                                                                        FILED
                                                                    DECEMBER 13, 2016
                                                                  In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division Ill




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

STATE OF WASHINGTON,                          )
                                              )         No. 33965-3-111
                      Respondent,             )
                                              )
       v.                                     )
                                              )
CAMERON J. PETERSON,                          )         UNPUBLISHED OPINION
                                              )
                      Appellant.              )

       KORSMO, J. -    Cameron Peterson appeals a jury verdict convicting him on only

one of two charges arising from a tavern fight in Spokane. Since there is no showing of

prejudicial error, we affirm.

                                          FACTS

       Mr. Peterson was charged with both first and second degree assault arising from a

tavern fight that spilled out into the street. Inside the tavern, Mr. Peterson struck Gregory

Zielke Sr., in the head, knocking the man out. The senior Zielke had been engaged in an

argument with Peterson's friend, Paul Cook. Peterson ran outside the tavern and was

pursued by Gregory Zielke Jr.

       Peterson was unable to get his car started, so he removed his .25 mm gun from the

vehicle and fled on foot. The younger Zielke overtook Peterson and tackled him; a fight
No. 33965-3-111
State v. Peterson


ensued. Peterson ended the fight by shooting Zielke once in each of his forearms. The

younger man then ran to safety, ending the fight.

       The court instructed the jury on self-defense and defense of others, and also that

the defendant had no duty to retreat. In closing argument, the prosecutor argued, without

objection, that the jury should consider "what would you have done" and that the

defendant had reasonable alternatives to self-defense. The jury acquitted Peterson of first

degree assault involving the younger Zielke, but convicted him of second degree assault

against the senior Zielke.

       After receiving a standard range sentence of three months in jail, Mr. Peterson

timely appealed to this court.

                                       ARGUMENT

       The appeal presents two challenges to the conviction, and Mr. Peterson's

statement of additional grounds (SAG) presents numerous other arguments. We consider

first the challenge to the sufficiency of the evidence, and then a claim that the prosecutor

engaged in misconduct in closing argument, before briefly addressing the pro se

contentions.

      Sufficiency of the Evidence

      Mr. Peterson first contends that the jury had insufficient evidence of second

degree assault in light of the evidence that he was defending Mr. Cook. Since the jury




                                             2
No. 33965-3-III
State v. Peterson


was not required to believe that evidence, the remaining evidence amply supports its

verdict.

       Sufficiency of the evidence review is subject to very well settled standards.

Appellate courts review such challenges to see if there was evidence from which the trier

of fact could find each element of the offense proven beyond a reasonable doubt. State v.

Green, 94 Wn.2d 216, 221-222, 616 P .2d 628 (1980) ( citing Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). The reviewing court will

consider the evidence in a light most favorable to the prosecution. Id. This court also

must defer to the finder of fact in resolving conflicting evidence and credibility

determinations. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

       When a jury is instructed on self-defense or defense of others, the State is required

to disprove the defense beyond a reasonable doubt. State v. Acosta, IO 1 Wn.2d 612, 615-

616, 683 P .2d 1069 ( 1984). Agreeing that the State proved the other elements of second

degree assault, Mr. Peterson's sole challenge concerns the evidence that he was acting in

defense of Mr. Cook at the time he struck Mr. Zielke Sr. He argues that the State did not

disprove his defense of others claim.

       This argument fails because the jury was not required to believe his testimony.

There was conflicting evidence concerning how the incident occurred. The State's

evidence showed that Mr. Peterson without warning struck Mr. Zielke Sr. in the back of

the head in a surprise attack. There was no imminent danger of assault. While the

                                             3
No. 33965-3-III
State v. Peterson


defense certainly disagreed with that view of the case, the question here is whether there

was evidence from which the jury could find that events unfolded as the State argued

they did. Such was the case.

       The evidence supported the jury's conclusion that Mr. Peterson was not acting in

the defense of Mr. Cook when he struck the senior Zielke. Therefore, the evidence was

sufficient to support that conviction.

       Prosecutor's Argument

       Mr. Peterson next contends that the prosecutor engaged in misconduct in her

closing argument by misstating the law. While we agree that the prosecutor erred, there

was no prejudice to the defense.

       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

                                              4
No. 33965-3-III
State v. Peterson


unchallenged statements will be considered only if the error was too egregious for a

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

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

940 P.2d 546 (1997).

       A prosecutor has wide latitude to argue reasonable inferences from the evidence.

Thorgerson, 172 Wn.2d at 448. However, the prosecutor commits reversible misconduct

when he urges the jury to consider evidence outside the record; appeals to passion and

prejudice are typically based on matters outside the record. State v. Pierce, 169 Wn.

App. 533,553,280 P.3d 1158 (2012). Furthermore, a prosecutor is not allowed to assert

in argument his personal belief in the accused's guilt. State v. Reed, 102 Wn.2d 140, 145,

684 P.2d 699 (1984). It also is improper for the prosecutor to shift the burden of proof to

the defendant or argue that the defendant failed to present evidence. Thorgerson, 172

Wn.2d at 453.

      Appellant contends that the prosecutor's argument that the jury should equate a

reasonable person with what they would do misstated the law and thereby lowered the

prosecution's burden of proof. At least one earlier case recognizes that this argument is a

misstatement of the law because it ignores the objective component of the reasonable

person standard. State v. Walker, 164 Wn. App. 724, 734-736, 265 P.3d 191 (2011). We

agree that the prosecutor's statements here were erroneous for the same reason.

                                             5
No. 33965-3-111
State v. Peterson


       We need not decide whether or not a timely objection could have cured the error,

because we conclude that appellant has not established that he was prejudiced by the

argument. The bulk of the prosecutor's comments in the closing arguments were directed

to the first degree assault charge-the count on which the jury acquitted Mr. Peterson.

She made only a few brief references to the second degree assault count, and none of

those comments referred to the defense of others standard. From the prosecutor's

perspective, the second degree assault simply involved an attack from behind without

warning and did not present issues of defense of others. Similarly, none of her "what

would you have done" statements referenced the second degree assault charge. Each of

them challenged some action taken by Mr. Peterson related to his confrontation with the

younger Zielke.

       In the context of the prosecutor's closing argument, all of the challenged

statements referenced the first degree assault charge on which the jury acquitted Mr.

Peterson. We are convinced beyond a reasonable doubt that they did not affect the

verdict on the second degree assault charge. The erroneous statements were not

prejudicial on that charge.

       Statement ofAdditional Grounds

       Mr. Peterson filed a pro se SAG raising numerous claims that largely reargue the

case from his point of view. None of the arguments have merit.




                                            6
No. 33965-3-111
State v. Peterson


       This court will consider only arguments that are not repetitive of briefing. RAP

10.IO(a). We also will not consider a defendant's statement of additional grounds for

review if it does not inform the court of the nature and occurrence of alleged errors. RAP

10.IO(c); State v. Bluehorse, 159 Wn. App. 410,436,248 P.3d 537 (2011). An appellate

court is not required to search the record in support of claims made in the SAG. RAP

10.IO(c). Complaints about attorney performance cannot be entertained if the attorney's

conduct "can be characterized as legitimate trial strategy or tactics." State v. McNeal,

145 Wn.2d 352, 362, 37 P.3d 280 (2002). Finally, issues that involve facts or evidence

not in the record are properly raised through a personal restraint petition, not a statement

of additional grounds. State v. Calvin, 176 Wn. App. 1, 26,316 P.3d 496 (2013).

       Many of the arguments address either defense counsel's trial strategy or issues

outside of the record that we cannot consider. The personal statement includes a list of

nineteen statements of additional grounds for review. Numbers 1, 2, 4, 5, 6, 7, 8, 9, 12,

18, and 19 present evidence not in the record. Number 3 is a disagreement with his

counsel's trial strategy. Numbers 10, 11, 14, 15, 16, and 17 are not statements of

additional grounds for review; most address the shooting incident of which he was

acquitted. Finally, Number 13 is an accusation of prosecutorial misconduct that cannot

be located in the report of proceedings. These statements are all without merit.




                                             7
No. 33965-3-111
State v. Peterson


       Finally, Mr. Peterson's counsel requests that this court excuse him from repaying

the State for the costs of this appeal. While the author of this opinion would deny the

request, a majority of the court has voted to grant the request.

       The conviction is affirmed. Appellate costs are waived.

       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:




       Pennell, J.




                                              8
