                                                                    1 ,
                                                        COURT Or APPEALS DIV I
                                                         STATE OF WASHINGTON

                                                        7018 SEP 24 111110: 40




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                     )
                                         )       No. 76356-3-1
                     Respondent,         )
                                         )       DIVISION ONE
              v.                         )
                                         )
MARLON 1UPATI LEMAFA,                    )       UNPUBLISHED OPINION
                                         )
                     Appellant.          )       FILED: September 24, 2018
                                         )

       BECKER, J. — Appellant Marlon Lemafa was convicted of two counts of

first degree assault. He challenges the sufficiency of the evidence underlying his

conviction. We affirm.

       The assaults occurred on December 13, 2015, outside a sports bar in

Kent, Washington. Lemafa was involved in a chaotic brawl in the bar's parking

lot. The scene was captured by several surveillance cameras.

       Johnny Nay and Kim Ung spent the night socializing and playing pool at

the bar. The fighting broke out around the time Nay and Ung were leaving. At

trial, the prosecutor played exhibit 16, a composite of the surveillance video

recordings. A police witness identified Lemafa, Nay, Ung, and other individuals

on the video recordings and pointed out their movements. Nay saw people

attacking a man lying on the ground. Nay, who thought he recognized the man,
No. 76356-3-1/2

intervened and separated him from his assailants, allowing him to escape. Nay

realized he did not know the man and began to walk back to his car.

       At this point, Nay exchanged words with Lemafa's cousin, Feronita Moe.

Moe pushed Nay. Exhibit 16 at 1:40-1:50. Ung attempted to lead Nay away

from the confrontation. Lemafa walked up behind Nay and punched him twice in

the head, causing Nay to fall to the ground. Exhibit 16 at 2:40-2:45. Lemafa

then punched Ung, who also fell to the ground, hitting his head against the curb

as he fell. Lemafa kicked and punched Nay and Ung as they lay on the ground.

Exhibit 16 at 3:40-4:05. Moe and her boyfriend Tony Talaga joined in,

unleashing their own punches and kicks upon the prone Nay and Ung. Exhibit

16 at 3:40-4:05.

       When the police arrived, they found Nay and Ung unconscious and

bleeding in the parking lot. The assault ruptured Nay's left eye. He is now blind

in the eye and will likely need to have it surgically removed. Nay's injuries left

him unable to return to his job, unable to drive at night, and suffering from

migraine headaches. He was still undergoing physical and speech therapy at the

time of the trial. Ung suffered a concussion and a broken nose that required a

metal plate to be inserted into his sinus area. The assault ruptured Ung's

tympanic membrane, leaving him with partial hearing loss in his right ear.

      The jury convicted Lemafa. His offenses were "serious violent offenses"

as defined by RCW 9.94A.030(46)(v) requiring the court to impose consecutive

sentences. RCW 9.94A.589(1)(b). The court imposed consecutive standard

range sentences, totaling 222 months' imprisonment.


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No. 76356-3-1/3

                                     ANALYSIS

Sufficiency of the Evidence

      "A person is guilty of assault in the first degree if he or she, with intent to

inflict great bodily harm.... assaults another and inflicts great bodily harm."

RCW 9A.36.011(1)(c). Great bodily harm is defined as "bodily injury which

creates a probability of death, or which causes significant serious permanent

disfigurement, or which causes a significant permanent loss or impairment of the

function of any bodily part or organ." RCW 9A.04.110(1)(c).

       Lemafa does not dispute that Nay's ruptured eye is great bodily harm. He

argues that there is insufficient evidence to establish that he inflicted it. To

determine if sufficient evidence supports a conviction, we consider whether, after

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

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

reasonable doubt. State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016).

       Lemafa, Moe, and Talaga all participated in the attack on Nay. The State

could not pinpoint exactly when Nay's eye was ruptured. One of the State's

medical witnesses, Dr. Eissa Hanna, testified that Nay's injury is one that

typically results from multiple blows. Absent evidence that directly establishes

that it was a blow from Lemafa that ruptured Nay's eye, Lemafa claims the State

lacked proof that he was the proximate cause of Nay's injury. Lemafa argues

that he could be convicted only as an accomplice. Before a defendant can be

convicted as an accomplice, the court must instruct the jury on accomplice

liability. State v. Davenport, 100 Wn.2d 757, 764,675 P.2d 1213(1984).


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No. 76356-3-1/4

Because the court did not instruct the jury on accomplice liability, Lemafa argues

that his conviction must be reversed for insufficient evidence of proximate cause.

       To find that Lemafa was the proximate cause of Nay's injuries, the jury did

not have to find that Lemafa was the sole cause. State v. Christman, 160 Wn.

App. 741, 754, 249 P.3d 680, review denied, 172 Wn.2d 1002(2011). "Although

a defendant's conduct is not a proximate cause if some other cause is a sole or

superseding cause, it can be a proximate cause if another cause is merely a

concurrent cause. The same harm can have more than one proximate cause."

Christman, 160 Wn. App. at 756; cf. State v. Bauer, 180 Wn.2d 929, 940, 329

P.3d 67(2014)(holding that legal causation may not be found in a criminal case

if "the accused did not actively participate in the immediate physical impetus of

harm"). The jury watched video of Lemafa delivering two violent punches to the

left side of Nay's face when Nay was facing the other direction. Nay fell to the

ground, and Lemafa proceeded to kick and punch him as he lay defenseless.

Lemafa's conduct was "not only intentional, but felonious, and capable of causing

harm in and of itself." Bauer, 180 Wn.2d at 939. Considering the force of

Lemafa's blows and the fact that the blows were to the area near Nay's left eye,

a reasonable fact finder could conclude that Lemafa had criminal liability as a

principal for causing Nav's ruptured eye. The lack of an instruction on

accomplice liability is irrelevant.

       As to the charge of first degree assault against Ung, Lemafa argues that

Ung's hearing loss did not amount to significant permanent loss or impairment as

required to prove great bodily harm. Lemafa claims a reasonable fact finder


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No. 76356-3-1/5

would conclude that Ung's partial hearing loss was only temporary based on

Ung's testimony that he was unsure whether the damage was permanent and

that his hearing had improved somewhat by the time of the trial.

       Lemafa overlooks Ung's testimony that his fractured tympanic membrane

left him with a constant beeping noise in his ear. The noise was still present at

the time of trial, nine months after the assault. Ung said he had been told there

were no further medical treatments available to help with the problem. Based on

this testimony, a reasonable fact finder could conclude that Ung's hearing

impairment was significant and permanent. We conclude sufficient evidence

supported the assault charges.

Prosecutorial Misconduct

       Lemafa contends that a new trial is required due to the misrepresentation

of evidence in the State's closing argument. The burden of establishing the

impropriety of the prosecuting attorney's comments and their prejudicial effect

rests with the defendant. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221

(2006). The comments at issue concern whether the impairment of Ung's

hearing loss was permanent. The prosecutor stated the beeping noise in Ung's

ear was "not going away":

      But you heard him testify about the damage to his hearing in his
      right ear, how it was muffled for a long time. It was kind of muffled
      is how he described it, almost holding his hand up to his ear. And
      that now, to this day, he hears beeping when he lays down when
      it's quiet. And that is not going away. That will be there. And the
      evidence has shown he had no problems with his hearing before
      that night.

Lemafa did not object to this argument.


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No. 76356-3-1/6

       On appeal, Lemafa contends the evidence does not support a finding that

the hearing impairment was permanent. He argues that the prosecutor

committed misconduct by misrepresenting the evidence.

      "Where the defense fails to object to an improper comment, the error is

considered waived 'unless the comment is so flagrant and ill-intentioned that it

causes an enduring and resulting prejudice that could not have been neutralized

by a curative instruction to the jury." McKenzie, 157 Wn.2d at 52, quoting State

v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546(1997). Because Lemafa did not

object, he has waived the claim of prosecutorial misconduct.

       Lemafa attempts to overcome his lack of objection to the prosecutor's

remarks by recharacterizing the issue as whether defense counsel provided

ineffective assistance by failing to object. He has not shown that prosecutorial

misconduct implicates the ineffectiveness of counsel doctrine. See State v.

Fisher, 165 Wn.2d 727, 757 n.8, 202 P.3d 937(2009). Review under the

standards for prosecutorial misconduct is sufficient to determine whether the

prosecutor's remarks warrant reversal.

       In any event, the prosecutor's statements did have a basis in Ung's

testimony. Ung testified that he suffered from a constant beeping noise, his

hearing had not returned to normal after nine months, and doctors informed him

there was no further medical treatment available to remedy his hearing problems.




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No. 76356-3-1/7

      Affirmed.



                       i3ecle.e.te,i .
WE CONCUR:



-..41.4ehAA.A.-1
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