suffocation.
    Emphasis added.)



                                                                  6
No. 44325 -2 -II


her   neck and squeeze[ ed]          her   neck,"   1 VRP at 85, and Makein had noticed signs of strangulation,


including her incessant coughing and her complaints about difficulty breathing and throat pains;

 2) at the hospital soon thereafter, Angela had also told hospital physician' s assistant, Bilodeau,


that Roman had            choked    her; ( 3) Bilodeau' s examination of Angela had revealed redness on the


front   of   her   neck and petechia on        her   cheeks, which      had   likely   been   caused   by   strangulation; ( 4)




Bilodeau had ordered a CAT scan, which showed that Angela had a thyroid cartilage fracture and


substantial        soft   tissue   edema   in her   neck,   injuries   consistent with strangulation; (        5) Angela had


testified about the pain in her throat that had lasted five weeks after the incident and that it had


been painful to yawn, to stretch, or to turn her neck; and ( 6) Roman had admitted at trial that " at


one point"     he had Angela in " kind          of a   headlock." 2 VRP at 213.


         The evidence did not support that Roman committed only simple fourth degree assault,

which could not have encompassed the severe injuries that Angela suffered here from Roman' s


squeezing her neck or headlock, both synonymous with strangulation under the facts of this case.

See RCW 9A.36. 041.                 We hold, therefore, that the trial court did not abuse its discretion in


concluding that the evidence did not support an inferior degree instruction and in refusing

Roman' s requested instruction.


                                                II. COMMENT ON SILENCE


         Roman next argues that Makein' s testimony about Roman' s silence at the scene and

about Roman' s pre -arrest and post- arrest statements violated his constitutional right to remain


silent. The State counters that ( 1) Makein' s testimony was not a comment on Roman' s exercise

of his right to silence; and ( 2) even if it were such a comment, it was harmless error. Assuming,

without deciding, that Makein' s testimony was an impermissible comment on Roman' s exercise



                                                                  7
No. 44325 -2 -II



of his constitutional right to remain silent, we hold that any such error was harmless beyond a

reasonable doubt.


          The State bears the burden of showing that a constitutional error was harmless beyond a

reasonable    doubt. State         v.   Easter, 130 Wn.2d 228, 242, 922 P. 2d 1285 ( 1996);                 State v. Pottorff,

138 Wn.     App      343, 347, 156 P. 3d 955 ( 2007).                 We will find constitutional error harmless if we


are convinced beyond a reasonable doubt that any reasonable jury would have reached the same

result absent the error, and where the untainted evidence is so overwhelming it necessarily leads

to a   finding   of guilt.    Easter, 130 Wn.2d             at   242. Such is the case here.


          Roman challenges the following testimony about his pre -arrest and post -arrest silence

and statements:



           STATE:] Now,            you    didn' t have him do any of those [ sobriety tests], did you?
           OFFICER MAKEIN;] No                    sir. Once he was —I advised him he' s under arrest for

          domestic     violence assault,         I   read   him [ Miranda].    He clammed up, said I want my
          attorney.     I don' t want to talk to you, so for me once he says anything like that
          after I read [ Miranda] I don' t ask him anything else.
           STATE:] Describe for me when you first made contact with him how is his
          demeanor?
           OFFICER MAKEIN:]                   I would have to say defiant, probably the best word
          because     after   he   made    the    statement, are you        profiling   me   because I' m   a   guy? I
          tried to    explain    to him,    no.      I' m just making sure everybody is safe, making sure
          I' m safe, but for him once he made that statement it was clear that he wasn' t
          going to     cooperate.         He wasn' t going to really do anything to assist with the
          investigation       or provide    information that we need. His demeanor was basically I

          was pissing him off, because I determined it was a crime that occurred against his
          wife and put him in custody.

           STATE:] After the defendant is taken into custody, what did you do?
           OFFICER MAKEIN:] Of course pat him down for weapons, put him in the
          backseat     of   my   car, read   him [ Miranda]. He doesn' t want to talk, so I left him in
          the car, continued my investigation to make sure that the victim gets medical
          treatment, have her evaluated and that' s what I did.


1 VRP at 73 -75.




                                                                      8
No. 44325 -2 -II



         Absent Makein' s comments, the jury would still have reached the same verdict, finding

Roman         guilty   of    second     degree    assault    by    strangulation.       First,   despite denying having

 choke[      d]"   Angela, Roman admitted to the jury at trial that he had her in " kind of a headlock"

 at one point."        2 VRP    at   213.    Second, the undisputed evidence about the nature and severity of

Angela' s injuries from Roman' s headlock included Bilodeau' s testimony about redness on the

front of her neck and throat, petechia on Angela' s cheeks that was likely caused by strangulation,

the CAT scan results showing Angela' s thyroid cartilage fracture and substantial soft tissue

edema        in her    neck ( symptoms         also   consistent        with   strangulation),   and Angela' s report to


Bilodeau that Roman " choked" her. 1 VRP                     at   39.   Also undisputed was Makein' s testimony that

Angela had coughed incessantly when he spoke with her, that she had difficulty breathing, and

that   she   told   him Roman had "         squeeze[ ed]"    her   neck.   1 VRP at 85. Angela testified that she had


pain in her throat that had lasted five weeks after the incident and that it was painful to yawn, to

stretch, or to turn her neck.


             The overwhelming uncontroverted evidence about Angela' s cheek petechia, neck and

throat   injuries,     and   breathing      difficulties    was consistent with strangulation.         Angela attributed

                                                            9
these injuries to Roman' s            having " squeez[ ed] " her neck; and even Roman himself admitted to

having had her in " kind         of a   headlock."     2 VRP at 213. Based on this evidence, a reasonable jury

would have convicted Roman of second degree assault by strangulation even absent Makein' s

testimony          about   Roman'    s silence.   Accordingly, we hold that any error was harmless beyond a

reasonable doubt and, thus, does not warrant reversal of Roman' s conviction.




91     VRP     at85.
No. 44325 -2 -II



                                  III. EFFECTIVE ASSISTANCE OF COUNSEL


             Roman last argues. that his trial counsel rendered ineffective assistance in failing to object

to Makein' s comment on his ( Roman' s) right to remain silent. This argument also fails.

             To prevail on an ineffective assistance of counsel claim, a defendant must show both

deficient performance and resulting prejudice; failure to show either prong defeats such claim.

State   v.   McNeal, 145 Wn.2d 352, 362, 37 P. 3d 280 ( 2002).        To establish prejudice, a defendant


must show that but for counsel' s unprofessional errors, the result of the proceeding would have

been different.       Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674

 1984).       For the same reasons that we hold Makein' s comments about Roman' s silence to have

been harmless error, we also hold that Roman does not show that his counsel' s failure to object

to this testimony prejudiced him. Thus, Roman' s ineffective assistance challenge fails on this

second prong alone, and we need not address the deficient performance prong of the test.

             We affirm.


             A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




We concur:




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