                                                                         FILED 

                                                                       June 3, 2014 

                                                              In the Office of the Clerk of Court 

                                                            W A State Cou rt of Appeals, Division III 





      COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON 


STATE OF WASHINGTON,                         )        No.   30764-6-111
                                             )
                    Respondent,              )
                                             )
             v.                              )        ORDER GRANTING MOTION
                                             )        FOR RECONSIDERATION
STEVEN M. SWINFORD,                          )        AND WITHDRAWING OPINION
                                             )        FILED MARCH 18,2014
                    Appellant.               )

      THE COURT has considered appellant's motion for reconsideration, and is of the

opinion the motion should be granted. Therefore,

       IT IS ORDERED, the motion for reconsideration of this court's decision of March

18,2014 is hereby granted.

       IT IS FURTHER ORDERED, the court's opinion filed March 18,2014 is hereby

withdrawn and a new opinion will be filed this day.

       DATED: June 3, 2014.

      PANEL: Judges Siddoway, Brown, Fearing.

       FOR THE COURT:



                                             LAUREL H. SIDDOWAY,
                                                                               FILED

                                                                           June 3, 2014
                                                                  In the Office of the Clerk of Court 

                                                                WA State Court of Appeals, Division III 




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )
                     Respondent,              )         No. 30764-6-III
                                              )
       v.                                     )
                                              )
STEVEN M. SWINFORD,                           )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       SIDDOWAY, C.J. -     Steven Swinford was convicted of second degree murder for

the shooting death of his friend after the jury rejected his claim of self-defense. He

appeals, arguing that the prosecutor committed misconduct by referring to Mr. Swinford

owing a "duty of care" to the victim and that the trial court erred in denying him a new

trial on that account. He also challenges the trial court's order that he undertake

substance abuse evaluation and treatment as a condition of community custody and, in a

statement of additional grounds, raises several additional issues.

       After the conclusion of the usual briefing, Mr. Swinford moved for leave to raise

an additional issue, contending that the procedure by which the parties exercised

peremptory challenges to potential jurors had violated his right to a public trial. We

granted his motion and address that supplemental issue as well.
No.30764-6-III
State v. Swinford


       The prosecutor's reference to a "duty of care" strayed from the language of the

legal elements and from the court's instructions. But the gist of his argument was that

Mr. Swinford's actions were not "reasonable" conduct qualifying as self-defense. If

improper, the argument was not ill intentioned and, if prejudicial, could have been cured

by a timely objection and instruction. The trial court did not err in denying a new trial.

       Mr. Swinford correctly argues that the court's order requiring substance abuse

treatment was not supported by a necessary finding that he has a chemical dependency

that contributed to his offense. But since evidence from the record could support such a

finding and the sentencing court appears to have viewed alcohol abuse as contributing to

the offense, the appropriate remedy is to remand so that the trial court can determine

whether to strike the condition or make the required finding.

       Mr. Swinford's challenge to the peremptory challenge procedure followed in the

trial court fails in light of State v. Love, 176 Wn. App. 911, 309 P.3d 1209, petition/or

review filed, No. 89619-4 (Wash. Dec. 9, 2013), in which we held that neither prong of

the experience and logic test suggests that the exercise of peremptory challenges must

take place in public. The issues raised in the statement of additional grounds are without

merit. We therefore affirm the conviction and remand for the limited purpose of

addressing the inadequate support for the community custody condition.

                     FACTS AND PROCEDURAL BACKGROUND

       After a day oftarget shooting, Mr. Swinford, his roommate Jessy Juarez, and their

                                             2

No. 30764-6-111
State v. Swinford


friend Paul Raney returned to the home where Mr. Swinford lived with Mr. Juarez and

Steven Flick. There, Mr. Swinford, Mr. Raney, and Mr. Flick watched a movie, drank

mixed drinks, and played drinking games, while Mr. Juarez went upstairs to bed.

Eventually, Mr. Swinford and Mr. Raney began arguing over a portable media player on

which the three had been playing music and whose battery was depleted. Specifically,

they debated whether to plug the media player into the stereo and continue listening to

music, or to plug it into a game console to be recharged. Mr. Flick would later testify

that both Mr. Raney and Mr. Swinford liked to be right and that they would often quarrel

over such matters.

       At some point in the argument, Mr. Swinford turned off the game console in order

to move the media player to the stereo. Mr. Raney then leaned forward in the chair in

which he was sitting, reaching for the remote control for the game console in order to

turn it back on. At the same time, he told Mr. Swinford to "[s]top being a fucking

badass" all the time. Report of Proceedings (RP) at 281, 266. Mr. Swinford then shot

Mr. Raney seven times, using a .45 caliber gun that had been left lying on the coffee

table. Mr. Raney sustained gunshots to his chest, abdomen, pelvis, right arm, and left

hand. A bullet that went through his heart and the spinal cord proved fatal.

      After the shooting, Mr. Swinford and Mr. Flick called 911. The dispatcher told




                                             3

No. 30764-6-III
State v. Swinford


Mr. Flick to move Mr. Raney to the floor and start CPR.l Mr. Juarez, a volunteer

firefighter who had been trained in emergency medicine, had by that time come

downstairs, awakened by the gunshots. He checked for Mr. Raney's pul~e several times

but could not find it and quickly concluded that he was dead.

       Mr. Swinford was charged with second degree murder and defended on the basis

that he shot Mr. Raney in self-defense. He testified that as Mr. Raney angrily made his

"badass" comment, Mr. Swinford saw Mr. Raney's hand wrap around the grip of a pistol

that was tucked in his chair. Fearing that he was going to be shot and with only a split

second to make a decision, Mr. Swinford claimed he reached for a pistol on the coffee

table, closed his eyes, and shot. Detectives who searched the living room following the

shooting observed a .40 caliber pistol tucked between the right armrest and seat cushion

of the chair Mr. Raney had been sitting in.

       Mr. Flick, the only witness to the shooting other than Mr. Swinford, testified at

trial that just before the shooting, Mr. Raney was leaning forward, apparently to reach the

controller for the video game console. He testified that Mr. Raney was not acting angry

at the time he called Mr. Swinford a "badass," that he did not raise the tone of his voice,

and that "[h]e was just talking at [Mr. Swinford]." RP at 281. Anticipating further

bickering between the two, Mr. Flick turned away to pick up and drink from a glass of

beer when he heard a cocking noise, followed by shots. After the shooting, Mr. Flick

       1   Cardiopulmonary resuscitation.

                                              4

No. 30764-6-111
State v. Swinford


heard Mr. Swinford tell the 911 operator that "he had shot his friend and that he was

going away for a long time." RP at 270.

         Mr. Juarez also testified that as they attempted to treat Mr. Raney following the

shooting, Mr. Swinford told him that he did not know why he shot Mr. Raney, and was

going to jail.

         Mr. Swinford's first trial ended in a mistrial after the jury was unable to reach a

verdict. In the trial below, a second jury rejected his theory of self-defense and found

him guilty as charged. Mr. Swinford moved for a new trial, claiming that the prosecutor

committed misconduct by misstating the law during closing argument. The motion was

denied. Mr. Swinford was sentenced to 22 years' imprisonment and 36 months of

community custody, with a condition to the community custody being that he undergo an

evaluation for treatment for substance abuse. He appeals.

                                          ANALYSIS

         Mr. Swinford makes three assignments of error on appeal: first, that prosecutorial

misconduct denied him a fair trial; second, that the trial court erred in denying his motion

for a new trial based on the alleged misconduct; and third, that the trial court erred in

ordering him to participate in a substance abuse evaluation and undergo treatment as a

condition of community custody. Supplementally, he contends that the procedure

followed for exercising peremptory challenges to potential jurors violated his public trial

right.

                                                5

No.30764-6-III
State v. Swinford


       We first address the two assignments related to the alleged prosecutorial

misconduct and then tum to the community custody condition and the public trial issue.

                               1. Prosecutorial Misconduct

      At issue as alleged misconduct are the italicized statements made by the

prosecutor during a portion of closing argument:

              But Instruction Number 17 is in his defense, it says, it's a defense to
      the murder or manslaughter if the homicide was justifiable. And you need
      to determine this. The State has the burden to prove it wasn't justifiable.
      But there's three different parts to that and the third part, it says, the slayer
      employed such force and means as a reasonably prudent person would use
      under the same or similar circumstances--or conditions as they reasonably
      appeared to the slayer, taking into consideration all facts and circumstances
      as they appeared to him at the time of and prior to the incident. Certainly,
      he owes a duty ofcare to his best friend inside this house. And when he
      pulls the trigger, he ignores that. The State only has to disprove one of
      those three.

RP at 599 (emphasis added). Mr. Swinford contends that the harm of the argument was

aggravated because the prosecutor had earlier referred to a "duty of care" when

questioning him, asking ifhe had "us[ed] care" before shooting Raney. Id. at 558. The

prosecutor also asked, "You didn't owe your friend a duty of care?" to which Mr.

Swinford responded, "I don't know." Id. at 572. No objection was made in the trial

court to the argument or questioning about a duty of care.

      An appellant bears the burden of demonstrating prosecutorial misconduct on

appeal. He or she must demonstrate that the prosecutor's conduct was both improper and

prejudicial. State v. Stenson, 132 Wn.2d 668, 718-19, 940 P.2d 1239 (1997). To

                                              6

No. 30764-6-111
State v. SWinford


demonstrate prejudice one must show that there is a substantial likelihood the

prosecutorial misconduct affected the jury's verdict. State v. Ish, 170 Wn.2d 189,200,

241 P.3d 389 (2010).

       Where, as here, a defendant fails to object in the trial court to a prosecutor's

statements, he waives his right to raise a challenge on appeal unless the remark was so

flagrant and ill intentioned that it evinced an enduring and resulting prejudice that could

not have been neutralized by an admonition to the jury. Stenson, 132 Wn.2d at 719.

Under this stringent standard of review 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.'"

State v. Emery, 174 Wn.2d 741, 761,278 P.3d 653 (2012) (quoting State v. Thorgerson,

172 Wn.2d 438,455,258 P.3d 43 (2011)).

       Mr. Swinford argues that in the context of a criminal case there is no "duty of

care." Rather, a duty of care is relevant in the context of a civil claim for negligence,

where the existence ofa duty owed and a breach of that duty are elements of the cause of

action. Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 127-28,875 P.2d

621 (1994). He contends that in suggesting to the jury that Mr. Swinford owed a "duty of

care"-which is not an element to be proved in a criminal trial-the prosecutor misstated

the law.




                                              7

No. 30764-6-III
State v. Swinford


       The proper standard for a jury to find Mr. Swinford not guilty by reason of self-

defense was set forth in the court's jury instructions, which provided in relevant part:

                Homicide is justifiable when committed in the lawful defense of the
       slayer or any person in the slayer's presence or company when:
           1. 	 the slayer reasonably believed that the person slain intended to
                inflict death or great personal injury;
          2. 	 the slayer reasonably believed that there was imminent danger of
                such harm being accomplished; and
           3. 	 the slayer employed such force and means as a reasonably prudent
                person would use under the same or similar conditions as they
                reasonably appeared to the slayer, taking into consideration all the
                facts and circumstances as they appeared to him at the time of and
                prior to the incident.

Clerk's Papers (CP) at 27.

       A prosecutor's argument must be confined to the law stated in the trial court's

instructions. State v. Estill, 80 Wn.2d 196, 199,492 P.2d 1037 (1972). A prosecutor's

misstatement of the law can be a serious irregularity having the grave potential to mislead

the jury. See State v. Davenport, 100 Wn.2d 757, 763, 675 P.2d 1213 (1984) (in which a

prosecutor, in rebuttal, argued that a defendant could be found guilty as an accomplice,

where accomplice liability was not before the jury). A prosecutor's remarks during

closing argument are reviewed in the context of the total argument, the issues in the case,

the evidence addressed in the argument, and the jury instructions. State v. Dhaliwal, 150

Wn.2d 559,578, 79 P.3d 432 (2003).

       The prosecutor's reference to a duty of care strayed from the language ofthe legal

elements and the jury instructions. Nonetheless, the prosecutor was clearly entitled to

                                             8

No. 30764-6-111
State v. Swinford


argue that Mr. Swinford could not claim self-defense if he did not reasonably apprehend

felonious intent and imminent danger and did not use force and means that were

reasonable under the circumstances. The jury was required, then, to determine whether

Mr. Swinford's conduct was "reasonable." To say that the defendant must have acted

reasonably is to ascribe some duty of care.

       The Washington Supreme Court stated in State v. Griffith, 91 Wn.2d 572, 575, 589

P .2d 799 (1979) that the defense of excusable homicide was unavailable to a defendant

who, "even ifhe could be said to have been acting lawfully, failed to exercise ordinary

caution in the discharge of a firearm." Relying on Griffith, the State's proposed jury

instructions in the trial below included a proposed instruction that "[t]he exercise of

ordinary caution is essential to a claim of excusable homicide." CP at 106. The trial

court questioned the need to give the instruction, asking the prosecutor, "[W]hy ... is

that not really covered under the pattern instruction which requires the slayer to

reasonably believe and to use such force and means as a reasonably prudent person would

use[?]" RP at 585. The prosecutor agreed that it was. It withdrew its proposed

instruction based on Griffith.

       While straying from the verbiage of the instructions, then, the prosecutor evidently

believed, and the trial court had agreed, that a duty of ordinary care was implicit in Mr.

Swinford's obligation to act reasonably. Mr. Swinford fails to explain why that was

wrong, or at least misleading as argued to the jury. Even if there is a problem that Mr.

                                              9

No. 30764-6-111
State v. Swinford


Swinford fails to explain to us, the argument cannot be said to have been inherently

flagrant and ill intentioned or as causing incurable prejudice. Contrary to Mr. Swinford's

assertion that a reference to a duty of care improperly shifted the burden of proof, the

prosecutor was clear that the State bore the burden of proof, telling the jury that "[t]he

State has the burden to prove it wasn't justifiable." RP at 599. At worst (and again, Mr.

Swinford fails to demonstrate impropriety), the prosecutor characterized the State's

burden as proving that Mr. Swinford failed to "satisfY a duty of care" rather than proving

that he failed to act "reasonably."

       Finally, the trial court's instructions to the jury set forth the standard of conduct

required for self-defense and the jury was instructed to "[d]isregard any remark,

statement or argument that is not supported by the ... law as stated by the court." CP at

45. We presume that the jury follows the court's instructions. Stenson, 132 Wn.2d at

729-30.

       It is questionable whether the prosecutor's statements were improper and Mr.

Swinford fails to demonstrate prejudice. It is clear that the statements were not ill

intentioned and that any conceivable prejudice could have been addressed by a curative

instruction. Because Mr. Swinford fails to demonstrate misconduct requiring a new trial,

the trial court did not err in refusing to order one.

                             II. Community Custody Condition

       Mr. Swinford next argues that the trial court exceeded its statutory authority by

                                               10 

No. 30764-6-111
State v. Swinford


ordering him to "undergo an evaluation for treatment for ... substance abuse" as a

condition for community custody when no finding was entered by the court to support

this requirement. CP at 111. A trial court lacks the authority to impose a community

custody condition unless authorized by the legislature. State v. Kolesnik, 146 Wn. App.

790, 806, 192 P.3d 937 (2008). An unlawful sentence may be challenged for the first

time on appeal. State v. Ford, 137 Wn.2d 472, 477,973 P.2d 452 (1999).

       RCW 9.94A.607(1) provides that "[w]here the court finds that the offender has a

chemical dependency that has contributed to his or her offense" it may order the offender

to "participate in rehabilitative programs or otherwise to perform affirmative conduct

reasonably related to the circumstances of the crime for which the offender has been

convicted and reasonably necessary or beneficial to the offender and the community in

rehabilitating the offender." "If the court fails to make the required finding, it lacks

statutory authority to impose the condition." State v. Warnock, 174 Wn. App. 608, 612,

299 P.3d 1173 (2013).

       The parties disagree as to the proper remedy for the court's failure to enter the

required finding. Mr. Swinford asks that we order the trial court to strike the condition.

The State asks that we remand for the court to either make the required finding or strike

the condition, pointing out that the court commented during sentencing that alcohol

contributed to the offense, even though it then failed to make the required finding. Under

these circumstances, the appropriate remedy is to remand with the direction that the

                                              11 

No. 30764-6-111
State v. Swinford


evaluation and treatment condition be stricken unless the court determines that it can

presently and lawfully comply with the statutory requirement for a finding that Mr.

Swinford has a chemical dependency that contributed to his offense. See State v. Jones,

118 Wn. App. 199,212 n.33, 76 P.3d 258 (2003).

                                  III. Right to Public Trial

       Finally, Mr. Swinford contends that the court violated his Washington

Constitution article I, section 22 public trial rights by having the parties exercise their

peremptory challenges privately. Specifically, following voir dire the court announced

that the parties would exercise their peremptory challenges on a jury selection document

that would be passed back and forth between the lawyers. No objection was made to the

procedure. The report of proceedings includes a record of which jurors were challenged

by each party but that information was not announced contemporaneously in open court.

       At the end of the challenge process, the jurors who were excused by peremptory

challenges were asked to leave the jury box and were replaced by other jurors. The trial

court then asked the parties' lawyers if the jury as constituted conformed with their

records and both answered that it did.

       Whether or not a particular portion of a proceeding is required to be held in public

is determined by use of the "experience and logic" test. State v. Sublett, 176 Wn.2d 58,

72-73,292 P.3d 715 (2012). This court applied the "experience and logic" test to the

exercise of peremptory challenges in Love, 176 Wn. App. at 920, a decision published

                                              12 

No. 30764-6-111
State v. Swinford


after Mr. Swinford's briefing of this issue, and concluded that "[n]either prong of the

experience and logic test suggests that the exercise of ... peremptory challenges must

take place in public." The procedure for exercising peremptory challenges in Love was

identical in all material respects to the procedure followed here. For the reasons

explained in Love, the exercise of peremptory challenges is not required to take place in

public. Mr. Swinford's right to a public trial was not violated.

                       STATEMENT OF ADDITIONAL GROUNDS

       In a pro se statement of additional grounds (SAG), Mr. Swinford raises four. We

address them in tum.

       Prosecutorial Misconduct. Mr. Swinford raises several instances of alleged

prosecutorial misconduct apart from the prosecutor's references to a duty of care. He

claims the prosecutor made several statements during closing argument that were not

supported by the evidence. He points, first, to the prosecutor's having characterized Mr.

Raney as asking, "'[W]hy do you have to be a badass[?]''' which the prosecutor

suggested were not fighting words, allegedly "diminish[ing] the threat Mr. Swinford

faced." SAG at 13. He complains, second, of the prosecutor's argument that Mr. Flick

saw Mr. Swinford pick up the .45 with which he shot Mr. Raney; third, that the

prosecutor argued that Mr. Raney's hands were up prior to being shot by Mr. Swinford;

fourth, that the prosecutor argued that Mr. Flick could have heard Mr. Swinford

"[r]acking a round" as opposed to what Mr. Flick had described as a "cocking" noise,

                                             13 

No. 30764-6-111
State v. Swinford


SAG at 14; and fifth, that the prosecutor argued that Mr. Swinford only called 911

because Mr. Flick was dialing 911 himself. He also complains that it was misconduct for

the prosecutor to argue, "'[T]his is a case where a person (Mr. Swinford) shoots first and

asks for you to excuse him later.'" SAG at 20. While Mr. Swinford objected in the trial

court to two of these matters-the prosecutor's argument that Mr. Flick saw Mr.

Swinford pick up the .45 and his argument that Mr. Raney's hands were up when he was

shot-those objections were overruled by the court, which characterized the prosecutor's

statements as argument.

       It is prosecutorial misconduct for the State to refer to evidence outside the record.

State v. Fisher, 165 Wn.2d 727, 747,202 P.3d 937 (2009). Here, however, Mr. Swinford

is complaining of the prosecutor's characterization of testimony the jury had heard.

Where there is conflicting evidence, lawyers for the State and the defense can be

expected to legitimately disagree over which evidence should be given the greatest

weight by the jury and the inferences that may reasonably be drawn from the evidence.

In closing argument, the prosecutor has wide latitude in making arguments to the jury and

drawing reasonable inferences from admitted evidence. State v. Anderson, 153 Wn. App.

417,427-28,220 P.3d 1273 (2009).

       The Washington pattern instructions recognize that the lawyers cannot reasonably

be expected to have a perfect recollection of all of the evidence presented at trial. The

introductory instruction given by the trial court at the conclusion of trial contemplated the

                                             14 

No. 30764-6-III
State v. SWinford


possibility of mistakes being made during argument, advising the jury that

              [t]he attorneys' remarks, statements and arguments are intended to
       help you understand the evidence and apply the law. They are not
       evidence. Disregard any remark, statement or argument that is not
       supported by the evidence or the law as stated by the court.

CP at 45 (based on 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY

INSTRUCTIONS: CRIMINAL § 1.02, at 14 (3d ed. 2008) (WPIC)).

       Where the jury is given this cautionary instruction and the prosecutor does not

misstate or exceed the evidence in any significant respect, his or her comments will fall

within the latitude permitted counsel in closing argument. United States v. Parker, 549

F.2d 1217, 1222 (9th Cir. 1977); and see State v. Gregory, 158 Wn.2d 759,843-44 &

n.40, 147 PJd 1201 (2006) (prosecutor misstated probabilities of one DNA

(deoxyribonucleic acid) test as 1 in 325 million rather than 1 in 235 million and another

as 1 in 180 billion rather than 1 in 190 billion; no prejudice from this or from

unsupported representations as to the population of the United States and the world).

Here again, the jury is presumed to follow the trial court's instructions. Stenson, 132

Wn.2d at 729-30 Gury is presumed to abide by instruction that counsel's arguments are

not evidence); and see United States v. Mares, 940 F.2d 455, 461 (9th Cir. 1991) (holding

that jury instruction cautioning jurors that closing arguments are not evidence mitigates

prejudice from mistakes made in closing argument).

       Here, the prosecutor's argument that Mr. Flick saw Mr. Swinford pick up the .45


                                             15
No. 30764-6-111
State v. Swinford


was unsupported by Mr. Flick's testimony. There was no other evidence that would

support this statement as to what Mr. Flick saw. But Mr. Swinford's lawyer promptly

objected that Mr. Flick never testified to seeing Mr. Swinford pick up the .45, drawing an

immediate correction from the prosecutor, who stated, "Whether he saw him do it, he

sees him with the gun." RP at 595. Mr. Swinford's lawyer reminded the jury during his

own closing argument that the prosecutor was mistaken on this point. 2

       All of the other statements challenged by Mr. Swinford's SAG were permissible

inferences from the evidence and argument. Here, too, Mr. Swinford's lawyer responded

to them in his own closing argument. 3


       2 He reminded the jury that "Mr. Flick ... said, well, you know, I'm going to look
down at my beer. He didn't see what happened." RP at 604. Being corrected in this
manner on testimony that jurors likely listened to attentively (Mr. Flick was a key
witness) reflects on the prosecutor's credibility with the jury. It is a strong disincentive
for any prosecutor to misstate evidence the jury has seen.
       Mr. Swinford's lawyer also reminded the jurors that they were the judges of the
evidence, stating, "You people all heard the testimony when it came down to the facts.
And you guys are ultimately the ones that get to evaluate the evidence, and I'm grateful
for that." RP at 603.
       3 He told the jury, "I know counsel here said that [Mr. Swinford] racked a round.
There's absolutely no evidence of that whatsoever, none presented in any testimony";
"Dr. [Gina] Fino testified that she couldn't tell whether Mr. Raney was armed prior to
this shooting. She actually couldn't say whether his arm was up or down. That's what
she testified to, not that his arm was up here, which wouldn't make any sense"; "Now,
the State also wants you to believe some of what Mr. Flick said but not all of it, which I
find interesting. Mr. Flick testified at one point that he saw Mr. Raney's hands up, but
Mr. Flick wasn't looking when the shooting started. He wasn't looking right prior to the
shooting. He testified to that. He looked down at his beer for three or four seconds
because he said Paul was arguing and he said, here we go .... Mr. Swinford also told the
police less than a week later that he didn't see Mr. Raney's hands up. But now the State

                                             16 

No.30764-6-II1
State v. Swinford


       As earlier discussed, a defendant complaining of prosecutorial misconduct in

closing argument bears the burden of showing that the prosecutor's conduct was both

improper and prejudicial. Because he shows no prejudice, we need not address further

whether the prosecutor's one factual misstatement amounted to improper argument.

       Ineffective Assistance ofCounsel. With respect to the prosecutor's alleged

misstatements of evidence to which Mr. Swinford's lawyer did not object, Mr. Swinford

argues that by failing to object, his lawyer provided ineffective assistance of counsel.

Mr. Flick's lawyer objected to the only misstatement of Mr. Flick's testimony by the

prosecutor, so there was no deficient representation.

       Failure to Define "Great Personal Injury." Mr. Swinford next argues that the

trial court erred when it failed to define "great personal injury" within the jury

instructions. He points out that it was defined for the jury in his first trial, which resulted

in a mistrial. The jury in the first trial was given the pattern instruction defining the term,

which states:

              "Great personal injury" means an injury that the slayer reasonably
       believed, in light of all the facts and circumstances known at the time,
       would produce severe pain and suffering if it were inflicted upon either the
       slayer or another person.

CP at 30 (Instruction 18, based on WPIC § 2.04.01, at 30). He is correct in pointing out

wants you to believe that Mr. Raney's hands were up and he puts them in different
positions"; and, "Now, counsel wants you to believe that [Mr. Raney's hands] were up,
but that's not a fact. There was nothing conclusive to say where his hands were." RP at
605, 609.

                                              17
No. 30764-6-111
State v. Swinford


that this definition was not included in the court's instructions to the jury in the trial

below.

         Mr. Swinford raises this objection for the first time on appeal. "RAP 2.5(a) states

the general rule for appellate disposition of issues not raised in the trial court: appellate

courts will not entertain them." State v. Guzman Nunez, 160 Wn. App. 150, 157,248

P.3d 103 (2011) (citing State v. Scott, 110 Wn.2d 682,685, 757 P.2d 492 (1988», aff'd,

174 Wn.2d 707,285 P.3d 21 (2012). "As pointed out in Scott, the general rule has

specific applicability with respect to claimed errors in jury instructions in criminal cases

through erR 6.15(c), requiring that timely and well stated objections be made to

instructions given or refused 'in order that the trial court may have the opportunity to

correct any error.'" Id. (internal quotation marks omitted) (quoting Scott, 110 Wn.2d at

686). Mr. Swinford fails to demonstrate any basis for an exception.

         Ineffective Assistance ofCounsel. Alternatively, Mr. Swinford couches his

complaint about the failure to define "great bodily injury" for the jury as one for

ineffective assistance of counsel, since his lawyer failed to request an instruction defining

the term and failed to take exception to the court's instructions excluding a definition.

         Even if Mr. Swinford could demonstrate deficient performance, he cannot show

how the deficient performance prejudiced him. The only evidence offered to support Mr.

Swinford's belief that Mr. Raney intended to inflict death or great personal injury was

Mr. Swinford's own testimony that Mr. Raney was wrapping his hand around a loaded

                                              18 

No. 30764-6-111
State v. Swinford


handgun and preparing to shoot. Mr. Swinford offers no explanation how the jury-if it

believed him-could have misconstrued "great personal injury" to have a meaning that

did not include being shot at close range by a handgun.

      The pattern instruction defining "great personal injury" also contains a subjective

element that the comments to the Washington pattern instructions point out is important

to include when instructions on self-defense are given "in a case involving the use of

force against an unarmed assailant." WPIC § 16.02, at 237-38 (emphasis added) (citing

State v. Walden, 131 Wn.2d 469, 932 P.2d 1237 (1997». The comments comport with

our conclusion that where the victim threatening harm is armed, any reasonable jury

would conclude that a risk of great bodily injury exists. Here, the subjective element was

adequately addressed by another of the court's instructions, which advised the jury:

              A person is entitled to act on appearances in defending himself, if
      that person believes in good faith and on reasonable grounds that he is in
      actual danger of great personal injury, although it afterwards might develop
      that the person was mistaken as to the extent of the danger. Actual danger
      is not necessary for a homicide to be justifiable.

CP at 63.

      Even if Mr. Swinford could demonstrate deficient performance, he cannot show

how the deficient performance prejudiced him.

      Sufficiency Challenge. Mr. Swinford next argues that the State failed to prove the

absence of self-defense beyond a reasonable doubt. When the defendant raises the issue

of self-defense, the absence of self-defense becomes an element of the offense that due

                                            19 

No.30764-6-II1
State v. Swinford


process requires the State to prove. State v. L.B., 132 Wn. App. 948, 952, 135 P.3d 508

(2006).

       Evidence is sufficient to support a conviction if, after viewing the evidence in the

light most favorable to the State, any rational trier of fact could have found guilt beyond a

reasonable doubt. State v. Kintz, 169 Wn.2d 537, 551, 238 P.3d 470 (2010). A defendant

challenging the sufficiency of the evidence in a criminal case admits the truth of the

State's evidence and all reasonable inferences that can be drawn from it. Id. (quoting

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

       The evidence presented at trial included the testimony of the only independent

eyewitness, Mr. Flick, that Mr. Raney was not acting angry in the moment before the

shooting, but was "just talking." RP at 281. It included Mr. Swinford's testimony that he

looked away, did not see Mr. Raney raise the gun, and instead shot him while continuing

to look away, holding his own gun with both hands. He admitted that he and Mr. Raney

were engaged in normal, friendly bickering moments before the shooting and that

bickering was not unusual. He admitted he overreacted. There was evidence that he took

time to cock the .45 and Mr. Flick testified that Mr. Swinford mumbled something before

he emptied his gun at Mr. Raney.

       As to Mr. Raney, there was evidence that his hands were up against his torso in a

defensive position as he was shot and that he had nothing in his hands. There was

forensic evidence that he was leaning to the right and could not have been reaching for a

                                             20 

No.30764-6-III
State v. Swinford


gun. An expert testified that he found no blood on the trigger or barrel portions on the

gun within the armchair. Instead, he found blood only on the back portion or the area

around the rear sights and around the hammer and firing pin areas, which was consistent

with the gun having been tucked into the chair between the seat cushion and the inside of

the arm of the chair during an event that created blood spatter.

       The State presented substantial evidence supporting the absence of self-defense.

       Violation ofRight to Jury Trial. Mr. Swinford finally contends that he was denied

his constitutional right to a jury trial because the jury instructions misled the jury

regarding its power to acquit. We, like both other divisions of the Court of Appeals, have

rejected this precise argument. State v. Wilson, 176 Wn. App. 147, 151,307 P.3d 823

(2013), review denied, 179 Wn.2d 1012 (2014); State v. Meggyesy, 90 Wn. App. 693, 958

P.2d 319 (1998), abrogated on other grounds by State v. Recuenco, 154 Wn.2d 156, 110

P.3d 188 (2005), rev'd, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006); State v.

Brown, 130 Wn. App. 767, 124 P.3d 663 (2005); State v. Bonisisio, 92 Wn. App. 783,

794,964 P.2d 1222 (1998). The instruction was proper.

       We affirm the conviction but remand to the trial court for the limited purpose of

striking the evaluation and treatment condition unless it determines that it can presently

and lawfully comply with the statutory requirement for a finding that Mr. Swinford has a

chemical dependency that contributed to his offense.

       A majority ofthe panel has determined that this opinion will not be printed in the

                                              21
No. 30764-6-111
State v. Swinford


Washington Appellate Reports but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:



Brown, J.     .   U

Feat.~JS. 





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