                                                                        FILED
                                                                     MARCH 21, 2017
                                                                In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

STATE OF WASHINGTON,                         )
                                             )         No. 33909-2-111
                    Respondent,              )
                                             )
      V.                                     )
                                             )
NICHOLAS A. LIMPERT,                         )         UNPUBLISHED OPINION
                                             )
                    Appellant,               )
                                             )
DESARAE M. DAWSON,                           )
                                             )
                    Defendant.               )

      KORSMO,    J. - Nicholas Limpert appeals his conviction for attempted second

degree assault, arguing that the court should not have admitted statements made by his

codefendant at trial, and that the prosecutor committed misconduct in closing argument.

We affirm.

                                         FACTS

      Mr. Limpert and Deserae Dawson jointly were charged with conspiracy to commit

robbery and robbery in the first degree. Mr. Limpert was also charged with attempted

second degree assault. The charges arose out of a failed narcotics transaction at a

Spokane hotel.
No. 33909-2-III
State v. Limpert


       There is a reasonably large cast list for this production. In simplified form, victim

Makelle Hamilton, her brother, and her boyfriend had excess narcotics they wanted to

sell. They contacted an acquaintance, Brenden McCullough, and let him know they had

pills for sale. McCullough in tum contacted Mr. Limpert and Ms. Dawson, and the three

of them devised a plan to "short" Ms. Hamilton by disguising the size of the payment and

leaving with the full amount of drugs for a partial payment. 1

       McCullough purchased the drugs by giving the undervalued amount of currency

and also leaving, as collateral, the telephone belonging to another acquaintance, Michelle

Pearson. McCullough, however, had no intention of ransoming the telephone with the

remaining balance owed on the transaction. He departed with the drugs.

      Ms. Pearson learned about the misuse of her telephone and went to Ms. Hamilton

to retrieve it. Hamilton refused to return the phone and ejected Pearson from the hotel

room. Pearson alerted Limpert and Dawson that she needed help to recover her

telephone. Meanwhile, Ms. Hamilton's boyfriend had left to find McCullough, and then

her brother left to find both men. Limpert and Dawson arrived at the hotel room to find

Ms. Hamilton alone.




      1
         The plan used the time-honored "big roll" method of providing a roll of money
with the largest denomination on top and a large number of $1 bills underneath in order
to leave the impression that the full amount of payment was present.

                                             2
No. 33909-2-111
State v. Limpert


       The duo demanded the return of Pearson's phone, with Limpert displaying a knife.

Hamilton questioned the need to use a knife against a woman, so Limpert put it away and

began choking Hamilton. 2 The victim's brother returned to the room and broke up the

fight. After the defendants departed, Hamilton's brother reported the incident to a

detective. The police investigated by contacting Ms. Hamilton and, later, Mr. Limpert

and Ms. Dawson. The pills were recovered from Dawson's vehicle. She told police that

she had not seen Limpert display a knife in the hotel room, but she had heard Hamilton

say, "he just pulled a knife." The statement was later qualified for admission at the CrR

3.5 hearing. Neither of the attorneys for the two defendants objected to use of the

statement.

       At trial, Ms. Hamilton described the confrontation with Limpert and told jurors

that he had pulled a knife on her. After putting the knife away, he choked her. The

prosecutor subsequently called the detective to testify and elicited, without objection, the

statement that Dawson reported Hamilton saying that "he just pulled a knife." When

Limpert's counsel cross-examined the officer about where the two defendants had said

they went after leaving the hotel room, the prosecutor objected, stating that "by not

separating the defendants we're getting into the possibility of mixing some Bruton




       2Although Limpert continues to deny choking her, the jury verdict establishes
otherwise.

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No. 33909-2-III
State v. Limpert


issues." Report of Proceedings (RP) at 344. Limpert's counsel then clarified his question

by asking where Ms. Dawson had said the two were going.

       The State rested at the conclusion of the detective's testimony. Mr. Limpert's

counsel then called two witnesses who had discussed the incident with Ms. Hamilton.

Both testified that Hamilton told them there was no physical altercation and there was no

knife. Limpert's counsel then called Pearson to the stand. She testified that she had been

involved in an altercation with Hamilton during her unsuccessful initial attempt to

recover the telephone.

      In closing, the prosecutor told jurors that taking a property by force or intimidation

constituted robbery. "A great example is O.J. Simpson. He's in prison in Nevada right

now for going into a motel room-." Defense counsel objected, stating "that's another

state's law." The court overruled the objection and the prosecutor concluded that

Simpson "thought he was going to get personal property of his own when he went into

that motel room." RP at 420-4 21. Limpert' s counsel attacked Hamilton's credibility and

stressed her statements to the two defense witnesses that there was no altercation and no

knife. He stressed that any assault Hamilton reported likely was the encounter with

Pearson, not with Limpert and Dawson.




                                            4
No. 33909-2-III
State v. Limpert


       The jury acquitted Limpert of the robbery and conspiracy to commit robbery

counts, but convicted him of attempted second degree assault. 3 After sentencing, Mr.

Limpert timely appealed to this court.

                                         ANALYSIS

       This appeal raises three issues. 4 First, we consider Mr. Limpert's contention that

his confrontation clause rights were violated by Hamilton's "he pulled a knife" statement.

Second, we consider his claim that the prosecutor committed misconduct by referencing

the O.J. Simpson robbery case. Finally, we summarily address the contention that the

trial court erred by imposing mandatory court costs totaling $800.

       Confrontation Clause

       Mr. Limpert argues that his right to confront Ms. Dawson was violated when the

detective elicited Dawson's statement reciting Hamilton's statement about Limpert

pulling a knife. Because of the failure to raise this claim at trial, he has not established




       3
           Ms. Dawson likewise was acquitted on the robbery and conspiracy charges.
       4
          Mr. Limpert also filed a statement of additional grounds raising two contentions.
First, he argues that the acquittal on the robbery count was inconsistent with the
attempted assault conviction because the prosecutor had to prove an intent to commit
robbery in both charges. However, the failure to prove robbery does not necessarily
mean that there was no intent to commit robbery. The jury may have been dissatisfied
with some other element of the charge. Second, he contends that it was improper to run
the assault sentence consecutive to an identity theft conviction arising from an incident
after the assault incident. However, the court had absolute discretion to run the two          I
                                                                                               l
sentences concurrently or consecutively as it saw fit. RCW 9.94A.589(3).

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No. 33909-2-III
State v. Limpert


that there was manifest constitutional error justifying review of this issue, which also was

at worst harmless error.

       The confrontation clause of the Sixth Amendment to the United States

Constitution guarantees an accused the right to confront the witnesses against him. U.S.

CONST. amend. VI; Crawford v. Washington, 541 U.S. 36, 42, 51, 124 S. Ct. 1354, 158

L. Ed. 2d 177 (2004). This right, which applies to the states via the Fourteenth

Amendment's due process clause, necessarily speaks to a defendant's right to cross-

examine adverse witnesses. Pointer v. Texas, 380 U.S. 400, 404-405, 85 S. Ct. 1065, 13

L. Ed. 2d 923 ( 1965). This protection has special significance in the context of co-

defendants when one of them has made statements to the police that implicate the other

defendant. Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476

(1968). There the court ruled that the defendant Bruton's confrontation rights were

violated when the codefendant's statement, implicating Bruton in a robbery, was

admitted into evidence at their joint trial even though it was accompanied by a limiting

instruction that told the jury only to consider the statement against the confessing

defendant. Id. at 124-126.

      Modem confrontation clause analysis is driven by Crawford. There the court

concluded that the right of confrontation extended only to "witnesses" who "bear

testimony" against the accused. 541 U.S. at 51. This "testimonial" hearsay rule reflected

"an especially acute concern with a specific type of out-of-court statement." Id. "An

                                             6
No. 33909-2-III
State v. Limpert


accuser who makes a formal statement to government officers bears testimony in a sense

that a person who makes a casual remark to an acquaintance does not." Id.

       RAP 2.5(a)(3) provides that an issue of "manifest error affecting a constitutional

right" may be raised for the first time on appeal. While the Sixth Amendment is clearly a

constitutional right, the question of whether the confrontation clause itself presents an

issue of "manifest error" typically is not one that initially can be decided on appeal. The

reason for that is that the confrontation right must be asserted at trial lest it be waived.

State v. O'Cain, 169 Wn. App. 228, 247-248, 279 P.3d 926 (2012); State v. Schroeder,

164 Wn. App. 164, 168, 262 P.3d 1237 (2011). 5 This rule was reasserted, post-Crawford,

in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314

(2009). There the Court stressed that the States were free to require that confrontation

rights be asserted in order to be preserved:

       The defendant always has the burden of raising his Confrontation Clause
       objection; notice-and-demand statutes simply govern the time within which
       he must do so. States are free to adopt procedural rules governing
       objections .... It is common to require a defendant to exercise his rights
       under the Compulsory Process Clause in advance of trial, announcing his
       intent to present certain witnesses. . . . There is no conceivable reason why
       he cannot similarly be compelled to exercise his Confrontation Clause
       rights before trial.

Id. at 327 (citations omitted).


       5
         This rule has long been followed by both the United States and Washington
Supreme Courts. See, e.g., State v. Nelson, 103 Wn.2d 760, 763, 697 P.2d 579 (1985)
(citing cases in context of sentence revocation proceeding).

                                               7
No. 33909-2-111
State v. Limpert


       By not objecting below, Mr. Limpert waived the confrontation claim on appeal.

Accordingly, there is no manifest error that he can assert in this proceeding. The facts of

this case also show why the waiver doctrine is important in this context. First, the "pulled

a knife" statement is not even testimonial hearsay under Crawford that would violate the

confrontation clause. The statement was made by Ms. Hamilton to the two defendants.

This was not "testimony" being provided to the government for the purpose of trial. It was

a remark between acquaintances. 6 Second, both the original declarant (Ms. Hamilton) and

the ultimate declarant (the detective), testified at trial, so there was no confrontation clause

violation as to either of them. The only person who was not available to testify was Ms.

Dawson. Yet, Mr. Limpert's counsel repeatedly and successfully questioned the detective

to get the substance of Dawson's interview with the detective before the jury. 7 It appeared

to be the joint strategy of both defendants to downplay Hamilton's credibility by

impeaching her "knife" testimony with the statements she subsequently made to the two

defense witnesses denying that a knife was used. To that end, Dawson's statement that

Hamilton claimed a knife was present was useful testimony for the defense.


       6
        See State v. Wilcoxon, 185 Wn.2d 324, 373 P.3d 224, cert. denied 137 S. Ct. 580
(2016) (statement by one defendant to other acquaintance not testimonial hearsay despite
Bruton doctrine).
       7
         Interestingly, when the prosecutor warned of possible Bruton problems with the
phrasing of a defense question, Limpert's counsel immediately rephrased his questions in
a manner that expressly brought the confrontation problem to the fore. The decision was
clearly tactical.

                                              8
No. 33909-2-111
State v. Limpert


        These facts demonstrate why the alleged confrontation clause violation was not

manifest in this case. The statement itself was not testimonial and could only be turned

into an arguable confrontation clause issue by use of an unavailable middle person in the

hearsay chain. But, that evidence was part of the defense theory to paint Hamilton as an

unreliable witness. Having made use of Dawson's evidence, Mr. Limpert should not now

be allowed to claim constitutional error.

        Regardless, any error in admitting Ms. Hamilton's statement also was harmless.

"It is well established that constitutional errors, including violations of a defendant's

rights under the confrontation clause, may be so insignificant as to be harmless." State v.

Guloy, 104 Wn.2d 412,425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986);

Chapman v. California, 386 U.S. 18, 21, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). "A

constitutional error is harmless if the appellate court is convinced beyond a reasonable

doubt that any reasonable jury would have reached the same result in the absence of the

error." Guloy, 104 Wn.2d at 425.

       Here, the original declarant testified at trial that she made the statement, so the

evidence was at most cumulative to her direct evidence. Additionally, the knife

testimony went to the robbery and conspiracy charges that resulted in acquittals, while

the attempted assault count was based on the unchallenged testimony that Limpert

strangled Hamilton. The "pulled a knife" statement simply did not affect the verdict in

the least.

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No. 33909-2-111
State v. Limpert


       The first argument is without merit. The claim of error was waived and, at most,

amounted to no more than harmless error.

       Prosecutor's Argument

       Mr. Lim pert next argues that the prosecutor committed misconduct by referencing

the conviction of sports figure O.J. Simpson for robbery in Nevada. He challenged the

analogy on different grounds in the trial court and fails here to establish such significant

error that he is entitled to any relief.

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

the prosecutor's conduct was both improper and resulted in prejudice in light of the

context of the entire record and the circumstances at trial. State v. Thorgerson, 172

Wn.2d 438,442, 258 P.3d 43 (2011). Prejudice exists only where there is a substantial

likelihood the misconduct affected the jury's verdict. Id. at 442-443. When a defendant

fails to object to an improper remark, he or she waives a claim of error unless the remark

is "' so flagrant and ill intentioned that it causes an enduring and resulting prejudice that

could not have been neutralized by an admonition to the jury.'" Id. at 443 (quoting State

v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994)). Thus, a properly challenged

statement will be reviewed for a "substantial likelihood" that it affected the verdict, while

unchallenged statements will be considered only if the error was too egregious for a            I
timely objection to be worthwhile. This court reviews alleged improper comments in the

context of the total argument, the issues in the case, the evidence addressed in the            I
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No. 33909-2-111
State v. Limpert


argument, and the instructions given to the jury. State v. Brown, 132 Wn.2d 529,561,

940 P .2d 546 ( 1997).

       The challenged comment falls in between the two noted extremes because the

argument Mr. Limpert presents now is different than the one he presented to the trial

court. There he argued the comment was improper because it involved the law of another

state, but here he claims that referencing the divisive figure of O.J. Simpson is an appeal

to passion and prejudice as well as a reference to evidence outside the record. Thus,

because the objection in the trial court is not the one he makes now, this claim is best

treated as if he made no objection at trial. His original objection gave the trial court no

reason to consider whether mere mention of the name of O.J. Simpson was affecting his

right to a fair trial or required reference to evidence outside of the record, let alone

whether some curative statement to the jury would have been in order.

       We need not consider whether the remark constituted error since it is quite clear

that it did not likely affect the verdict. The purpose of the analogy was to open the

prosecutor's remarks on the robbery charge with the reminder of a similar robbery

conviction resulting from an attempt to reclaim one's personal property in a hotel room.

Since the jury acquitted on the robbery and the associated conspiracy count, we are quite

certain that the O.J. Simpson analogy was not prejudicial to Mr. Limpert. Accordingly,

even if the remark constituted such egregious misconduct that a proper objection was




                                              11
No. 33909-2-III
State v. Limpert


excused, Mr. Limpert would not prevail because the comment simply did not harm his

case.

        The misconduct claim is meritless.

        Legal Financial Obligations

        The trial court imposed $800 worth of legal financial obligations (LFOs) that the

legislature has mandated be imposed at sentencing--the crime victim's compensation

penalty, the filing fee, and the DNA testing fee. Mr. Limpert argues that the court should

have conducted the individualized inquiry into his ability to pay before imposing any

LFOs.

        This argument has been rejected many times and we will not add to what has been

said previously. See generally State v. Stoddard, 192 Wn. App. 222,225, 366 P.3d 474

(2016); State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013).

        Accordingly, the judgment is affirmed.

        A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.



WE CONCUR:




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