                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                        March 5, 2019




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                              No. 50414-6-II

                               Respondent,

        v.

 KEITH ROBERSON,                                             UNPUBLISHED OPINION

                               Appellant.

       WORSWICK, J. — Keith Roberson appeals his convictions of two counts of second degree

assault. He argues that (1) the prosecutor committed misconduct by arguing that Roberson

created the need for self-defense, and by asking him to speculate about the motives of another

witness; (2) that insufficient evidence supports the second count of second degree assault; and

(3) that the trial court erred by not imposing an exceptional downward sentence. Finding no

error, we affirm.

                                             FACTS

       Around 3:00 a.m., Roberson and a woman were using methamphetamine in Roberson’s

van. The woman took the drugs and paraphernalia and then jumped out of the van as a car pulled

in behind the van. A man exited the car, and approached the van lunging at Roberson with

“brass knuckles with a fixed dagger on the end.” Verbatim Transcript (VT) at 474. Roberson

quickly drove away, stopping near a wooded area. He then grabbed his gun, exited his van, and

ran into the wooded area. He continued running, and eventually encountered Michael Walters’s
No. 50414-6-II



house. He knocked on, and then opened, Walters’s door. Roberson was agitated and upset,

screaming for help, and for someone to call 911.

       Walters called 911. Walters reported to the dispatcher that Roberson told him that

Roberson was being chased and appeared scared. Walters also told the 911 dispatcher that

Roberson had a pistol, and had fired it “kind of at the ground.” VT (Excerpt Trial Day 1) at 32.

While on the phone with 911, Walters asked Roberson not to shoot.

       Michael Elkhart, Walters’s neighbor, heard screaming. He called 911, and ran outside

with a flashlight. Elkhart approached Walters’s yard, still holding a flashlight. Elkhart was

approximately 40 to 50 feet away from Walters, and saw Roberson and Walters talking at

Walters’s door. Roberson began aiming the gun toward Elkhart, and Walters told Elkhart to

leave. Roberson shot in Elkhart’s direction, hitting a fence. Roberson then aimed his gun at

Walters, and Walters asked Roberson not to point it at him and to put away the gun. Roberson

was crying and told Walters, “I don’t want to die, but I’m not going to go out alone.” VT

(Excerpt Trial Day 1) at 93.

       At various times, Roberson tried to speak with the 911 dispatcher. Roberson did not

believe that a 911 dispatcher was on the phone.

       Clallam County sheriffs arrived and arrested Roberson. The State charged Roberson with

first degree assault of Elkhart, with intent to inflict great bodily harm, while armed with a

firearm, and second degree assault of Michael Walters, with a deadly weapon, while armed with

a firearm. At trial, Roberson, Walters, Elkhart, and a Clallam County Sheriff’s Deputy testified

consistently with the above facts. Walters also testified that despite his request, Roberson




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No. 50414-6-II



continued to aim the gun at him. Additionally, Walters’s and Elkhart’s 911 calls were admitted.

The transcribed 911 calls show that Roberson was crying and yelling throughout the call.

       Roberson testified that he used methamphetamine, and was using methamphetamine on

the night of the incident. He explained that he was “making a lot of noise” and “screaming and

hollering because [he] wanted somebody to find out where [he] was,” and that he twice “fired a

warning shot.” VT at 483. He testified that he was not trying to hurt Elkhart or Walters, but

wanted someone to call the police for him. He also acknowledged that even though he heard

Walters ask him to put the gun away, he did not.

       The following exchange occurred during the State’s cross-examination of Roberson:

       Q. Okay, you said you remember everything?

       A. Yes, ma’am, I do.

       Q. Do you remember him saying to you please put that away?

       A. Yes.

       Q. Okay. And that was the gun he was telling you to please put away?

       A. Yes.

       Q. And you didn’t put it away?

       A. No.

       Q. Um, do you remember him saying don’t shoot?

       A. Yes.

       Q. In fact, he said don’t shoot more than once; right?

       A. Yes.




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No. 50414-6-II



      Q. Okay. Do you remember him saying don’t point it at me?

      A. I heard him say that.

      Q. Okay, and he said that more than once; right?

      A. Yes, he did.

      Q. And you were pointing the gun at him?

      A. No, I wasn’t.

      Q. So, he was just—you weren’t pointing the gun at him, and he was just saying
      don’t point it at me for—

      A. Absolutely, because he was on the phone with dispatch. But the reason why he
      was saying don’t point the gun at me, don’t point the gun at me, I’m just looking at
      him hollering for help.

      Q. So he was just making that up?

      A. He was—that’s all, don’t point the gun at me, don’t point the gun—I wasn’t—
      I had no reason—I had no—this man’s saving my life. I had no reason to point the
      gun at him, I didn’t want anything from him but help. I just wanted him to help
      me.

      Q. So he was just making that up for 911?

      A. Yes—

      MR. ANDERSON: Objection as to the motives of the witness.

      THE COURT: Overruled.

      THE WITNESS: I never pointed the gun at him.

VT at 499-501.




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No. 50414-6-II



       The jury was instructed on first degree assault, and the lesser included crime of second

degree assault. The jury was also instructed on self-defense to assault.1 During closing

argument, the prosecutor argued:

               So, my argument is how can someone argue self-defense when they create
       the situation. When he essentially through his own behavior, brings someone into
       the area of danger, and when they come, he shoots at them. And then says well, I
       was defending myself—

VT at 577. Roberson objected to the prosecutor’s comment on the grounds that the prosecutor’s

comment was an improper first-aggressor argument. The State agreed that the argument that

Roberson “created the risk” was improper. VT at 580. The trial court then instructed the jury to

disregard the prosecutor’s argument that Roberson created the risk.

       The jury found Roberson guilty of two counts of second degree assault while armed with

a firearm.

       Dr. Kenneth Muscatel performed a psychological evaluation for sentencing purposes. He

found that “it is likely that methamphetamine played a very significant role in the incident,” as

well as “mental health impairment.” Clerk’s Papers (CP) at 45. He also determined that in

addition to methamphetamine use, Roberson “likely ha[d] symptoms of a significant mental

disturbance at the time of the incident, and those factors likely affected his behavior, thinking,

judgment, and emotional responses at that time.” CP at 45. “It is likely his impaired mental

status, reflecting both pre-existing mental health impairment and chronic features of impaired




1
 The trial court’s instruction reflected the language provided in 11Washington Practice:
Washington Pattern Jury Instructions: Criminal 17.02 (3d ed. 2008)(“Lawful Force—Defense of
Self, Others, Property”).


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No. 50414-6-II



mental health, as well as his use of methamphetamine at the time, were the likely participants of

this rather bizarre incident.” CP at 45.

       Roberson asked the trial court to consider evidence of mental illness as grounds for an

exceptional downward sentence under RCW 9.94A.535(1)(e). He also requested that the court

impose the firearm enhancements to run concurrently under State v. Houston-Sconiers, 188

Wn.2d 1, 391 P.3d 409 (2017). The trial court considered Dr. Muscatel’s report, but declined

imposing an exceptional sentence, finding that the mitigating factors in RCW 9.94A.535 were

inapplicable. The court also found that to the extent that Roberson was “not capable of

appreciating the wrongfulness of [his] behavior that night, that was largely attributable to the fact

that [he] . . . had voluntarily consumed the methamphetamine.” VT at 653-54. The trial court

imposed the firearm enhancements to run consecutively. Roberson appeals.

                                            ANALYSIS

A.     PROSECUTORIAL MISCONDUCT

       1. Legal Principles

       To establish prosecutorial misconduct, a defendant bears the burden of proving that the

prosecutor’s conduct was both improper and prejudicial. State v. Thorgerson, 172 Wn.2d 438,

442, 258 P.3d 43 (2011). If a defendant establishes that the prosecutor’s conduct was improper,

we then determine whether he was prejudiced. State v. Emery, 174 Wn.2d 741, 760, 278 P.3d

653 (2012). Where an objection was made, a defendant must “show that the prosecutor’s

misconduct resulted in prejudice that had a substantial likelihood of affecting the jury’s verdict.”

Emery, 174 Wn.2d at 760. Where a trial court issues a curative instruction, we presume the jury




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No. 50414-6-II



follows the court’s instructions. State v. Anderson, 153 Wn. App. 417, 428, 220 P.3d 1273

(2009), review denied, 170 Wn.2d 1002 (2010).

       In reviewing a prosecutor’s comments during closing argument, we look to the context of

the total argument, the issues presented in the case, the evidence addressed in the argument, and

the jury instructions. State v. Jackson, 150 Wn. App. 877, 883, 209 P.3d 553 (2009). A

prosecutor has wide latitude to draw reasonable inferences from the evidence and to express such

inferences to the jury during closing argument. Thorgerson, 172 Wn.2d at 448.

       2. Closing Argument

       Roberson argues that the prosecutor committed misconduct by arguing that Roberson had

“no right to assert self-defense.” Br. of App. at 15. Specifically, Roberson assigns error to the

prosecutor’s argument that Roberson created the dangerous situation, and then claimed self-

defense. We hold that although the comment was improper, the trial court’s instruction cured

any possible prejudice.

       Roberson cites State v. Davenport, to support his argument, but that case is

distinguishable. 100 Wn.2d 757, 675 P.2d 1213 (1984). In Davenport, although the defendant

was not charged as an accomplice and the jury was not instructed on accomplice liability, the

prosecutor argued that he was guilty as an accomplice. Davenport, 100 Wn.2d at 759-60. The

defendant objected to the argument, but the trial court overruled the objection. Davenport, 100

Wn.2d at 759. Further, during deliberations, the jury asked the court for “a definition of

‘accomplice’ in terms of participation in the crime.” Davenport, 100 Wn.2d at 759. The

Supreme Court held that the prosecutor’s argument was improper, and the record demonstrated




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No. 50414-6-II



that the jury considered the improper arguments, and may have been prejudiced by it.

Davenport, 100 Wn.2d at 763, 765.

         Here, Roberson’s objection was sustained and the trial court instructed the jury to

disregard the prosecutor’s argument. Roberson baldly asserts that even though the court issued a

curative instruction, there is a reasonable probability that the prosecutor’s comment affected the

jury’s verdict.2 But where a trial court issues a curative instruction, we presume the jury follows

the court’s instructions. Anderson, 153 Wn. App. at 428. Accordingly, Roberson’s argument

fails.

         3. Cross-Examination

         Roberson claims that the prosecutor committed misconduct during cross-examination of

Roberson when she asked Roberson if Walters was “making this up for 911.” Br. of App. at 17.

Specifically, Roberson argues that the prosecutor improperly asked Roberson to opine on

whether a witness was being honest. We disagree.

         It is improper for a prosecutor to ask a witness whether another witness is lying. State v.

Ramos, 164 Wn. App. 327, 334, 263 P.3d 1268 (2011). Some factors we consider in

determining whether a prosecutor’s misconduct likely affected the verdict, are “whether the

prosecutor was able to provoke the defense witness to say that the State’s witness must be lying,

whether the State’s witness’s testimony was believable and/or corroborated, and whether the




2
 Roberson does not challenge the trial court’s curative instruction or otherwise explain his
contention that the court’s curative instruction was ineffective.


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No. 50414-6-II



defense witness’s testimony was believable and/or corroborated.” State v. Padilla, 69 Wn. App.

295, 301, 846 P.2d 564 (1993).

       The prosecutor did not provoke Roberson to testify that another witness must be lying.

Because the prosecutor did not ask Roberson if another witness’s testimony was a lie, the

authority that Roberson relies upon is distinguishable. The prosecutor asked Roberson about a

prior occurrence with Walters. Moreover, even assuming that the prosecutor’s question was

improper, Roberson has not demonstrated a substantial likelihood that the misconduct affected

the verdict. Walters’s 911 call was admitted and played for the jury, and was consistent with

Walters’s testimony. Walters testified that Roberson aimed the gun at him after he asked

Roberson to put away the gun. And Walters testified that Roberson fired the gun after Walters

asked him not to. Given the overwhelming evidence supporting Walters’s testimony, Roberson

has not demonstrated a substantial likelihood that the improper conduct affected the verdict.

B.     SUFFICIENCY OF THE EVIDENCE

       Roberson argues that his conviction of second degree assault of Walters (count 2) is not

supported by sufficient evidence. Specifically, he contends that there is insufficient evidence of

Roberson’s specific intent to create apprehension and fear of bodily injury. We disagree.

       Due process requires the State to prove every element of the charged crimes beyond a

reasonable doubt. State v. Kalebaugh, 183 Wn.2d 578, 584, 355 P.3d 253 (2015). We review

sufficiency of evidence claims for whether, when viewing the evidence in the light most

favorable to the State, any rational trier of fact could have found the essential elements of the

charged crime beyond a reasonable doubt. State v. Homan, 181 Wn.2d 102, 105, 330 P.3d 182




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No. 50414-6-II



(2014). In a challenge to the sufficiency of the evidence, the defendant admits the truth of the

State’s evidence and all reasonable inferences that can be drawn from it. Homan, 181 Wn.2d at

106. We consider circumstantial evidence as probative as direct evidence. State v. Goodman,

150 Wn.2d 774, 781, 83 P.3d 410 (2004). We may infer specific criminal intent of the accused

from conduct that plainly indicates such intent as a matter of logical probability. Goodman, 150

Wn.2d at 781. We also “defer to the trier of fact on issues of conflicting testimony, credibility of

witnesses, and the persuasiveness of the evidence.” State v. Thomas, 150 Wn.2d 821, 874-75, 83

P.3d 970 (2004).

        RCW 9A.36.021(1)(c) provides that “[a] person is guilty of assault in the second degree

if he or she . . . [a]ssaults another with a deadly weapon.” The statute does not define “assault,”

thus, courts must resort to the common law definition. State v. Elmi, 166 Wn.2d 209, 215, 207

P.3d 439 (2009). Washington recognizes three common law definitions of assault: “(1) an

unlawful touching (actual battery); (2) an attempt with unlawful force to inflict bodily injury

upon another, tending but failing to accomplish it (attempted battery); and (3) putting another in

apprehension of harm.” Elmi, 166 Wn.2d at 215. The trial court defined assault in its instruction

to the jury:

        An assault is an act done with intent to inflict bodily injury upon another, tending
        but failing to accomplish it and accompanied with the apparent present ability to
        inflict the bodily injury if not prevented. It is not necessary that bodily injury be
        inflicted.

        An assault is also an act done with the intent to create in another apprehension and
        fear of bodily injury, and which in fact creates in another a reasonable apprehension
        and imminent fear of bodily injury even though the actor did not actually intend to
        inflict bodily injury.




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No. 50414-6-II



CP at 75.

       Roberson and the State agree that second degree assault of Walters in count 2 was based

on the intentional creation of apprehension. Roberson contends that there was insufficient

evidence that Roberson intended to create apprehension of bodily injury. He argues that because

he did not intend to make Walters fearful, and because he did not verbally threaten Walters or

use his gun to demand entry into Walters’s home, there was no evidence of intent to create

apprehension.

       But the record shows that Roberson was frantic and crying for help, and that he pointed

his gun at Walters, despite Walters’s request not to point it at him. Further, the record shows that

despite Walters asking Roberson not to shoot the gun, Roberson shot it twice. And we take all

evidence in the light most favorable to the State. A rational jury could have inferred that

Roberson screaming and pointing the gun at Walters after Walters asked him not to, coupled

with Roberson firing two “warning shots,” constituted an intent to create apprehension and fear

in Walters. Moreover, Roberson testified that he was not trying to hurt Elkhart or Walters, but

wanted someone to call the police for him, from which a rational jury could infer Roberson was

using fear of the gun to force them to call 911. Accordingly, we hold that that a rational jury

could have inferred the necessary intent from the evidence presented at trial.

C.     SENTENCING

       Roberson argues that the trial court erred by not imposing an exceptional sentence

downward. Specifically, he claims that the trial court did not exercise its discretion because it

believed that it did not have discretion to impose an exceptional sentence where the record




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No. 50414-6-II



indicated both that Roberson suffered from mental illness and was under the influence of

methamphetamines. Roberson also claims that the trial court did not consider whether an adult’s

mental illness was a mitigating factor under State v. Houston-Sconiers. We hold that the trial

court did not abuse its discretion when it refused to impose an exceptional sentence.

       A standard range sentence is generally not appealable. RCW 9.94A.585; State v. Osman,

157 Wn.2d 474, 481-82, 139 P.3d 334 (2006). However, where, as here, a defendant has

requested an exceptional sentence below the standard range, we can review the denial if the trial

court either refused to exercise its discretion, or relied on an impermissible basis for refusing to

impose an exceptional sentence. Osman, 157 Wn.2d at 482; State v. Garcia-Martinez, 88 Wn.

App. 322, 330, 944 P.2d 1104 (1997).

       RCW 9.94A.535(l)(e) authorizes an exceptional sentence below the standard range if a

preponderance of evidence shows that

       [t]he defendant’s capacity to appreciate the wrongfulness of his or her conduct, or
       to conform his or her conduct to the requirements of the law, was significantly
       impaired. Voluntary use of drugs or alcohol is excluded.

       Imposition of an exceptional sentence under RCW 9.94A.535(1)(e) is permissible only if

the record establishes that the defendant’s impairment existed independent of any voluntary use

of drugs or alcohol. See State v. Allert, 117 Wn.2d 156, 167, 815 P.2d 752 (1991). Roberson

claims the sentencing court erroneously believed that any voluntary use of drugs precluded

imposition of a mitigated exceptional sentence. But the record fails to support this claim.

       The trial court considered Dr. Muscatel’s report. Dr. Muscatel’s report stated:




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No. 50414-6-II



       [I]t is likely that methamphetamine played a very significant role in the
       incident. . . . It is likely that methamphetamine exacerbated [Roberson’s impaired
       mental health.]. . . .

       It is likely his impaired mental status, reflecting both pre-existing mental health
       impairment and chronic features of impaired mental health, as well as his use of
       methamphetamine at the time, were the likely participants of this rather bizarre
       incident.”

CP at 45. Dr. Muscatel’s report did not establish that the effect of Roberson’s mental

impairment could be separated from the effects of his voluntary drug use.

       The trial court found that to the extent that Roberson was “not capable of appreciating the

wrongfulness of [his] behavior that night, that was largely attributable to the fact that

[he] . . . had voluntarily consumed the methamphetamine.” VT at 653-54. The trial court

considered the impaired-capacity mitigating factor, but found it inapplicable based on the

evidence presented. The trial court neither refused to consider an exceptional sentence, nor

relied on an impermissible basis for declining to impose an exceptional sentence. Thus, the trial

court properly exercised its discretion and its decision declining to impose an exceptional

sentence is not reviewable.

       Roberson also argues that the trial court should have considered his mental illness as a

basis for imposing an exceptional downward sentence under State v. Houston-Sconiers, 188

Wn.2d 1. But Houston-Sconiers addresses the trial court’s discretion in sentencing a juvenile,

and is inapplicable here. 188 Wn.2d at 23, 34. Roberson was not a juvenile, and has not

provided argument or authority demonstrating that the trial court erred by not granting an

exceptional sentence based on Houston-Sconiers. Accordingly, his claim fails.

       We affirm.



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No. 50414-6-II



       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.



                                                                   Worswick, P.J.
 We concur:



 Melnick, J.




 Sutton, J.




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