                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                             April 10, 2018



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II

    STATE OF WASHINGTON,                                               No. 48909-1-II

                                 Respondent,

          v.

    MICHAEL LEE COOPER,                                         UNPUBLISHED OPINION

                                 Appellant.

         JOHANSON, J. — Michael Lee Cooper appeals his jury trial convictions and sentence for

second degree assault of a restaurant patron, third degree assault of an officer, and second degree

malicious mischief. He argues that (1) the trial court erred by not instructing the jury on self-

defense related to the second degree assault, (2) a police officer’s statements that Cooper wielded

a “weapon” were improper opinion testimony, and (3) the trial court erred when it imposed

mandatory legal financial obligations (LFOs) without considering RCW 9.94A.777. He also (4)

raises several arguments in a statement of additional grounds (SAG).1

         We hold that (1) the trial court correctly declined to give self-defense instructions, (2) any

improper opinion testimony by the officer was harmless error beyond a reasonable doubt, (3) the

trial court should have inquired into Cooper’s ability to pay mandatory LFOs in light of evidence

of his mental health condition, and (4) Cooper’s SAG issues either cannot be considered or fail.

Accordingly, we affirm Cooper’s convictions and sentence but remand for the trial court to




1
    RAP 10.10.
No. 48909-1-II


determine whether to impose the deoxyribonucleic acid (DNA) fee and criminal filing fee after

considering evidence of Cooper’s mental health condition under RCW 9.94A.777.

                                            FACTS

                                        I. BACKGROUND

       During an evening in December 2014, Officer John Moses responded to a report of an

assault and broken window at a restaurant. A block from the restaurant, Officer Moses came upon

Cooper, who was swinging around his head a “metal cane” that resembled a “walking stick” or

“collapsible type baton[].” 2 Verbatim Report of Proceedings (RP) at 133.

       Deducing that Cooper had perpetrated the assault and broken the window, Officer Moses

ordered Cooper to stop. Instead, Cooper began yelling and walking away from Officer Moses

more quickly. Officer Moses drew his stun gun and ordered Cooper to drop the stick, which

Cooper did and then began reaching into his pockets, throwing garbage to the ground. Officer

Moses then ordered Cooper to the ground and despite some resistance, handcuffed Cooper. At

one point while Officer Moses was attempting to handcuff Cooper, Cooper grabbed Moses’s wrist,

forcing Moses to struggle free in order to place handcuffs on Cooper.

       Officer Moses then inspected the restaurant where the assault occurred, in which one door

had a broken window. He also contacted Brent Nuttall, the restaurant patron whose nose Cooper

had broken.

       The State charged Cooper with second degree assault of Nuttall, third degree assault of

Officer Moses, second degree malicious mischief, and obstructing a law enforcement officer. The

second and third degree assault charges included deadly weapon sentencing enhancements.




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No. 48909-1-II


          II. PRETRIAL EVIDENTIARY RULING AND DISCUSSION OF STATE’S WITNESSES

       Before trial, Cooper moved to bar Officer Moses from referring to Cooper’s cane as a

“deadly weapon” on the basis that whether the cane was used as a deadly weapon was “a question

of fact for the jury.” 2 VRP at 101. The trial court granted his motion.

       The prosecutor told Cooper on the first day of trial that the State would not be calling

certain witnesses on its witness list. And despite being subpoenaed, one of the State’s witnesses,

a restaurant employee, did not testify and could not be located. When the State told Cooper’s

attorney it could not locate the witness, Cooper’s attorney at first stated she intended to call that

witness. But later in the trial, she decided against calling the witness.

                                             III. TRIAL

       At Cooper’s jury trial, the State presented testimony from Nuttall, a cashier and a cook who

were working at the restaurant during the incident, a restaurant manager who was not working

during the incident,2 and Officer Moses. Cooper did not present any testimony or evidence.

                               A. EVENTS INSIDE THE RESTAURANT

1.     NUTTALL’S TESTIMONY

       Nuttall testified that on the evening of the assault, he was inside the restaurant, speaking to

some acquaintances. At some point, Cooper approached the group. Cooper showed them a folding

walking cane, commenting that it could be used as a “potential weapon.” 3 VRP at 202. Cooper,

who was searching for a bag, then became agitated and began “circling about” inside the restaurant,

screaming. 3 VRP at 199. He was holding the cane, which he brandished while he walked. At



2
 The manager’s testimony related to videos of the incident that he had recorded from surveillance
cameras.

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No. 48909-1-II


one point, Cooper approached Nuttall, who feared from Cooper’s actions that he would strike

Nuttall with the cane. Nuttall described Cooper as “growling” and “angrily engaged” and the

restaurant employees as panicked. 3 VRP at 203.

       Fearing Cooper would hurt Nuttall or someone else in the restaurant, Nuttall grabbed

Cooper by his jacket and forcibly removed him from the restaurant; Nuttall then gave Cooper a

strong push away from the restaurant. Nuttall testified that he did not leave the restaurant; instead,

he “went back to sit down.” 3 VRP at 206. Nuttall then observed Cooper return from the parking

lot, “twirling [the cane] around as if to prepare” and reapproaching the restaurant door. 3 VRP at

207. When Nuttall saw Cooper coming back to the restaurant, Nuttall walked to the door, which

was open approximately one foot, to stop Cooper from reentering. Cooper and Nuttall arrived at

the door simultaneously, and then Cooper swung his cane through the gap and hit Nuttall hard in

the face, breaking his nose.

2.     EMPLOYEES’ TESTIMONY

       A restaurant cashier testified that earlier that evening, she told Cooper, 3 who was causing

problems with other customers, to leave the restaurant. When Cooper returned and began yelling,

Nuttall told him to leave. Cooper then left; according to the cashier, Nuttall never touched Cooper.

Once Cooper was outside, people inside attempted to lock the doors to prevent his reentering.

Nuttall went to lock one of the open doors, and in doing so, he was struck with the cane. Cooper

then broke a restaurant window and fled.




3
 Neither the cashier nor the cook were able to identify Cooper as the man with the cane. However,
Nuttall and Officer Moses identified Cooper.

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No. 48909-1-II


       A cook testified that he did not see Nuttall interact with Cooper until Cooper returned to

the restaurant. When Cooper came back to the restaurant, he tried to reenter, and Nuttall went to

the door while employees called 911. Cooper pushed partway through the front door. Nuttall

pushed both on the door and on Cooper to force him out and was struck with the cane.

3.     OFFICER MOSES’S TESTIMONY

       Consistent with the description of his encounter with and arrest of Cooper set forth above,

Officer Moses testified about events after Cooper left the restaurant. Officer Moses explained that

when he encountered Cooper, “dispatch had already reported that [Cooper] had assaulted

somebody inside [the restaurant] and that he had broken a window utilizing the stick, so therefore

I know [sic] that it was being used as a weapon at the time.” 2 VRP at 137 (emphasis added).

Officer Moses ordered Cooper to “drop the weapon,” referring to the cane, and Cooper complied.

2 VRP at 137. Officer Moses also explained that he was concerned when Cooper reached into his

pockets that he would pull out a “second weapon.” 2 VRP at 138. The trial court overruled

Cooper’s objection to Officer Moses’s “use of [the] term right now that was subject to a motion.”

2 VRP at 141.

                             B. SELF-DEFENSE INSTRUCTION RULING

       After the State rested, Cooper requested that the trial court instruct the jury on self-defense.

The trial court denied the request because under the facts presented, there was no legitimate claim

of self-defense where Nuttall was not “doing anything other than to try to keep Mr. Cooper from

reentering.” 5 VRP at 350.




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No. 48909-1-II


                                   IV. VERDICT AND SENTENCING

         The jury found Cooper guilty of the second degree assault of Nuttall, third degree assault

of Officer Moses, and second degree malicious mischief, but not guilty of obstruction of a police

officer or any deadly weapon enhancements.

         At sentencing, the State discussed Cooper’s extensive criminal history, mental health

issues, and homelessness at the time of the offense. Cooper also stated that he was on social

security because of his mental illness.4 Before imposing Cooper’s sentence, the trial court

recognized Cooper’s significant mental health issues that contributed to his crime. The trial court

sentenced Cooper to 80 months of confinement. It also imposed $800 in mandatory LFOs but did

not impose any discretionary LFOs, based upon Cooper’s inability to pay. Cooper did not raise

any argument that mandatory LFOs should not be imposed under RCW 9.94A.777.

                                            ANALYSIS

                                          I. SELF-DEFENSE

         Cooper argues that his right to present a defense was violated when the trial court declined

to instruct the jury on self-defense because self-defense was not available under the circumstances.

Cooper claims that there was evidence to support that Nuttall was the first aggressor and that

Cooper acted in self-defense in the face of Nuttall’s allegedly continuing assault. We disagree

with these arguments.




4
    Before trial, Cooper had also been involuntarily committed.

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No. 48909-1-II


                                       A. LEGAL PRINCIPLES

       “The standard of review when the trial court has refused to instruct the jury on self-defense

depends on why the court refused the instruction,” a subjective or objective inquiry by the trial

court. State v. Read, 147 Wn.2d 238, 243, 53 P.3d 26 (2002). For the subjective inquiry, “[i]f the

trial court refused to give a self-defense instruction because it found no evidence supporting the

defendant’s subjective belief of imminent danger of great bodily harm, an issue of fact, the

standard of review is abuse of discretion.” Read, 147 Wn.2d at 243. For the objective inquiry,

“[i]f the trial court refused to give a self-defense instruction because it found no reasonable person

in the defendant’s shoes would have acted as the defendant acted, an issue of law, the standard of

review is de novo.” Read, 147 Wn.2d at 243. When we determine whether some evidence

supported a self-defense instruction, we review the entire record in the light most favorable to the

defendant. State v. Callahan, 87 Wn. App. 925, 933, 943 P.2d 676 (1997).

       There must be “some evidence” of self-defense for a self-defense instruction to be

appropriate. Read, 147 Wn.2d at 242. The objective inquiry requires a determination of what a

reasonable person would have done in the defendant’s situation. Read, 147 Wn.2d at 243.

                 B. NO EVIDENCE THAT COOPER WAS ACTING IN SELF-DEFENSE

       Here, Cooper failed to provide any evidence that he had a right to self-defense because

under the circumstances, a reasonable person in Cooper’s situation would not have acted as Cooper

acted. See Read, 147 Wn.2d at 243. Although the three witnesses to events inside the restaurant

gave somewhat different versions of the encounter, none of their testimony supported that a

reasonable person in Cooper’s position would have struck Nuttall with the cane. See Read, 147

Wn.2d at 243.


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No. 48909-1-II


       Nuttall testified that he only returned to the doorway when he saw Cooper returning and

because he sought to stop Cooper from reentering. The cook testified that Cooper came in, started

a commotion while looking for his bag, went back outside, started yelling and swinging a cane at

people outside, and then returned and came partway through the door. It was then that Nuttall

pushed Cooper back outside and in doing so, was struck with the cane. The cashier testified that

Cooper left the restaurant, then Nuttall attempted to lock the door, and Cooper struck Nuttall with

his cane. All three testified that Nuttall did not leave the restaurant during this encounter.

       Under these accounts, Nuttall ejected Cooper from the restaurant but did not follow or give

chase to him. Cooper then returned and struck a blow to Nuttall, who was barring his reentry.

Given the circumstances, a reasonable person in Cooper’s situation would not have struck such a

blow. See Read, 147 Wn.2d at 243. “[W]hile the threshold burden of production for a self-defense

instruction is low, it is not nonexistent.” State v. Janes, 121 Wn.2d 220, 237, 850 P.2d 495 (1993).

Cooper failed to meet this burden.

                                 C. FIRST AGGRESSOR ARGUMENT

       Cooper argues that Nuttall, not Cooper, initiated physical contact and was the first

aggressor, so that Cooper was acting in self-defense. We reject this argument.

       A first aggressor loses the right to act in self-defense. State v. Dennison, 115 Wn.2d 609,

617, 801 P.2d 193 (1990). However, if an aggressor in good faith withdraws “‘from the combat

at such a time and in such a manner as to have clearly apprised his adversary that he in good faith

was desisting, or intended to desist, from further aggressive action,’” the right to act in self-defense

is revived. Dennison, 115 Wn.2d at 617 (quoting State v. Craig, 82 Wn.2d 777, 783, 514 P.2d 151

(1973)). And where the victim was the aggressor in an earlier encounter that ended because the


                                                   8
No. 48909-1-II


victim and defendant have withdrawn, the victim’s earlier aggression does not excuse the

defendant from provoking a later assault. State v. Brown, 3 Wn. App. 401, 403-04, 476 P.2d 124

(1970).

          Cooper relies on Nuttall’s testimony that he grabbed and pushed Cooper. Cooper’s

argument overlooks that even if Nuttall provoked the encounter, a reasonable person in Cooper’s

situation would not have returned to the restaurant and struck Nuttall with the cane. Cooper’s first

aggressor argument also overlooks Nuttall’s testimony that he went to sit down and then returned

to the restaurant door only after he saw Cooper returning from the parking lot. Thus, Nuttall’s

testimony was that the initial encounter that occurred when Nuttall pushed Cooper out of the

restaurant had ended and that both parties had withdrawn. Accordingly, even if Nuttall were the

first aggressor in the earlier encounter, Cooper was not excused from returning to the restaurant

and provoking another encounter, which culminated in Cooper striking Nuttall with the cane. See

Brown, 3 Wn. App. at 403-04.

          We hold that the trial court properly declined to give self-defense instructions.

                                        II. OPINION TESTIMONY

          Cooper argues that his rights to a jury trial and to a fair trial were violated when the trial

court allowed Officer Moses to testify that the cane was a “‘weapon.’”5 Br. of Appellant at 16.

We hold that any error in this regard was harmless beyond a reasonable doubt.




5
 Cooper also appears to argue that this error impacted the jury’s verdict on the deadly weapon
enhancement for the second degree assault. However, the jury did not find the deadly weapon
enhancement. Thus, his argument is relevant only to the conviction for second degree assault of
Nuttall.

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No. 48909-1-II


                                       A. LEGAL PRINCIPLES

         Even if a court determines that a claim of unobjected-to, allegedly improper opinion

testimony is manifest constitutional error, harmless error analysis applies. State v. Kirkman, 159

Wn.2d 918, 927, 155 P.3d 125 (2007). To be harmless, the State must show that there is no

reasonable doubt that any reasonable jury would have still reached the same result absent the error.

State v. Lamar, 180 Wn.2d 576, 588, 327 P.3d 46 (2014); State v. Binh Thach, 126 Wn. App. 297,

313, 106 P.3d 782 (2005). The untainted evidence must be so overwhelming that it necessarily

leads to a finding of guilt. Binh Thach, 126 Wn. App. at 313.

                          B. HARMLESS BEYOND A REASONABLE DOUBT

         To convict Cooper of second degree assault, the jury had to find that Cooper either

assaulted Nuttall “with a deadly weapon” or “intentionally assaulted . . . Nuttall and thereby

recklessly inflicted substantial bodily harm.” Clerk’s Papers (CP) at 128. For the first alternative,

a “[d]eadly weapon” was defined as “any weapon, device, instrument, substance, or article, which

under the circumstances in which it is used, attempted to be used, or threatened to be used, is

readily capable of causing death or substantial bodily harm.” CP at 142.

         All three witnesses from inside the restaurant—the cook, the cashier, and Nuttall—testified

that Cooper used his cane to strike Nuttall in the face, breaking his nose. The cook’s, cashier’s,

and Nuttall’s testimony that Cooper used his cane to break Nuttall’s nose went to whether the cane

was a “[d]eadly weapon” because it showed that “under the circumstances in which it [was] used

. . . [was] readily capable of causing”—and in fact did cause—“substantial bodily harm.”6 CP at




6
    A broken nose is “‘[s]ubstantial bodily harm.’” RCW 9A.04.110(4)(b).

                                                 10
No. 48909-1-II


142. Cooper presented no contrary evidence. The cook’s, cashier’s, and Nuttall’s testimony was

distinct from and untainted by Officer Moses’s “weapon” testimony, which Cooper claims was

improper opinion testimony.

       The cook’s, cashier’s, and Nuttall’s testimony that Cooper broke Nuttall’s nose with the

cane amounted to overwhelming untainted evidence that Cooper’s cane was a deadly weapon, such

that he committed a second degree assault when he struck Nuttall with the cane. Further, that

testimony established that Cooper purposely struck Nuttall, so that it showed that Cooper

“intentionally assaulted . . . Nuttall and thereby recklessly inflicted substantial bodily harm.” CP

at 128. Thus, the evidence also established the alternative for the jury to find a second degree

assault that did not involve a deadly weapon.

       The overwhelming untainted evidence necessarily led to a finding of guilt of second degree

assault, absent Officer Moses’s “weapon” testimony.         Accordingly, even assuming without

deciding that Officer Moses’s testimony about the cane being a “weapon” was improper opinion

testimony, the error was harmless beyond a reasonable doubt. We reject Cooper’s arguments to

the contrary.

                               III. LEGAL FINANCIAL OBLIGATIONS

       Cooper argues that the trial court erred when it imposed mandatory LFOs without inquiring

into his means to pay as required by RCW 9.94A.777.7 The State responds that Cooper waived



7
  Cooper also argues that the trial court erred under former RCW 10.01.160 (2010) and State v.
Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015), when it entered a boilerplate finding of ability to
pay and required Cooper to pay mandatory LFOs. But Blazina applies to discretionary LFOs, and
former RCW 10.01.160(3) does not give a trial court discretion regarding whether to impose
mandatory LFOs. See State v. Stoddard, 192 Wn. App. 222, 225, 366 P.3d 474 (2016).
Accordingly, Cooper’s argument fails.

                                                11
No. 48909-1-II


his argument related to RCW 9.94A.777. We exercise our discretion to reach Cooper’s RCW

9.94A.777 argument and remand on this ground.

       (1) Before imposing any legal financial obligations upon a defendant who suffers
       from a mental health condition, other than restitution or the victim penalty
       assessment under RCW 7.68.035, a judge must first determine that the defendant,
       under the terms of this section, has the means to pay such additional sums.
               (2) For the purposes of this section, a defendant suffers from a mental health
       condition when the defendant has been diagnosed with a mental disorder that
       prevents the defendant from participating in gainful employment, as evidenced by
       a determination of mental disability as the basis for the defendant’s enrollment in a
       public assistance program, a record of involuntary hospitalization, or by competent
       expert evaluation.

RCW 9.94A.777.

       At sentencing, Cooper did not argue that RCW 9.94A.777 gave the trial court discretion to

determine whether to impose mandatory LFOs other than the victim assessment based on Cooper’s

mental health condition. Accordingly, the trial court imposed the mandatory LFOs for DNA fees

and the criminal filing fee. See former RCW 43.43.7541 (2011) ($100 mandatory DNA fee);

former RCW 36.18.020(2)(h) (2013) ($200 mandatory filing fee).8

       Although Cooper did not raise RCW 9.94A.777 until his appeal, we exercise our discretion

to reach this issue. See State v. Tedder, 194 Wn. App. 753, 756, 378 P.3d 246 (2016); see also

State v. Blazina, 182 Wn.2d 827, 835, 344 P.3d 680 (2015) (exercising its discretion to reach an

unpreserved objection to imposition of discretionary LFOs in light of the “[n]ational and local

cries for reform of broken LFO systems”).




8
 The trial court also imposed the mandatory victim assessment. See RCW 7.68.035(1)(a). But
RCW 9.94A.777(1) does not provide for the mandatory victim assessment to be waived, and
Cooper’s arguments accordingly do not affect the imposition of this LFO.
                                              12
No. 48909-1-II


       Cooper was involuntarily committed before trial. He also professed to be on social security

due to mental illness, and at sentencing the State acknowledged that Cooper was homeless at the

time of the incident and had mental health issues and a significant criminal history. Despite the

evidence in the record suggesting that Cooper suffered from a mental health condition preventing

him from participating in gainful employment, the trial court never fully inquired into Cooper’s

ability to be gainfully employed. We remand to the trial court to consider whether to impose the

DNA fee and criminal filing fee pursuant to RCW 9.94A.777(1) after taking into consideration

evidence of Cooper’s mental health condition.

                                          IV. SAG ISSUES

                                     A. “NO-SHOW” WITNESS

       Cooper appears to argue that it was error for the State not to call a witness who would have

testified in his favor. The witness to whom Cooper appears to be referring was subpoenaed by the

State but failed to appear at Cooper’s trial. Although Cooper’s attorney stated at first that she

would call this “no-show” witness to testify for Cooper, Cooper’s attorney later stated that she had

decided not to call the witness. The record shows that the State was not at fault for the “no-show”

witness’s failure to appear, and we reject this argument.

                                     B. WITNESS CREDIBILITY

       Cooper argues that the restaurant manager and employees lied under oath.                But a

determination of witness credibility is for the trier of fact and not subject to review by this court.

State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Cooper’s argument accordingly fails.




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No. 48909-1-II


                                  C. MATTERS OUTSIDE THE RECORD

          Cooper argues that (1) the restaurant manager tampered with evidence and (2) the State

failed to call other witnesses whose favorable testimony was allegedly noted in a police report.

We do not consider his arguments, which rest upon matters outside the record.

          On direct appeal, we cannot consider arguments that rely on matters outside the record.

State v. Rice, 159 Wn. App. 545, 575, 246 P.3d 234 (2011), aff’d, 174 Wn.2d 884, 279 P.3d 849

(2012).

1.        VIDEO

          Cooper relies on the State’s introduction of footage from only 6 of 18 cameras as evidence

that the manager tampered with the cameras. The restaurant manager explained that he did not

record footage that did not show who broke the door, such as footage from the kitchen. The

manager also explained that some cameras were not functional. Nothing in the record supports

that the manager concealed footage that would have exonerated Cooper or otherwise tampered

with evidence. Thus, any evidence to support Cooper’s argument necessarily is outside the record

on direct appeal, and we do not consider his argument further.

2.        WITNESSES

          Cooper claims a police report supports that the State failed to call favorable witnesses. But

contrary to Cooper’s arguments, the record does not contain any evidence that the witnesses not

called by the State other than the “no-show” witness discussed above would have testified

favorably. Accordingly, Cooper’s argument rests upon matters outside the record.




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No. 48909-1-II


                                    D. FAILURE TO IDENTIFY

       Cooper argues that two of the State’s witnesses could not identify Cooper as the person

who struck Nuttall. This argument appears to be a challenge to the sufficiency of the evidence that

Cooper was the perpetrator and is rejected.

       Although Cooper is correct that the cook and cashier could not identify Cooper as the man

with the cane, he overlooks that Nuttall and Officer Moses—the victims of the assaults—identified

Cooper. Nuttall’s and Officer Moses’s identifications were sufficient evidence to prove that

Cooper perpetrated the assaults and malicious mischief. See State v. Homan, 181 Wn.2d 102, 106,

330 P.3d 182 (2014). Accordingly, Cooper’s failure-to-identify argument lacks merit.

       We affirm Cooper’s convictions but remand for the trial court to consider whether to

impose the DNA fee and criminal filing fee under RCW 9.94A.777.

       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.



                                                     JOHANSON, J.
 We concur:



 MAXA, C.J.




 MELNICK, J.




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