       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                      )
                                          )       No. 77022-5-1
                     Respondent,          )
                                          )       DIVISION ONE
              v.                          )
                                          )
HENRY LEE JACKSON IV,                     )       UNPUBLISHED OPINION
                                          )
                     Appellant.           )       FILED: December 10, 2018
                                          )
       SMITH, J. — Henry Lee Jackson IV appeals his convictions for domestic

violence felony violation of a no-contact order, first degree criminal

impersonation, resisting arrest, and escape from community custody. He

contends the prosecutor committed reversible misconduct by eliciting improper

testimony from a witness and that defense counsel was ineffective for failing to

object to that and other improper testimony. He also contends there was

insufficient evidence to support his conviction for criminal impersonation because

there was no evidence that he committed an act using an assumed identity. We

conclude prosecutorial misconduct could have been cured by an instruction to

the jury, the failure to object to the improper testimony could be characterized as

a legitimate trial tactic, Jackson cannot show prejudice, and cumulative error did

not deprive him of a fair trial. Viewing the evidence in the light most favorable to

the State, there is sufficient evidence to support the jury finding that Jackson
 No. 77022-5-1/2

assumed his brother's identity and then committed acts to avoid detection of his

true identity and arrest. We affirm.

                                        FACTS

         On February 15, 2017, C.C. called 911 because she could hear a man,

later identified as Henry Lee Jackson IV, yelling at a woman. While on the phone

with a 911 operator, C.C. saw Jackson hit the woman, pull the woman's hair, and

choke the woman at a nearby bus stop. C.C. narrated the events to the 911

operator as they were happening.

         When police officers arrived, Jackson identified himself as his brother,

William Jackson, and gave the officers his brother's name, birthdate, and

address. The victim identified Jackson to the police as Anthony Jackson. When

the officers decided to arrest Jackson based on C.C.'s eye witness account of

the assault, Jackson became uncooperative and had to be physically restrained

and taken into custody. During a search at the Whatcom County Jail, officers

found Jackson's identification card and learned his true identity. Officers then

discovered that there was a no-contact order between Jackson and the victim.

        The State charged Jackson by amended information with domestic

violence felony violation of a no-contact order, first degree criminal

impersonation, resisting arrest, and escape from community custody. The

escape from community custody charge was bifurcated from the other charges

for trial.

        At the trial for the first three charges, both C.C. and her husband testified.

Additionally, the trial court admitted two of C.C.'s 911 calls into evidence. The



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No. 77022-5-1/3

officers who responded to the scene also testified, and the trial court allowed the

State to play selected recordings from the officers' body cameras at the trial. The

jury found Jackson guilty on all three charges. Jackson was also found guilty of

escape from community custody by a second jury. The trial court sentenced

Jackson on all counts. Jackson appeals.

                        PROSECUTORIAL MISCONDUCT
       Jackson argues the prosecutor committed reversible misconduct by

eliciting irrelevant and inflammatory testimony from C.C. about her reaction to the

assault. But because defense counsel did not object, and the error could have

been cured by an instruction to the jury, we disagree.

      "To prevail on a claim of prosecutorial misconduct, the defendant must

establish 'that the prosecutor's conduct was both improper and prejudicial in the

context of the entire record and the circumstances at trial." State v. Thorgerson,

172 Wn.2d 438, 442, 258 P.3d 43(2011)(quoting State v. Maqers, 164 Wn.2d

174, 191, 189 P.3d 126 (2008)). "If the defendant did not object at trial, the

defendant is deemed to have waived any error, unless the prosecutor's

misconduct was so flagrant and ill intentioned that an instruction could not have

cured the resulting prejudice." State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d

653(2012)(citing State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997)).

"Under this heightened standard, the defendant must show that(1)'no curative

instruction would have obviated any prejudicial effect on the jury' and (2) the

misconduct resulted in prejudice that'had a substantial likelihood of affecting the

jury verdict." Emery, 174 Wn.2d at 761 (quoting Thomerson, 172 Wn.2d at 455).



                                         3
No. 77022-5-1/4

       Evidence is relevant when it has "any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable

or less probable." ER 401. Relevant evidence is admissible unless a rule of law

prohibits its admission. ER 402. ER 403 prohibits the trial court from admitting

relevant evidence "if its probative value is substantially outweighed by the danger

of unfair prejudice." Unfair prejudice is prejudice that is more likely to arouse an

emotional response than a rational decision from the jury and that suggests a

decision on an improper basis. State v. Cronin, 142 Wn.2d 568, 584, 14 P.3d

752(2000). A trial is not fair when irrelevant and inflammatory matter, which has

a natural tendency to prejudice the jury against the accused, is introduced. State

v. Miles, 73 Wn.2d 67, 70, 436 P.2d 198 (1968).

       Here, the prosecutor asked C.C. about her reaction to the assault:

       Q.    How did it, how did you react to this? How did it make you
             feel?
      A.     Oh, it was traumatizing for me to see it happen. It was, I
             cried for that woman all night long. It's just, it's not okay to
             hurt people. It's just not okay, and it, it was hard to watch. It
             was hard to witness from beginning to end, including the
             officers and everything that happened at the very end when
             he was being arrested. It was very traumatizing.[1]

Defense counsel did not object.

      The prosecutor's question and C.C.'s response were not relevant to

Jackson's guilt or to any element of the charged crimes. Furthermore, the

response was unfairly prejudicial in that it likely aroused an emotional response

by the jury. But asking the improper question did not rise to the level of conduct




      1 Report of Proceedings(RP)(May 2, 2017) at 24.
                                         4
 No. 77022-5-1/5

that the courts have previously held to be so flagrant and ill intentioned that it

could not have been cured by an instruction. See e.o., State v. Be!garde, 110

Wn.2d 504, 755 P.2d 174(1988)(reversible error where prosecutor stated that

defendant was associated with an organization of madmen who kill

indiscriminately); State v. Monday, 171 Wn.2d 667, 257 P.3d 551 (2011)

(reversible error where prosecutor imputed an "antisnitch" code to black

witnesses only); In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 702, 286

P.3d 673(2012)(plurality opinion)(reversible error where prosecutor altered

defendant's booking photograph with the addition of phrases such as "'GUILTY"

superimposed three times in an "X" shape over defendant's face in red letters);

State v. Walker, 182 Wn.2d 463, 341 P.3d 976(2015)(reversible error where the

prosecutor presented Microsoft PowerPoint slides showing admitted exhibits

altered with inflammatory text that expressed a personal opinion on defendant's

guilt). Likewise, any prejudice resulting from C.C.'s response to the prosecutor's

improper question could have been cured by an instruction to the jury to

disregard C.C.'s response. Therefore, reversal is not warranted

                   INEFFECTIVE ASSISTANCE OF COUNSEL

       Jackson argues that he received ineffective assistance of counsel

because defense counsel failed to object to C.C.'s testimony about both her

reaction to the assault and the victim's demeanor. We disagree.
      A criminal defendant has the right to effective assistance of counsel under

the Sixth Amendment to the United States Constitution and article I, section 22

(amend. X) of the Washington State Constitution. State v. Hendrickson, 129


                                         5
No. 77022-5-1/6

Wn.2d 61, 77, 917 P.2d 563(1996). "To prove that failure to object rendered

counsel ineffective, [a defendant] must show that not objecting fell below

prevailing professional norms, that the proposed objection would likely have been

sustained, and that the result of the trial would have been different if the evidence

had not been admitted." In re Pers. Restraint of Davis, 152 Wn.2d 647, 714, 101

P.3d 1 (2004)(citing State v. Townsend, 142 Wn.2d 838, 847, 15 P.3d 145

(2001); State v. McFarland, 127 Wn.2d 322, 337 n.4, 899 P.2d 1251 (1995);

Hendrickson, 129 Wn.2d at 80)(footnotes omitted). "The decision of when or

whether to object is a classic example of trial tactics." State v. Madison, 53 Wn.

App. 754, 763, 770 P.2d 662(1989). For example, trial counsel may decide not

to object to avoid emphasizing the objectionable testimony. Davis, 152 Wn.2d at

714. "Only in egregious circumstances, on testimony central to the State's case,

will the failure to object constitute incompetence of counsel justifying reversal."

Madison, 53 Wn. App. at 763.

       Here, Jackson argues that defense counsel was ineffective by failing to

object to C.C.'s testimony about the victim's demeanor. C.C. testified that the

victim "seemed so empty and just so sad and like somebody who has been

through this a time or two before."2 A witness may only testify in terms that

include inferences or conclusions based on personal knowledge. ER 701; State

v. Wiqlev, 5 Wn. App. 465, 468, 488 P.2d 766 (1971). C.C.'s statement that the

victim looked like someone who had been through this before was speculative

and therefore improper. It was also prejudicial because it implied that the victim



      2   RP at 35.
                                         6
No. 77022-5-1/7

had been the victim of past domestic violence. ER 404(b) bars the admission of

evidence of a prior bad act "'for the purpose of proving a person's character and

showing that the person acted in conformity with that character." State v.

Gunderson, 181 Wn.2d 916, 922, 337 P.3d 1090 (2014)(quoting State v.

Gresham, 173 Wn.2d 405, 420, 269 P.3d 207 (2012)). To guard against the high

risk of unfair prejudice in domestic violence cases, courts confine the

admissibility of prior acts of domestic violence to cases where the State has

established their overriding probative value. Id. at 925. And, as discussed,

C.C.'s testimony about her own reaction to the assault was irrelevant and

prejudicial. Nevertheless, Jackson cannot show the failure to object was not a

strategic decision or that the outcome of the trial would have been different had

defense counsel objected.

       Defense counsel's decision not to object to this testimony can be

characterized as a legitimate trial strategy. C.C. testified about the victim's

demeanor right after the jury heard the second 911 call from C.C. During these

calls, C.C. described the abuse that she witnessed as it was happening. An

objection to C.C.'s testimony could have emphasized the content of those calls.

Similarly, defense counsel may not have wanted to emphasize C.C.'s emotional

response to the assault by objecting to her testimony.

       Jackson also cannot demonstrate that there is a reasonable probability

that the result of the trial would have been different had defense counsel

objected. There was overwhelming evidence of Jackson's guilt, including the

content of the 911 calls and the testimony from C.C., her husband, and the


                                         7
No. 77022-5-1/8

responding officers. Therefore, Jackson fails to demonstrate ineffective

assistance of counsel.

                                CUMULATIVE ERROR

       Jackson argues that the cumulative effect of C.C.'s improper testimony

about her own emotional reaction and the victim's demeanor resulted in an unfair

trial. We disagree.

       The cumulative error doctrine applies when several trial errors occur that

"standing alone may not be sufficient to justify reversal but when combined may

deny a defendant a fair trial." State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390

(2000). It does not apply where the errors are few and have little or no effect on

the outcome of the trial. Id.

       As described above, C.C.'s testimony about her reaction to the assault

and the victim's demeanor was improper. But it is unlikely that the improper

testimony, even combined, denied Jackson a fair trial. The evidence of

Jackson's guilt was overwhelming, and it is unlikely that these errors had any

effect on the outcome of the trial. Therefore, reversal is not appropriate.

                       SUFFICIENCY OF THE EVIDENCE

       Jackson contends insufficient evidence supports his conviction for first

degree criminal impersonation under RCW 9A.60.040(1)(a). He argues that the

State only proved he verbally assumed a false identity, but not that he committed

an "act" in his assumed character, as required by that statute. We disagree.

       In determining the sufficiency of the evidence, we view the evidence in the

light most favorable to the State and determine whether any rational trier of fact



                                         8
No. 77022-5-1/9

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

doubt. State v. Townsend, 147 Wn.2d 666, 679, 57 P.3d 255 (2002). A

challenge to the sufficiency of the evidence admits the truth of the evidence.

State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)(citing State v.

Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff'd, 95 Wn.2d 385,622 P.2d

1240 (1980)). Further, "all reasonable inferences from the evidence must be

drawn in favor of the State and interpreted most strongly against the defendant."

Id. (citing State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977),

overruled on other groundsty State v. Lyons, 174 Wn.2d 354, 275 P.3d 314

(2012)).

       Statutory interpretation is a matter of law that we review de novo.

Jametsky v. Olsen, 179 Wn.2d 756, 761, 317 P.3d 1003 (2014). The primary

goal of statutory interpretation is to determine and give effect to the legislature's

intent. Id. at 762. To determine legislative intent, we first look to the plain

language of the statute. Id. "We may use a dictionary to discern the plain

meaning of an undefined statutory term." Nissen v. Pierce County, 183 Wn.2d

863, 881, 357 P.3d 45 (2015).

       Under RCW 9A.60.040(1)(a), a person is guilty of criminal impersonation

in the first degree if the person "[a]ssumes a false identity and does an act in his

or her assumed character with intent to defraud another or for any other unlawful

purpose." That statute does not define the term "act." The dictionary defines

"act" as "a thing done or being done: DEED, PERFORMANCE" and "an external




                                          9
No. 77022-5-Ill0

manifestation of the will : something done by a person pursuant to his volition."

WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 20 (2002).

       Here, sufficient evidence supports the jury conviction of criminal

impersonation. Officer Aspessi, one of the responding officers, testified that

when he first arrived on the scene, Jackson and the victim were sitting at the bus

stop. He testified that he took Jackson aside and began questioning him. The

court also allowed the State to play several recordings from Officer Aspessi's

body camera showing part of his interaction with Jackson. In one recording,

Jackson tells Officer Aspessi that he has been dating the victim for about six

months. When asked if he has any identification, Jackson responds that he does

not. Officer Aspessi then asks Jackson for his name. Jackson responds,"'Uhl"

and Officer Aspessi says,"What's your real name?"3 Jackson then says his

name is William, and Officer Aspessi says, "William what? Why—do you have

warrants out? Is that why you were kind of hesitating?"4 Jackson then gives the

officer his brother's full name, birthdate, and address.5 Officer Aspessi later

informed Jackson that he was under arrest for domestic violence assault

because a witness saw him assault the victim at the bus stop. In another body

camera recording, Jackson argues with Officer Aspessi saying, "I'm not going"

and "No, you said I checked out. I was cool, right?"6 Officer Aspessi also

testified that when he told Jackson he was under arrest, Jackson "went from a




      3 RP at 132.
      4 RP at 132.
      5 RP at 132-33.
      6 RP at 137.

                                         10
No. 77022-5-1/11

seated position and leaped up onto the bench in the bus stop, and in so many

words said that he wasn't going to go with us."7 Officer Jeremy Woodward, the

other responding officer, testified that 40 or 45 minutes elapsed from the officers'

initial contact with Jackson until they discovered his true identity. And during that

time, Jackson continued to portray himself as his brother and did not correct the

officers' misconception as to his actual identity.

       Jackson argues that none of the evidence demonstrates he performed an

"act" in his assumed identity under RCW 9A.60.040. But viewing the evidence in

the light most favorable to the State, the evidence described above is sufficient

for a jury to conclude that Jackson performed an act in his assumed identity.

Specifically, Jackson assumed his brother's identity by giving police his brother's

name so the officers would not discover that there was a no-contact order

between him and the victim and arrest him for violation of that order or for

domestic violence assault. After he told the officers that his name was William,

Jackson did, pursuant to his volition, several things in his assumed character to

mislead the officers and avoid arrest. For example, he gave the officers his

brother's birthdate and address, he insisted that he had "checked out" when the

officers told him he was under arrest, and he physically jumped up on a bench in

response to the arrest. These external manifestations of his will to avoid arrest

while representing to the police that he was his brother constituted sufficient

evidence for the jury to find that Jackson performed an "act" in his assumed

character. Accordingly, the conviction must be affirmed.



      7 RP   at 136.
                                         11
No. 77022-5-1/12

       Jackson contends that State v. Williamson, 84 Wn. App. 37, 924 P.2d 960

(1996), requires his conviction be reversed. That case involved a former version

of the obstructing-a-police-officer statute. The relevant section of that statute

made it unlawful for a person to "'[w]illfully hinder[], delay[], or obstruct[] any law

enforcement officer." Id. at 44 (quoting former RCW 9A.76.020(LAWS OF 1994,

ch. 196,§ 1)). Courts had concluded that the legislature intended this section of

the statute to criminalize conduct, not false and misleading statements. Id. at 43

(citing State v. Hoffman, 35 Wn. App. 13, 16, 664 P.2d 1259 (1983); State v.

Swaite, 33 Wn. App. 477, 483, 656 P.2d 520 (1982)).8 In Williamson, the

defendant verbally told police officers his name was "'Christopher Columbus,"

and there was no evidence of conduct by the defendant outside of this false

statement. Id. at 44-45. Accordingly, the Court of Appeals held that the State

had failed to prove an offense under the relevant section of the obstructing-a-

police-officer statute. Id. at 45.

       Jackson asserts that like the defendant in Williamson, he engaged solely

in speech, not conduct, and thus his conviction must be reversed under

Williamson. But Williamson is distinguishable for two reasons. First, although

the defendant in Williamson made it difficult for the police to identify him,

requiring the police to do so through his fingerprints, he did not pretend to be

Christopher Columbus. Id. at 40. By contrast, Jackson misled the police by

assuming the identity of his brother and acting as if he was his brother to avoid



       8 False and misleading statements were criminalized under a different
section of the statute but were invalidated because they were unconstitutionally
vague. Williamson, 84 Wn. App. at 43.
                                          12
No. 77022-5-1/13

arrest for domestic violence assault. Second, and more importantly, Williamson

is distinguishable because there is no indication that the legislature intended the

"act" required in the criminal impersonation statute to exclude false statements,

as there was under the former obstructing-a-police-officer statute. Because there

was sufficient evidence that Jackson performed at least one "act" in his assumed

identity, his conviction must stand.

       We affirm.




WE CONCUR:
                                               (MI/




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