                                                                                          SLED
                                                                                COURT OF APPEALS
                                                                                      DIVISION 1

                                                                             201 Ii AUG - 5    AM 10: 39
                                                                                STATE OF WAS111E4JGTCN

                                                                                BY
                                                                                              UTY




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                DIVISION II

STATE OF WASHINGTON,                                                         No. 44192 -6 -II


                                    Respondent,


        v.



BILLIE JO CROSS,                                                       UNPUBLISHED OPINION


                                    Appellant.


        HUNT, J. —   Billie Jo Cross appeals her jury trial conviction for third degree assault of a

law   enforcement   officer.     She   argues   that ( 1)   the to convict jury instruction omitted essential

elements     of one of   the   charged alternative means, (      2) the trial court erred in failing to give a

unanimity - -to -
          as     means instruction, ( 3) her counsel provided ineffective assistance, and ( 4) the




State engaged in prosecutorial misconduct during closing argument. We affirm.

                                                       FACTS


                                                 I. THE ASSAULT


        On April 30, 2012, Kitsap County Deputy Sheriff Eric Adams drove his marked patrol

car to Billie Jo Cross' s residence to serve some civil court papers on her husband and to arrest

him for two outstanding         arrest warrants.     When Cross      answered   the   door, Adams, in   uniform,
No. 44192 -6 -II



told her that he was there to serve her husband with some paperwork that he ( Adams) had to give

to her husband in       person.        After calling for her husband and getting no response, Cross told

Adams that her husband was not there and that he ( Adams) should return the next day.

         The next day, Adams and Kitsap County Deputy Sheriff Steven Argyle returned, again in

uniform and      driving    marked patrol cars.             Adams again told Cross that he was there to serve


papers on     her husband.       After showing Cross the papers, Adams asked her to step outside onto

the   deck.   Cross " yelled" into the house that the deputy had paperwork concerning child support

and then told Adams that she and her husband had been " afraid that [ Adams] was there to arrest


 her husband]      on   a   warrant."        Report    of   Proceedings ( RP) ( Oct. 30, 2012)               at   28.   Adams


responded that he did not know what she was talking about.

         When Cross' s husband came to the door, Adams served him with the paperwork and then


told him that he    needed       to   come outside onto        the deck.     When it appeared that he was not going

to comply, Adams reached out to grab him and Cross' s husband " slammed" the door on Adams'

hand.    RP ( Oct. 30, 2012)          at   31.   Adams      attempted     to "   breach the door by kicking it in" and

shouldering the door        while     shouting, "' You      are under arrest. "'     RP ( Oct. 30, 2012) at 31.


         At this   point,   Cross     said, "'   You lied to   me, "' "   jumped    on [   Adams'] back and grabbed her


arms around [    his]   neck,"    and attempted to pull Adams back from the door. RP ( Oct. 30, 2012) at


31, 33. Argyle pulled Cross off Adams, and Adams managed to enter the home. Argyle arrested


Cross.    As Argyle         walked     her to his     patrol    car,   she   stated, "[    S] he had   no   other   choice   but
No. 44192 -6 -II


                                                                                                                                     1
to do   what she    did because the               male   that   she   had just tried to      protect was      her husband. "             RP


 Oct. 30, 2012) at 58.


                                                           II. PROCEDURE


         The State charged Cross with third degree assault, alleging three means of committing

this crime:



                   On or about May 1, 2012, in the County of Kitsap, State of Washington,
         the   above -named           Defendant, ( 1) with intent to prevent or resist the execution of

         any lawful process or mandate of any court officer or the lawful°apprehension or
         detention of himself or herself or another person, did assault another; and /or ( 2)
         did assault a law enforcement officer or other employee of a law enforcement
         agency who was performing his or her official duties at the time of the assault;
         and/ or ( 3)   ...     did   assault a peace officer with a projectile stun                     gun; to   wit:   ERIC
         L. ADAMS.


Clerk' s Papers ( CP) at 1.


                                                         A. Trial Testimony

         Adams and Argyle testified as described above. The State presented no other witnesses.


          Cross testified that when Adams arrived at her home the second time, he was in uniform


and she   knew he        was    there   for   some official reason.                 Adams told her that he was there to serve


papers on      her husband, but         she started      to " wonder[       ] ...    what was going on" when Adams put the

papers in      his back       pocket as      her husband        came       to the door.     RP ( Oct. 30, 3012)           at   64.   Cross


stated that as Adams reached for her husband, she attempted to grab Adams' elbow to tell him to


stop because there were dogs inside the residence, but she " caught his vest" instead and did not

    really know   what [ she]         did"   at   that   point.   RP ( Oct. 30, 2012)         at   67.    She was also concerned




1
    The deputies did not find Cross' s husband.




                                                                       3
No. 44192 -6 -1I



that Adams      was "    punching holes in the door"    and   that he   might shoot   her dogs.   RP ( Oct. 30,


2012) at 67.


                                               B. Jury Instructions

          The trial court gave the jury a definitional instruction, number 6, which included two

means of committing third degree assault ( assault of officer to resist/prevent arrest or while

performing official duties):

                   A person commits the crime of assault in the third degree when he or she
          assaults another with intent to prevent or resist the execution of any lawful
          process or mandate of any court officer or the lawful apprehension or detention of
          himself, herself, or another person, or assaults a law enforcement officer or other
           employee of a law enforcement agency who was performing his or her official
           duties at the time of the assault.


CP at 48 ( Jury Instruction 6).

           The to convict instruction, number 7, however, referred to only one of those means

 assault of law enforcement officer performing official duties):

                   To convict the defendant of the crime of assault in the third degree, each
           of the following elements of the crime must be proved beyond a reasonable doubt:
                    1)    That on or about May 1, 2012, the defendant assaulted Eric
           Adams;
                    2)       That at the time of the assault Eric Adams was .a law enforcement
           officer or other employee of a law enforcement agency who was performing his
           or her official duties; and
                    3)       That any of these acts occurred in the State of Washington.

CP   at   50 ( Jury Instruction 7).     Cross did not object to either instruction. Nor did she request an


additional unanimity -as -to -means instruction or submission of special verdicts to the jury.

                                              C. Closing Arguments

           The State' s closing arguments focused on whether Cross had assaulted Officer Adams.

The State     mentioned     two   of   the charged means: (   1) assault with intent to prevent or resist the




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No. 44192 -6 -II



lawful    apprehension            or   detention    of    Cross'   s    husband,       and (   2) assault of a law enforcement


officer who was         performing his           official   duties       at   the time    of   the   assault.    Much of the State' s


argument focused on Cross' s surprise by Adams' ruse and his attempt to enter the residence,

which did not give her authority to assault Adams or otherwise to interfere with his efforts to
                             2
arrest   her husband.            Cross did not object to any of the State' s arguments.

          Cross' s counsel' s argument focused almost exclusively on the assault with intent to

prevent or     to   resist   the   arrest of    her husband.           Specifically, he argued that Cross had not intended

to "   try and stop the process of the officer going about the course of his business with her

husband."      RP ( Oct. 30, 2012) at 83.


          The jury found Cross guilty of third degree assault. Cross appeals.

                                                             ANALYSIS


                                                     I. JURY INSTRUCTIONS


          For the first time           on appeal,    Cross       challenges      the   jury    instructions     on   two   grounds.       She


argues that ( 1) by referring to only a single charged means, the to convict instruction omitted

essential elements of the crime; and ( 2) the trial court erred in failing to give an additional

unanimity -as -to -means instruction sua sponte.3 These arguments fail.




2 We describe the relevant portions of this argument in more detail below.
3
    Cross   asserts    that      she can raise     these issues for the first time                   on appeal under          the "   manifest

constitutional error"             exception     to the   preservation requirement.               See RAP 2. 5(       a) ( "   The appellate
court    may   refuse   to       review   any   claim of error which was not raised                   in the trial   court." (    Emphasis
added.)     And the State does not argue that we cannot reach these issues because Cross failed to
object   below. Therefore,             we address        these   issues   without      further RAP 2. 5(        a) analysis.
No. 44192 -6 -II



                                          A. No Omission of Essential Elements


             Cross first argues that the to convict jury instruction, jury instruction 7, omitted essential

elements of the charged crime because it omitted the elements of one of the two alternative


means that the State discussed in closing argument and that were mentioned in the definitional

instruction,      jury     instruction 6.     She contends that the to convict instruction' s omission of the


elements of intent to prevent or to resist apprehension or detention means likely confused the

jury   in light   of (1)     the   information,   which contained all       three   means and was read      to the   jury; (2)

jury    instruction 6, which defined both an assault of a law enforcement officer who was


performing his           official    duties   and   an    assault   with intent to prevent or to resist the lawful

apprehension or detention of another person; and ( 3) the closing arguments, during which the

parties mentioned both means that jury instruction 6 described. We disagree.

             Criminal defendants have          a right    to   a unanimous   jury verdict.    WASH. CONST.      art.   I, § 21.


 In certain situations, the right to a unanimous jury trial also includes the right to express jury

unanimity       on   the   means     by   which   the defendant is found to have         committed   the   crime."     State v.


       Martinez, 124 Wn.2d 702, 707, 881 P. 2d 231 ( 1994) ( emphasis
Ortega -                                                                                         omitted).    But "[ i]f the .


instructions given and the jury' s verdict plainly show the jury must have been unanimous as to

the alternative means [ that] was supported by sufficient evidence, this court may conclude the

erroneous       instruction did       not affect    the   outcome, and     the   error was   harmless."    State v. Martin,


69 Wn.        App.   686, 689, 849 P. 2d 1289 ( 1993) (             citing State v. Bonds, 98 Wn.2d 1, 18, 653 P.2d

1024 ( 1982),        cert.   denied, 464 U. S. 831 ( 1983)).            Here, the alleged error was harmless because


 1)    the   parties   argued      only two    alternative means         in closing; (   2) instruction 6 listed only two

alternative means; (          3) the to convict instruction required that in order to find Cross guilty, the



                                                                    6
No. 44192 -6 -II



jury   to    be   unanimous          that    Cross had             committed      the   assault    by      a   single   means;     and (   4)


accordingly, jury confusion was highly unlikely.

            Cross    relies    on    Martin.             But this     case is     easily distinguished from Martin.                       The


definitional instruction at issue in Martin went beyond describing the alternative means of

committing the offense; it stated,

                      A person commits the crime of Driving While Under the Influence of
            Liquor   when      he or   she   drives          a motor vehicle while       he    or she: (   1) Has 0. 10 grams
            or more of alcohol per two hundred ten liters of breath as shown by accurate
            analysis of his or her breath, or 0. 10 percent more by weight of alcohol in his
            blood or her blood as shown by analysis of his or her blood; or ( 2) is under the
            influence of or affected by intoxicating liquor. The above are alternate means of
            committing the single crime charged. Your determination of the defendant 's guilt
            or innocence may be based upon finding number ( 1) or finding number ( 2).  These
            are alternative findings, and each of you may individually arrive at your own
            determination of the defendant' s guilt or innocence based on either alternate
            method. Jury unanimity as to mode of commission is not required."

Martin, 69 Wn.         App.     at   688    n.   1(    citation omitted).      The to convict instruction, however, referred


to only     one of    the two means.                  Martin, 69 Wn.       App.   at    689.    Division Three of this court held


that the     last three   sentences         of        the definitional instruction "       could     have      confused     the   jury"   and




held that the error was not harmless. Martin, 69 Wn. App. at 689.

            Here, in contrast, jury instruction 6 did not contain the same language the Martin court

held    could     have .confused the             jury: Instruction 6 did not tell the jury that it could find Cross

guilty   under      any   of   these means              or   that it did   not   have to be       unanimous        as   to the "   mode    of



commission."          The to convict instruction was clear and offered the jury only a single option; and
                                                                                                                        4
other    jury     instructions       advised          the   jury   that its verdict had to be           unanimous.          Although the




4
    Instruction 9    provided        in   part, "      Because this is a criminal case, each of you must agree for you
to   return a verdict."        CP at 53 ( Jury Instruction 9).



                                                                           7
No. 44192 -6 -II



parties also mentioned the two means during closing arguments, the trial court clearly instructed

the jury that the jury instructions contained the relevant law and that it was to disregard any

argument        that   was   inconsistent   with   the   court' s   jury   instructions.   Given the clear to convict


instruction and the absence of the additional language that was at issue in Martin, we hold that


the instructions and the verdict here " plainly show the jury must have been unanimous as to the

alternative means [ that] was supported by sufficient evidence" and that any potential errors in the

to convict instruction and closing arguments were harmless. Martin, 69 Wn. App. at 689.

        Furthermore, we agree with the State that this case is more similar to State v. O' Donnell,


142 Wn.         App.   314, 174 P. 3d 1205 ( 2007).          O' Donnell argued that the trial court' s to convict


instructions for the first degree robbery charge and its lesser included offense of second degree

robbery omitted an essential element of the charged crime because they required the jury to find

only that he took personal property from the person of another and did not include the alternative

means      of   taking   the property " in     a victim' s     presence."        O' Donnell, 142 Wn. App. at 324.

Division Three of our court held that omission of this alternate means did not amount to


omission of an essential element of            the   crime.     The    same situation exists    here:   The to convict


instruction merely omitted one of the means, not an element of the charge.

                               B. No Unanimity - -To -Means Instruction Required
                                               As

           Cross further argues that she was prejudiced by the trial court' s failure to give the jury an

additional instruction that it had to be unanimous as to the means of committing third degree

assault.    Because the to convict instruction contained only one means, instructing the jury that it

had to be unanimous as to the means would only have created confusion, as was the case in




                                                                8
No. 44192 -6 -II


Martin.       Thus, it was not error for the trial court not to instruct the jury sua sponte that it had to
                                                                            5
be   unanimous as         to the   means of   committing the     offense.




                                        II. EFFECTIVE ASSISTANCE OF COUNSEL


          Cross next argues that her trial counsel provided ineffective assistance by ( 1) presenting a

defense and a closing argument that focused solely on the alternative means that was not the

focus of the State' s case or presented in the to convict instruction, and ( 2) failing to present

argument related to the means that was the focus of the State' s , argument and the to convict


instruction.6 Again, we disagree.

          To prevail on her ineffective assistance of counsel claim, Cross must show both deficient


performance         and    resulting   prejudice;   failure to   show either    prong defeats   such claim.   State v.


McNeal, 145 Wn.2d 352, 362, 37 P. 3d 280 ( 2002). Here, because Cross fails to show prejudice;


we do not address the deficient performance prong of the test.

             Cross argues that her trial counsel' s performance was deficient because he focused the


defense and his closing argument on whether Cross had committed assault by assaulting Adams

with intent to prevent or to resist the lawful apprehension or detention of her husband, despite the


State' s focus being on the assault of an officer while performing his official duties alternative

5 Furthermore, even if the trial court had erred in not providing an additional unanimity- as -to-
means     instruction, Cross'        s argument would     fail. Failure to provide such an instruction does not
require reversal if the State presented sufficient evidence to support each alternative means.
State   Sweany, 174 Wn.2d 909, 914, 281 P. 3d 305 ( 2012). Here,
        v.                                                                            the State presented sufficient
evidence to support both means described by jury instruction 6.
6
    To the extent Cross' s argument could be construed as asserting that there is other evidence that
her trial counsel failed to present, we do not address this argument because it relates to matters
outside       the   record.    State    v.   Grier, 171   Wn.2d 17, 29, 246 P. 3d 1260 ( 2011) ( " When an
ineffective assistance claim is raised on appeal, the reviewing court may consider only facts .
within the record. "), adhered to in part on remand, 168 Wn. App. 635, 278 P. 3d 225 ( 2012).




                                                                 9
No. 44192 -6 -II



means.        Assuming, without deciding, that this approach was improper and, thus, deficient

performance,         Cross does         not establish prejudice.         Given the evidence, there was little defense


counsel      could   argue     about      the   assault of an officer while           performing his        official   duties:    The


evidence was uncontroverted that Adams was performing his official duties and that Cross

assaulted      him   by jumping          on   his back,    an   intentional   act.    By focusing on Cross' s intent at the

time    of   the   assault (   i. e.,   that Cross was not intending to assault Adams, but was intending to

protect      her husband),          defense counsel was making the best argument available under the

evidence;       Cross does          not    show        that this   approach     prejudiced          her.   Accordingly,     Cross' s


ineffective assistance argument fails.


                                                III. PROSECUTORIAL MISCONDUCT


          Finally, Cross argues that the State engaged in prosecutorial misconduct during its

closing argument and improperly appealed to the jury' s passion and prejudice by ( 1) suggesting

that the jury should hold Cross accountable for her actions in order to protect the community,

and (   2)    inviting   the jurors to            put    themselves   in Cross'       s   and /or    Adams'   positions.         These


arguments also fail.


                                                        A. Standard of Review


             A defendant claiming prosecutorial misconduct bears- the burden of proving that the

prosecutor' s conduct was both improper and prejudicial in the context of the entire record and

the   circumstances at         trial.     State   v.   Magers, 164 Wn.2d 174, 191, 189 P. 3d 126 ( 2008); State v.


Weber, 159 Wn.2d 252, 270, 149 P. 3d 646 ( 2006),                             cert.   denied, 551 U. S. 1137 ( 2007).             And


where, as here, the defendant did not object to the prosecutor' s allegedly improper comment at

trial, she waives a prosecutorial misconduct claim raised for the first time on appeal unless she




                                                                    10
No. 44192 -6 -II



can establish that the comment " was so flagrant [ and] ill-intentioned that an instruction could not

have    cured      the   prejudice."           State   v.   Corbett, 158 Wn.             App. 576, 594,      242 P. 3d 52 ( 2010) ( citing


State   v.   Russell, 125 Wn. 2d 24, 86, 882 P. 2d 747 ( 1994), cert. denied, 514 U. S. 1129 ( 1995)).


Cross' s prosecutorial misconduct claim fails.


             A prosecutor has wide latitude in closing arguments to draw reasonable inferences from

the facts in       evidence and            to   express such       inferences to the             jury. State v. Gregory, 158 Wn.2d

759, 860, 147 P. 3d 1201 ( 2006); State v.! Dhaliwal, 150 Wn.2d 559, 577, 79 P. 3d 432 ( 2003).


We      review      any allegedly improper closing                          argument          statements "   within the context of the


prosecutor' s entire argument, the issues in the case, the evidence discussed in the argument, and


the   jury    instructions."           Dhaliwal, 150 Wn. 2d                     at   578.    A prosecutor' s improper comments are


prejudicial "       only where ` there is a substantial likelihood the misconduct affected the jury' s

verdict. "'        State       v.   McKenzie, 157 Wn.2d 44, 52, 134 P. 3d 221 ( 2006) (                               emphasis   omitted)




 quoting State           v.   Brown, 132 Wn.2d 529, 561, 940 P. 2d 546 ( 1997), cert. denied, 523 U.S. 1007


 1998)).       Cross does not demonstrate such prejudice here.


                                    B. Accountability and Community Protection Argument

             Cross first argues that the State committed misconduct when it argued that the jury

should       hold her         accountable       for her     actions    in   order       to   protect   the community.   Specifically, she

challenges the italicized portions of the following closing argument:

                         Ms. Cross may                otherwise    be       a    very    nice   person.      She may have been
             surprised        being    awakened         that early in the morning.                She never anticipated maybe

             that her husband was going to be arrested, but that does not entitle her to grab at,
             choke, and try and pull away a deputy sheriff performing his job. The community

             has   said we          have   a    law    about   that.    It' s        called assault     in the third degree.   The
             state has given you the evidence to prove that the law has been violated, and we
             ask you to hold her accountable as we would any other citizen who breaks these
             rules.




                                                                                11
No. 44192 -6 -1I




RP ( Oct. 30, 2012) at 79 -80 ( emphasis added).

         Cross misconstrues the State' s argument as telling the jurors that they must hold her

accountable in order to protect the community or that they had a duty to convict and that an

acquittal would violate              their oath as jurors.            Taken in context, the State' s argument suggested


merely that Cross' s unlawful behavior was not excusable, even if it did not reflect her general

nature and was attributable to her reaction to an unusually stressful event. But even if the State' s

argument suggested to the jury that it had a duty to protect the community by holding Cross

accountable for her behavior, these brief comments could have been addressed by a timely

objection and a curative             instruction.        Thus, this argument fails.


                                                  C. Subjective Belief Argument


         Cross next argues that the State committed prosecutorial misconduct by encouraging the

jurors to   put   themselves in Cross'              s and     Adams' "          shoes."    Br.   of   Appellant   at   22.   She contends


that the State ( 1)      attempted           to   ask   the   jury   to "`      substitute its subjective belief about how any

juror   would      have       responded'          rather      than    considering the             evidence    objectively,"       and (   2)


  encourage[      d] the   jury      to   make    its decision       personal. "'         Br. of Appellant at 22 ( quoting State v.



7 In support of this argument, Cross also cites State v. Ramos, 164 Wn. App. 327, 263 P.3d 1268
 2011); State      v.   Bautista -
                                 Caldera, 56 Wn.         App. 186, 195, 783 P. 2d 116 ( 1989), review denied,
114 Wn.2d 1011 ( 1990);                  and two New Jersey cases, State v. Neal, 361 N.J. Super. 522, 826 A.2d
723 ( 2003),      and   State       v.   Hawk, 327 N.J. Super. 276, 283, 743 A. 2d 325 ( 2000).                               All of these
cases   involved closing            arguments       that   were      far   more     blatant   appeals     to "` send a message to the

community'        or ` call    to   arms' ...      intend[ ed] to promote a sense of partisanship with the jury that
is incompatible         with   the       jury' s function"     than    were present          here. Neal, 361 N.J. Super. at 537.
Cross   also cites      State   v.       Coleman, 74 Wn.  App. 835, 838, 876 P. 2d 458 ( 1994), review denied,
125 Wn.2d 1017 ( 1995),                    in which the State argued that the jury would have to ignore the
evidence    in   order   to    acquit      the defendant       and    that this      would violate       the jurors'    oaths.   Coleman
is inapposite because the objectionable argument there did not in any way resemble the argument
Cross now challenges.



                                                                           12
No. 44192 -6 -II



Walker, 164 Wn.       App.     724, 736, 265 P. 3d 191 ( 2011), remandedfor reconsideration, 164 Wn.2d


724 ( 2012)).    More specifically, Cross challenges the following italicized portions of the State' s

argument:




                 Notice one thing that the officers never did, either one of them in this
         procedure. Neither one of them pulled a gun. I suppose they could have come up
         to the door,    pulled a gun, pointed and said, "                      We know Minor Cross is in there.
         Get him      out."     When Minor Cross slammed the door in Deputy Adams' face,
         injured his hand, the     deputy didn' t pull out a gun and say, " You are hurting me,
         you are     assaulting   me.    I    am       going to    respond even greater."         He didn' t do that.
         When they hauled the defendant off Deputy Adams' back, Deputy Argyle didn' t
         pull out a gun and point            it   at   her.   It was violent, yes, but it was violence within
         the bounds that they are authorized to do in trying to effect an arrest. Ifyou think
         you can do a better job, then join up, but as the court has instructed you, when
         police officers are performing their duty, you can stand there and complain, you
         can call them names, you can write letters to their bosses or letters to the editor,
         you can go down to your legislature and try and get laws changed, but you do not
         get to physically assault and attack a police officer, because down that path leads
         disaster.


RP ( Oct. 30, 2012)     at    76 -77 ( emphasis          added).    This challenge also fails.


         We acknowledge that in the above italicized portion of its closing argument, the State

may have been suggesting that the jurors should consider their personal beliefs in evaluating

Adams' actions; nevertheless, we disagree with Cross' s characterization of the argument as a


whole.    This italicized portion of the State' s argument appears to have been an attempt to rebut


Cross'   s apparent    defense —that her               actions   were reasonable       in light   of   the                 by
                                                                                                             circumstances —




emphasizing that although the situation was unpleasant, Adams had a right to arrest Cross' s

husband    and   that his     actions   did       not   justify    Cross'   s   illegal behavior.      Taken as a whole, this


argument did not amount to asking the jurors to use their personal standards to determine

whether Cross' s behavior was excusable.




                                                                    13
No. 44192 -6 -II



        Even assuming, without deciding, that this argument was improper, in light of the strong

evidence   in this   case,      any potential prejudice could have been cured by a timely proper

instruction. But Cross neither objected nor requested a curative instruction; and she fails to meet

the resultant higher standard of showing that the argument was so flagrant and ill intentioned that

a timely instruction would not have cured the error. Accordingly, this argument also fails.

        We affirm.


        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.




We concur:




                                                    14
