                                                        COURT OF' APpFfi.' sniv
                                                         SlATEQr WASHINGTON
                                                        2013 AUG-5 AH 9=52


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

STATE OF WASHINGTON,                     )      No. 67909-1-1
                                         )
      Respondent/Cross Appellant,        )
                                         )
      v.                                 )
                                         )
PAUL DOUGLAS LOISELLE,                   )
                                         )      UNPUBLISHED OPINION
                                         )
      Appellant/Cross Respondent.        )      FILED: August 5, 2013
                                         )

      Verellen, J. — Paul Loiselle challenges his conviction by a jury for two counts of

second degree assault. He argues the State did not present sufficient evidence that he

was armed with a deadly weapon, specifically, that he used a box cutter in a manner

capable of causing death or substantial bodily harm. He also claims the prosecutor

committed misconduct by referring to the doctrine of res ipsa loquitur during closing

argument. The State cross appeals the trial court's dismissal of the deadly weapon

enhancements on both counts. We affirm Loiselle's convictions and remand for

imposition of the deadly weapon enhancements.

                                         FACTS

       On December 14, 2010, Rory Tripp, Randy Nickell and Corey Flynn were at the

Yen Wor Garden restaurant and bar in Seattle celebrating Tripp's birthday. Paul Loiselle

was also at the bar with a separate group of friends celebrating his own birthday. At
No. 67909-1-1/2


approximately 1:30 a.m., bar staff announced that it was closing time. For reasons not

clear from the record, Flynn and Loiselle exchanged heated words.

       As Tripp, Nickell and Flynn left the bar, Loiselle grabbed a pool cue from a rack

near the door and followed them out. One of the bar's employees took the pool cue

away from Loiselle and returned it to the bar. Loiselle then lunged at Flynn. Perry

Southerland, a regular customer at the bar, saw what he believed to be a grocery store

box cutter in Loiselle's left hand. Nickell stepped between Loiselle and Flynn and hit

Loiselle. Loiselle swung at Nickell, hitting him in the neck. The force of the blow

knocked Nickell backwards onto the ground. Tripp attempted to intervene in the

altercation and Loiselle swung at Tripp. Loiselle then went back inside the bar.

Nickell's throat had a deep gash that was bleeding heavily. Tripp had a smaller

laceration on his neck that was bleeding, and his T-shirt and sweatshirt had also been

cut. Both Nickell and Tripp were transported to the hospital. Loiselle was arrested.

The arresting officer noticed that Loiselle had dried blood on the thumb and index finger

of his left hand.1

       Dr. Amit Bhrany, a head and neck surgeon, evaluated Nickell's wound to

determine the extent of the injury. According to Dr. Bhrany, Nickell's injury was

consistent with being caused by a sharp object wielded with "a fair amount offorce."2
The injury resulted in lacerations to the platysma muscle, anterior jugular vein and strap

muscles, as well as a superficial cut to the thyroid cartilage and a small tear to the

pharynx. Surgeons cauterized Nickell's jugular vein to stop the bleeding and stitched




       1 Loiselle is left-handed.
       2Report of Proceedings (RP) (Aug. 1, 2011) at 43.
No. 67909-1-1/3


both the interior muscles and the skin. Nickell was out of work for approximately six

weeks. The box cutter was never recovered.


       The State charged Loiselle with two counts of second degree assault with a

deadly weapon. At trial, the trial court instructed the jury on the special verdict forms as

follows:

               You will also be given special verdict forms for the crimes charged
       in Counts I and II. If you find the defendant not guilty of these crimes, do
       not use the special verdict forms. If you find the defendant guilty of either
       Assault in the Second Degree or Assault in the Third Degree in either
       Count I or Count II, you will then use the special verdict form for that count
       and fill in the blank with the answer "yes" or "no" according to the decision
       you reach. Because this is a criminal case, all twelve of you must agree in
       order to answer the special verdict form. In order to answer the special
       verdict form "yes", you must unanimously be satisfied beyond a
       reasonable doubt that "yes" is the correct answer. If you unanimously
       have a reasonable doubt as to this question, you must answer"no."[ ]
The trial court also instructed the jury on the State's burden of proving all elements of

the crimes charged beyond a reasonable doubt.

       A jury convicted Loiselle on both charges. The jury also returned deadly weapon

special verdicts on both counts.

       At sentencing, Loiselle moved to strike the deadly weapon enhancements,

arguing that pursuant to State v. Bashaw.4 the trial court erred in instructing the jury it
must be unanimous to answer "no." The sentencing court struck the enhancements.

                                       DISCUSSION

                                Sufficiency of the Evidence

       When reviewing a claim of insufficient evidence, this court must decide "whether,

after viewing the evidence in the light most favorable to the prosecution, any rational


       3Clerk's Papers at 121.
       4 169 Wn.2d 133, 234 P.3d 195 (2010).

                                              3
No. 67909-1-1/4


trier of fact could have found the essential elements of the crime beyond a reasonable

doubt."5 In challenging the sufficiency ofevidence, the defendant admits the truth of the
State's evidence and all inferences that reasonably can be drawn from it.6 Credibility
determinations are reserved for the trier of fact; thus, we defer to the jury on issues of

conflicting testimony, witness credibility, and persuasiveness of the evidence.7

       For the purposes of a special verdict, a deadly weapon is "an implement or

instrument which has the capacity to inflict death and from the manner in which it is

used, is likely to produce or may easily and readily produce death."8 "Relevant to this
determination are the defendant's intent and present ability, the degree of force used,

the part of the body to which the weapon was applied and the injuries inflicted."9

       Citing In re Personal Restraint of Martinez10 and State v. Skenandore.11 Loiselle

argues the State failed to prove the box cutter was used in a manner likely to produce

death. Both these cases are inapposite. In Martinez, a conviction for first degree

burglary, the defendant was armed with a knife sheath but there was no evidence that

he used or planned to use a knife in the commission of the crime.12 In Skenandore, an

       5State v. Ortiz. 119Wn.2d294, 311-12, 831 P.2d 1060 (1992) (internal quotation
marks omitted) (quoting State v. Bingham. 105 Wn.2d 820, 823, 719 P.2d 109 (1986)).
      6State v. Spruell. 57 Wn. App. 383, 385, 788 P.2d 21 (1990).
      7State v. Walton. 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
      8 RCW 9.94A.825. Weapons that constitute deadly weapons as a matter of law
include "any knife having a blade longer than three inches" and "any razor with an
unguarded blade." jd. The State concedes that it was unable to prove the box cutter
was a deadly weapon as a matter of law.
       9State v. Zumwalt. 79 Wn. App. 124, 130, 901 P.2d 319(1995), overruled in part
on other grounds bv State v. Bisson. 156 Wn.2d 507, 130 P.3d 820 (2006).
       10 171 Wn.2d 354, 256 P.3d 277 (2011).
       11 99 Wn. App. 494, 994 P.2d 291 (2000).
       12 Martinez. 171 Wn.2d at 368-69.
No. 67909-1-1/5


inmate attempted to stab a corrections officer through a cell window with a homemade

spear fashioned from rolled paper bound with dental floss and attached to a golf

pencil.13 The speardid not tear the officer's clothing or skin but left pencil marks on his
chest and sleeve.14 Though the State argued that the pencil could have caused
substantial bodily harm had the defendant struck the officer in the face or eye, there

was no evidence to support this claim, nor was there evidence that the defendant could

have hit the officer's face or eye through the window.15

       Here, it was reasonable for the jury to infer that the manner in which the box

cutter was used had the capacity to cause death. Loiselle cut both Nickell and Tripp on

the neck, causing laceration and bleeding. Dr. Bhrany testified that the laceration of

even a small blood vessel in the neck could cause death. The evidence in the light

most favorable to the State proved that the box cutter constituted a deadly weapon.

                                 Unanimity Requirement

      The State argues the sentencing court erred when it struck the sentencing

enhancements based on Bashaw. We agree. The Washington Supreme Court recently

overruled Bashaw and expressly upheld an instruction identical to the one given here.16
                                Prosecutorial Misconduct


       Loiselle contends the prosecutor committed misconduct by referring to res ipsa

loquitur during closing argument and rebuttal:




      13 Skenandore, 99 Wn. App. at 496.
      14 JU at 497.
      15 JU at 500.
      16 State v. Nunez. 174 Wn.2d 707, 710, 285 P.3d 21 (2012).
No. 67909-1-1/6


       [Tjhere is a concept that's usually expressed in Latin, a legal doctrine or a
       concept, and I'm not going to use the Latin, but the concept is that the
       thing speaks for itself... . It's res ipsa loquitur. It's an old legal doctrine
       that the thin[g] speaks for itself. In malpractice cases, if somebody is
       opened up after a surgery and they find a sponge inside that person,
       obviously, the doctor has committed malpractice, somebody screwed up.
       The thing speaks for itself. Res ipsa loquitur. That's this case.

               The injuries in this case speak for themselves. They're speaking to
       you. The evidence in this case is overwhelming. The defendant
       escalated the situation far beyond necessity and he used an instrument to
       cut intentionally the throat of Randy and he intentionally used an
       instrument, a blade, to cut Rory. He's the only one that can do it. Res
       ipsa loquitur. It speaks for itself and it's speaking to you in a straight line[.]
       [A]nd this and all the other evidence leads to the defendant who put
       himself in that chair by continuing to escalate, and today that straight line
       leads to his conviction. He is guilty of the crimes of assault in the second
       degree in Count I and Count II. Thank you.



               . . . There's absolutely no indication whatsoever there was anything
       sharp on that tree or that somehow . . . these injuries came from this
       tree[.] [A]nd the key thing, ladies and gentlemen, ... is that there's
       absolutely ... no other explanation for how Rory received his injuryf.] [I]f
       you take a look at. . . State's Exhibit No. 4, that shows you right there that
       with his left hand, it's almost like a perfect like a slash like that, almost
       straight in line, the shirt up that way, cut, cut, cut, all the way through. Res
       ipsa. Take a look at 28. Do you see anything sharp on that tree? The
       evidence in this case is overwhelming, ladies and gentlemen. The
       defendant cut, cut, and substantially wounded and assaulted both men
       with a deadly weapon, the manner in which it was used.[17]
Loiselle did not object to the deputy prosecutor's statements.

       "[T]he doctrine of res ipsa loquitur provides an inference of negligence from the

occurrence itself which establishes a prima facie case sufficient to present a question

for the jury."18 Loiselle argues that the reference to res ipsa loquitur effectively relieved

the State of its burden of proof.


       17 RP (Aug. 3, 2011) at 44-45, 63-64.
       18 Metro. Mortg. & Sec. Co.. Inc. v. Washington Water Power. 37 Wn. App. 241,
243, 679 P.2d 943 (1984).
No. 67909-1-1/7


       To prevail on a claim of prosecutorial misconduct, a defendant must show both

improper conduct and prejudicial effect.19 Prejudice occurs only if "there is a substantial
likelihood the instances of misconduct affected the jury's verdict."20 Afailure to object
waives any claim of error unless the comments were so flagrant and ill-intentioned that

no instruction could have cured the resulting prejudice.21 Defense counsel's failure to
object strongly suggests the argument in question does not appear prejudicial in the

context ofthe trial.22 We review misconduct claims in the context ofthe total argument,
the evidence addressed, the issues in the case, and the jury instructions.23
       Although the common sense concept that a person's action speaks for itself is

not improper, the introduction of legal terminology from civil tort law is not well

considered. However, viewed in context, it is clear the deputy prosecutor was arguing

only that Nickell and Flynn's neck wounds were evidence that they had been stabbed

with something sharp, and the only evidence of a sharp object was Loiselle's box cutter.

The deputy prosecutor relied solely on the literal meaning of res ipsa loquitur and did

not suggest that the concept affected the State's burden of proof. The trial court

properly instructed the jury that the State had the burden of proving all elements of the

offense beyond a reasonable doubt. In light of these facts, Loiselle fails to establish that

the deputy prosecutor's statements constituted misconduct.




       19 State v. Roberts. 142 Wn.2d 471, 533, 14 P.3d 717 (2000).
       20 State v. Pirtle. 127 Wn.2d 628, 672, 904 P.2d 245 (1995).
       21 State v. Stenson. 132 Wn.2d 668, 719, 940 P.2d 1239 (1997).
       22 State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006).
       23 State v. Boehning. 127 Wn. App. 511, 519, 111 P.3d 899 (2005).
No. 67909-1-1/8


                             Statement of Additional Grounds

       In his statement of additional grounds, Loiselle argues that the trial court erred

by: (1) admitting into evidence a small key-shaped knife that was not used in the crime;

(2) allowing a law enforcement officer to testify regarding the knife; (3) instructing the

jury on the careful handling of the knife; and (4) denying a defense motion to dismiss.

       A few days after the stabbing, the owner of the Yen Wor Garden contacted the

Seattle Police Department, reporting that a weapon had been found on the property.

Officer Paul Gingrey responded and retrieved a small, key-shaped knife with a folding

blade. At trial, Officer Gingrey testified that the knife appeared to have dried blood on it,

and that he received an e-mail "saying there might be blood on there, from the evidence

section."24 The trial court admitted the exhibit. The jury was instructed to try to use
gloves if handling the exhibit in the jury room due to the presence of blood.

       At the conclusion of Officer Gingrey's testimony, defense counsel moved to

dismiss, claiming that he had never received a copy of the e-mail in discovery. The

State had also never seen the e-mail. To address the issue of blood on the knife, the

State recalled Detective Paul Takemoto, who testified that he had not ordered it to be

tested. Detective Takemoto stated he did not believe it was the weapon used in the

case because the blade was too short and would have produced "more of a puncture

wound."25 Following Detective Takemoto's testimony, defense counsel agreed, stating,
"I think that whatwe did with the detective seemed pretty curative."26 The trial court
denied the motion to dismiss, stating:


       24RP(Aug. 2, 2011) at 53.
       25 JU at 85.
       26 Id. at 87.

                                              8
No. 67909-1-1/9


       [T]he motion is denied. We don't really have the document that Officer
       Gingrey thinks he received[.] [B]ut most significantly[,] that information
       was never passed on to anybody who was in a position to follow it up or
       disclose it to defense counsel. So the prosecutor assigned the case, the
       detective assigned the case, never had information that someone
       suspected there was blood on [the key-shaped knife]. Someone put...
       biohazard tape on the exhibit, but that information apparently just wasn't
       passed up the chain so that anyone could do anything with it, so I've
       denied the motion.'271

       The admissibility of evidence rests within the sound discretion of the trial court,

and this court will not disturb the trial court's decision unless no reasonable person

would adopt the trial court's view.28 While the purpose ofadmitting a weapon that all
parties agreed was not used in the crime is somewhat unclear, we cannot say it was an

abuse of the trial court's discretion. Moreover, even if the admission of evidence was

error, it "requires reversal only if the error, within reasonable probability, materially

affected the outcome of the trial."29 Detective Takemoto emphasized that the key-

shaped knife was not the weapon used to stab Nickell and Tripp. Neither the State nor

defense mentioned it in closing argument. We cannot say there was a reasonable

probability that the verdict was affected by this evidence.

       Nor are we persuaded that the trial court's statement to the jury was prejudicial to

Loiselle. The trial court emphasized several times the importance of wearing gloves

when handling any physical exhibit that might have blood on it. These instructions were
offered for the safety of the parties and the jury and were not unduly prejudicial.

       Loiselle argues that the failure ofthe trial court to exclude the key-shaped knife
or instruct the jury to disregard Officer Gingrey's testimony "left the [djefense with no


       27 JU at 88.
       28 State v. Atsbeha, 142 Wn.2d 904, 913-14, 16 P.3d 626 (2001).
       29 State v. Halstien. 122 Wn.2d 109, 127, 857 P.2d 270 (1993).
No. 67909-1-1/10


relief other than his motion to dismiss.30 But Loiselle's motion to dismiss was on the

basis of an alleged Brady31 violation. The trial court found no Brady violation because
there was not a reasonable probability that disclosure of the evidence would have

changed the outcome. Moreover, Loiselle conceded below that Detective Takemoto's

testimony was sufficiently curative. The trial court did not err in denying Loiselle's

motion to dismiss.


       Loiselle's conviction is affirmed. We remand for resentencing with imposition of

the deadly weapon enhancement.




WE CONCUR:




       30 Statement of Additional Grounds at 3.
       31 Bradv v. Maryland. 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L Ed. 2d 215 (1963).

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