                                                                                                                               FILED
                                                                                                                     COURT OF APPEALS
                                                                                                 WASHINGTONSfaN
                                                                                                                                         II
      IN THE COURT OF APPEALS OF THE STATE OF
                                                                                                                 2015 HAP 31
                                                                                                                                     API 8: 37
                                                           DIVISION II
                                                                                                                 STAT               S"
                                                                                                                                              TON
    STATE OF WASHINGTON,
                                                                                         No. 45768 -7 -II s
                                                                                                                              DEP
                                         Respondent,


          v.



    BRUCE J. LENNARTZ,                                                           UNPUBLISHED OPINION


                                         Appellant.


         MELNICK, J. —           Bruce J. Lennartz appeals his conviction for tampering with a witness,

arguing that the evidence was insufficient to support his conviction, that prosecutorial misconduct

during closing argument deprived him of a fair trial, and that his attorney' s failure to object to that

misconduct      deprived him       of   his   right   to   effective assistance of counsel.          In a pro se statement of


additional     grounds (   SAG), Lennartz makes additional claims of prosecutorial misconduct and


ineffective assistance of counsel.


         Because sufficient evidence showed that Lennartz attempted to alter the victim' s testimony

and because the prosecutor did not make any improper statements during closing argument, we

reject   Lennartz'   s    claims   of    insufficient        evidence,   prosecutorial misconduct and ineffective


assistance of counsel.          The record does not support his remaining claims of error, and we affirm

his conviction.


                                                               FACTS


         Shortly after midnight on July 14, 2013, Thurston County Deputy Sheriff Donald Wall

responded to a 911 call from Samantha Youckton. When he arrived, Youckton pointed across the


street, and Wall went over to talk to a hysterical and crying Doresa Klampe. l Klampe' s face was


1
    Youckton lived       near   Klampe. Youckton             was not available   to   testify   at   Lennartz'   s   trial.
45768 -7 -II




scratched and swollen, and she         had   a gash on   her finger. Klampe said that she had argued with


Lennartz, her boyfriend,    and   that he had     punched, choked, and       kicked her.   Klampe added that


Lennartz had prevented her from calling 911 by breaking one cell phone and knocking another out

of   her hands.   Klampe   gave written and recorded statements         supporting these    accusations.   The


police arrested Lennartz a few hours later in an RV parked next to Klampe' s trailer.

         The State charged Lennartz with assault in the second degree, assault in the fourth degree,


and interfering with the reporting of domestic violence. The trial court entered a pretrial no- contact

order that prohibited Lennartz from having any contact with Klampe and from coming within 500

feet of her residence. After his release on bail, Lennartz drove by Klampe' s residence and sent her

60 text messages. Klampe reported those contacts to law enforcement and gave another recorded


statement describing them. Following his return to custody, Lennartz phoned Klampe almost 30

times and attempted more than 100 additional calls.


         The State then charged Lennartz by amended information with assault in the second degree,

tampering with a witness, assault in the fourth degree, interfering with the reporting of domestic

violence, and five counts of violating the pretrial no- contact order. Each count named Klampe as

the victim and alleged domestic violence.


         While testifying at Lennartz' s trial, Klampe could not recall most of what happened on

July 13, but she denied that Lennartz kicked and choked her or broke her cell phone. She testified

that her injuries occurred when she entered her trailer through a window. She denied that her cell

phone broke when Lennartz hit her hand with it, stating instead that the battery fell out when she

threw the phone at him. The trial court admitted Klampe' s written statement describing the assault

as substantive evidence, and      it   admitted   her   recorded statement   for impeachment   purposes.   The
45768 -7 -II




trial court also admitted Deputy Wall' s testimony about Klampe' s initial oral statements under the

excited utterance exception to the hearsay rule.

         Deputy Ryan Hoover testified about responding to Klampe' s complaint concerning the no-

contact order violations        and about   photographing    some of   Lennartz'    s   text   messages.     One text


stated, "   It' s our fault. That' s what I' m saying, our fault, not mine or yours, ours. That' s what you

should   say too."       Report of Proceedings ( RP) at 275.


         After Deputy Ryan Russell testified about taking Klampe' s recorded statement describing

the no- contact order violations, the trial court admitted Klampe' s statement as substantive

evidence. In that statement, Klampe responded as follows when Russell asked whether Lennartz

had threatened her:


         In a vague sense that only I would understand, knowing him like I do, he might not
         come right out and say, I' m coming over there, I' m going to kill you, or I' m going
         to come over there and beat you up some more, but he has said things like, I' m
            coming back for more, and you' re a weakling and a crybaby ` cause you called the
            cops, and things like that and that nature that, you know, to me are threatening.

Ex. 26, at 3.


            When the deputy asked whether Lennartz was contacting her in an attempt to change her

story, Klampe replied,

            He has been coercing me and he texted saying that I caused all this trouble, that I
            need to go down to the courthouse and I need to fix it, and so, you know, things
            like that.


Ex. 26, at 4. Klampe then explained why she supported the no- contact order:

            I do because I feel even more so now than in the beginning that, that I could be
            endanger [ sic] of, of another assault   if, you know, if I don' t do   what       he...   tells me

                to do, fix this so he can come back.

Ex. 26, at 5.




                                                         3
45768 -7 -II



           The trial court also admitted recordings of four telephone calls that Lennartz made to

Klampe from jail in October 2013.                      During a call on October 10, Lennartz told Klampe to write to

the judge or prosecutor " saying we' ll go to classes together, they have to drop the domestic deal."

RP   at   324. When he told her "just do                 all you can        do,"   she replied that she was trying, and he said,

 How      are you     trying? Who     you      been talking to ?" RP               at   325. He then             said, "   Tell them it was them


texting    me on your phone."                RP   at    326.    Klampe       replied, "          It   could      have been anybody.          I have


texted on       your phone     before." RP        at    326. Lennartz         responded, "             Yeah. We' ll just see what comes


about     it. We' ll just     see what comes about              it.    Okay ?"      RP at 326.


           On October 12, Lennartz told her, "                        And as far as me texting stuff like that, you know,

                                               had                                       RP           330. He                      I want to get out
Sammy had         your phone      too,    or            a phone      too,   right ?"             at                     added, "




of this   thing,   you   know....        I   want you      to   set   up,   honey,      I'   m   tired      of this."     RP at 330 -31. He also


stated, "[   Y] ou' re   helping    me, you'       ll   help    anybody[,] I know                you will."         RP at 336.


           On October 14, Lennartz                raised       the    subject of        Klampe'         s    injuries: "     I don' t know what


you' re    going to do.        I don' t know. But the prosecutor wants to know where these marks came


from, okay ?" RP         at   341. Klampe         replied, "     Probably from when                    she . .     broke through the window

                                                                                                 2
                in there that                                  locked her keys in. " RP                          341.    Lennartz then appeared
     to   get                   day ...      when she                                                       at




to tell his version of events:


           I don' t know what kind of marks there were. I want to know why she was sitting
           in a bar in that trailer house with two half gallons of whiskey. I don' t drink whiskey,
           you  know what I mean? I' m not pushing this off on nobody, like I said, but why
           was somebody sitting in a bar in that trailer house when I got a motor home, you' re
           sitting over there all alone, I just woke up from a nap.                                    I just woke up from a nap
           and I went over there and asked if somebody had made                                       a wood   delivery.... Yeah,
           you    tried to hit me, somebody tried to hit                     me[,] ...           phone come out of her hand,
           battery, phone hit the ground, battery fell out of it.



2
    Klampe      was   apparently referring to herself in the third                       person.
45768 -7 -II



RP at 341 -42.


            On October 22, Lennartz told Klampe, " I just                                     want [ to] tel[ 1] somebody to tell the truth, or

just tell    what     the hell happened,                     you   know      what    I   mean?"        RP    at   349. Lennartz then      said, "   You


had a chance to talk to the investigator, he was there. I was told that you didn' t want to say nothing,

you    know.       You know                  what       I   mean ?"     RP     at    350.      He     added, "     If somebody don' t speak up,

somebody lies, somebody                           got   hurt    some other          way,      you   know, it' s making         me   look bad."   RP at


350. When Klampe                      said   that      she wanted       to do the        right   thing, he       replied, "   Well, what' s right now


is   fighting   something that somebody                            put me     in here, okay? ...             Sammy has got to admit to lying,

okay ?" RP         at    351. He continued:


            And she' s going to have to admit to lying or something, something, you know, but
            marks on you, where                         did the     marks come            from?
                                                                                            Everybody says I put them on
            there. Where did                 they       come       from?     I love you with all my heart, okay? Okay?

RPat351.


            Lennartz then              stated, "[           A] 11 I did is asked yo[ u] if you sold wood to a customer and then


you raged, started               yelling      and       screaming.          I just took       off."   RP    at   352. Klampe      responded, "   I' ll do


whatever      it takes, I          swear      I   will."      RP at 353. She added that Sammy had told her she wasn' t there,

that   she   didn' t         see   anything,            and    that   she    lied   about what she said.              RP 355.       Lennartz replied,


  That'   s what        I'   m   talking      about.          I know the      marks —         but did you put marks on yourself or I don' t

know, somebody                   said marks         through the window                   or   something."         RP at 355.


            During closing argument, the prosecutor referred to these conversations and quoted

Lennartz      as   saying, " Well,                as    far   as me    texting, Sammy               could   have had     your phone."      RP at 413.


The prosecutor also quoted Lennartz as telling Klampe to tell the prosecutor " it wasn' t even you I

was    texting." RP              at   413. The prosecutor then referred to the number of phone calls that Lennartz


made and        the     pressure        that those           calls put on     Klampe. After defense                 counsel argued     that Klampe' s
45768 -7 -II




testimony was confused, the prosecutor asked the jury to put itself in Klampe' s shoes in explaining

why she changed her story. Defense counsel did not object to any of these statements.

         The jury could not reach a verdict on the charge of assault in the second degree but found

Lennartz guilty      of   the remaining charges.     The trial court sentenced Lennartz to a standard range


sentence of 51 months for witness tampering and to 364 days on each of the remaining gross

misdemeanor counts. Lennartz appeals the witness tampering conviction.

                                                    ANALYSIS


I.       SUFFICIENCY OF THE EVIDENCE


         Lennartz argues that insufficient evidence existed to prove that he tampered with a witness


because the State' s case was based on speculation rather than reasonable inferences from the

evidence. We disagree.


         Due process requires the State to prove all elements of a crime beyond a reasonable doubt.

State   v.   Aver, 109 Wn.2d 303, 310, 745 P. 2d 479 ( 1987).              Evidence is sufficient to support a


conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of

fact to find the     essential elements of    the   crime   beyond     a reasonable   doubt.    State v. Green, 94


Wn.2d 216, 221, 616 P. 2d 628 ( 1980). "            A claim of insufficiency admits the truth of the State' s

evidence and all      inferences that reasonably     can   be drawn therefrom." State v. Salinas, 119 Wn.2d


192, 201, 829 P. 2d 1068 ( 1992).         Circumstantial and direct evidence are equally reliable. State v.

Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99 ( 1980).                   We defer to the trier of fact on issues of


                 testimony, credibility   of witnesses, and     the   persuasiveness of   the   evidence.   State v.
conflicting


Walton, 64 Wn. App. 410, 415 -16, 824 P. 2d 533 ( 1992).

             To convict Lennartz of tampering with a witness, the State had to prove that he attempted

to induce a witness to testify falsely or to withhold relevant testimony. RCW 9A.72. 120( 1)( a); see



                                                            6
45768 -7 -II




State       v.   Williamson, 131 Wn.              App.    1, 6, 86 P. 3d 1221 ( 2004) ( a person tampers with a witness if


he    attempts       to   alter   the   witness' s   testimony). Proof of such an attempt does not depend only on

the literal meaning of the words used. State v. Rempel, 114 Wn.2d 77, 83, 785 P. 2d 1134 ( 1990).

The State is entitled to rely on the inferential meaning of the words and the context in which they

were used. Rempel, 114 Wn.2d at 83 -84. Relevant to that context is the effect of the inducement

attempt on the prospective witness. Rempel, 114 Wn.2d at 84.


                 Lennartz claims that the facts here resemble those in Rempel, where the defendant' s alleged


attempts to induce the victim not to testify included telephone calls containing an apology, a

statement          that " it"   was     going to   ruin   his life,   and a request   that   she "   drop   the   charges."   114 Wn.2d


at    83.        The victim testified that the defendant' s calls did not concern her and that he was only a

nuisance.           Rempel, 114 Wn.2d               at   84.   This evidence was not sufficient to support the witness


tampering conviction. Rempel, 114 Wn.2d at 84.

                 In contrast, Klampe stated that she understood that Lennartz was coercing her into fixing

things so that he could come back to her, and she added that she was in danger of another assault

if    she    did    not   do    as   he   said.    Although Lennartz did not expressly tell Klampe to change her

testimony, his attempt to persuade her to do so was clear. He suggested that someone else texted

her, that she caused her own injuries, and that he was not responsible for damaging her cell phone.

He     also       told her repeatedly to          keep trying     to   help   him. When viewed in the light most favorable


to the State, we hold that the evidence and the reasonable inferences therefrom were sufficient to


show that Lennartz attempted to induce Klampe to testify falsely.

II.              PROSECUTORIAL MISCONDUCT


                 Lennartz also argues that the prosecutor' s misstatements during closing argument deprived

him of a fair trial. We disagree.




                                                                          7
45768 -7 -II




           A defendant who alleges prosecutorial misconduct during closing argument first must

establish    that the    prosecutor' s statements were                 improper.         State v. Emery, 174 Wn.2d 741, 759,

278 P. 3d 653 ( 2012).             Once a defendant does so, we must determine whether the improper


statements prejudiced the defendant. Emery, 174 Wn.2d at 760. If the defendant did not object to

the statements at trial, he is deemed to have waived any error unless the misconduct was so flagrant

and   ill-intentioned that        an    instruction     could not       have     cured     the resulting    prejudice.   Emery, 174

Wn.2d at 760 -61.


           Lennartz urges us to apply the standard of review for constitutional error because the

prosecutor' s     alleged    misstatements             violated      his    right   to a   fair trial.    The constitutional error


standard requires us to vacate a conviction unless it appears, beyond a reasonable doubt, that the

misconduct did not affect the verdict. State v. Monday, 171 Wn.2d 667, 680, 257 P. 3d 551 ( 2011).

Courts have applied this standard to a prosecutor' s direct comments on a defendant' s exercise of

a constitutional right and to a prosecutor' s injection of improper racial biases into a trial. Monday,

171 Wn.2d        at   680; State   v.   Gregory,, 158         Wn.2d 759, 808             n.24,   147 P. 3d 1201 ( 2006),    overruled




on other grounds,         State    v.   W.R. Jr., 181 Wn. 2d 959, 336 P. 3d 1134 ( 2014). No such comments


are   at   issue here.     Because the purpose of the standard of review articulated in Emery is to

determine       whether a   defendant'      s right     to   a   fair trial   was violated, we      apply that   standard   here. 174


Wn.2d at 762.


           A.         Mischaracterizing the Evidence

           Lennartz first takes issue           with    the      prosecutor' s argument          that   he told Klampe "[ a] s far as


me    texting, Sammy had            your phone          too,     right ?"     RP    at   413.    The record shows that Lennartz


actually    said, "   And as far as me texting stuff like that, you know, Sammy had your phone too, or

had   a phone     too, right ?" RP         at   330.    Lennartz complains that by omitting the final clause of his



                                                                        8
45768 -7 -II



statement,            the   prosecutor       relied        on " subtle     omission"      to support the argument that he was


attempting to make up a new story. Brief of Appellant, at 16.

            Lennartz also complains about these statements:


                But   we    do know that          on   October the 10th the defendant                said, "   Tell him it wasn' t
                even you I was texting." And this happened during the time when he was talking
                about you need to write a letter to the prosecutor. You need to write a letter to the
            judge. It          was right after        he   said, "   You   need   to   write a   letter to the   prosecutor."   He
                said, "   Tell him it wasn' t even you I was texting."

RP    at   412 -13.            The   record shows          that Lennartz actually         said, "   Tell them we' ll both go through


counseling, tell them, tell them you knew I was texting. Tell them it was them texting me on your

phone."           RP      at   325 -26.      Lennartz earlier had urged Klampe to write a letter to the judge or


prosecutor "           saying    we'   ll   go   to   classes   together,   they have      to    drop   the domestic   deal." RP at 324.


Lennartz complains that the prosecutor improperly argued that he told Klampe to say that he had

not texted her, and he maintains that their conversation about writing letters was aimed solely at

changing the no- contact order.

                We view allegedly improper 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.

State      v.   Dhaliwal, 150 Wn.2d 559, 578, 79 P. 3d 432 ( 2003). ' A                             prosecutor     has "` wide latitude in


                arguments        to the jury      and ... [     may] draw    reasonable         inferences from the     evidence. '   State
making


v.   Fisher, 165 Wn.2d 727, 747, 202 P. 3d 937 ( 2009) (                               quoting Gregory, 158 Wn.2d at 860).

                We do not believe the prosecutor' s paraphrasing of Lennartz' s statements to Klampe

mischaracterized the evidence. Furthermore, the prosecutor began her argument by reminding the

jury about the court' s instruction that her statements during closing argument were not evidence.
The prosecutor drew reasonable inferences from the evidence in arguing that Lennartz had




                                                                             9
45768 -7 -II




attempted to influence Klampe' s testimony, and we do not see her failure to quote his statements

verbatim as misconduct.



          B.     Violating the " Golden Rule"

          Lennartz argues further that the prosecuting attorney improperly invoked the " golden rule"

during her initial argument and later in her rebuttal argument:

                 In addition, we have over 100 attempted phone calls during this period of
          time. You can imagine, I submit to you, that it would be quite influencing to have
          your phone ringing from the Thurston County Jail over 100 times over a period of
          a few months knowing that the defendant can contact you, knowing that as you' re
          about to testify that the defendant is still trying to contact you and what sort of
          affect [ sic] that had on Mrs. Klampe.


RP at 418 -19.

                  So you have to ask yourself if you were in her position, in her shoes, not in
          yours but in hers, you were homeless where the defendant provided you a place to
          live, the defendant has dirt on you, apparently, apparently has some dirt on some
          people you hang out with, ask yourselves why she maybe was motivated to change
          her story.

RP at 450.


          A " golden rule" argument urges the jury to place themselves in the position of a party or

to grant a party the same recovery that they would want if they were in the same position. Adkins
v.   Aluminum Co. of Am., 110 Wn.2d 128,                   139, 750 P. 2d 1257, 756 P. 2d 142 ( 1988).             It is


     improper because it encourages the jury to depart from neutrality and to decide the case on the

basis    of personal    interest   and   bias   rather   than   on   the     evidence. '   Adkins, 110 Wn.2d at 139


 quoting Rojas     v.    Richardson, 703 F. 2d 186, 191 ( 5th Cir. 1983)).                   Our Supreme Court has


suggested that the prohibition on golden rule arguments may not apply in the criminal context,

where such arguments may be better addressed simply as improper appeals to the jury' s sympathy

or passions.     State   v.   Borboa, 157 Wn.2d 108, 124             n. 5,    135 P. 3d 469 ( 2006).   Regardless of the




                                                                10
45768 -7 -II




proper way to frame the argument, we are not convinced that the prosecutor committed misconduct

with his remarks at issue.


         The prosecutor' s initial invitation to the jury to imagine how Klampe felt was a reasonable

attempt to explain her inconsistent testimony. The prosecutor' s subsequent suggestion that jurors

put themselves in Klampe' s position was a legitimate response to defense counsel' s closing

argument about Klampe' s confusing testimony. See State v. Davenport, 100 Wn.2d 757, 761, 675

P. 2d 1213 ( 1984) (   prosecutor' s remarks in rebuttal are not misconduct if they were invited by

defense counsel' s closing argument as long as the remarks do not go beyond that required for

pertinent   reply) ( quoting State   v.   LaPorte, 58 Wn.2d 816, 822, 365 P. 2d 24 ( 1961)).          We hold that


the prosecutor made no improper appeal to the jury' s sympathy or passion in the language cited

above. We reject Lennartz' s claim of prosecutorial misconduct.3

III.     SAG Arguments


         Lennartz makes additional claims of prosecutorial misconduct and ineffective assistance

of counsel in his pro se SAG. We reject these claims.


         First, Lennartz contends that his attorney waived his speedy trial rights against his

direction. The    record shows otherwise.          On October 28, 2013, the trial court granted the State' s


request for a two -day continuance because both the prosecutor and defense counsel were

               to begin trial that               The            does                that Lennartz               The
unavailable                               day.         record          not   show                   objected.




following day, defense counsel sought a continuance of the trial date to December 16 because a

key defense witness could not appear on the scheduled date. Defense counsel stated that Lennartz


3 Lennartz also argues that his attorney rendered ineffective assistance of counsel by not objecting
to the   prosecutor' s            Because there was no misconduct, defense counsel was not
                          arguments.

deficient in
           failing       to object to these
                                     statements. See State v. Thomas, 109 Wn.2d 222, 225 -26,
743 P. 2d 816 ( 1987) ( to prevail on ineffective assistance claim, defendant must show that
counsel' s performance was deficient and that the deficiency was prejudicial).


                                                           11
45768 -7 -II



had   signed        the    agreed    order    of continuance.      The court granted the continuance after noting

Lennartz' s agreement. Nothing in the record supports Lennartz' s current claim that his case was

continued          against   his    will.     Nor is there any support for his claim that pretrial matters were

repeatedly postponed due to defense counsel' s personal matters.

          Second, Lennartz contends that his attorney tampered with Klampe by asking her to

provide       clothing for Lennartz to           wear   during   trial.   We do not see this request as an attempt to


influence Klampe' s testimony. Lennartz argues further that when Klampe arrived at his attorney' s

office,   his attorney threatened her " to           entice cooperation      in his favor."     SAG at 2. There is nothing

in the    record     to    support   this   claim.   If Lennartz has evidence outside the record, his argument is


best raised in a personal restraint petition. See State v. McFarland, 127 Wn.2d 322, 335, 899 P. 2d

1251 ( 1995) (        the proper procedure for raising issues dependent on matters outside the record is a

personal restraint petition).




           Third, Lennartz argues that both the prosecutor and his attorney " projected the outcome of

the trial" and that defense counsel never represented that he had Lennartz' s best interests at hand.

SAG      at   2.    Without specific examples of misconduct supporting these statements, they are too

vague to consider further. RAP 10. 10( c).


           Fourth, Lennartz complains that his attorney refused to withdraw when Lennartz wanted

to fire him.          Here     again,   the   record contains no        support   for this   claim.   Lennartz may provide

supporting evidence in a personal restraint petition.

              Finally, Lennartz contends that defense counsel never addressed the concerns that Lennartz

was   allowed         to   communicate          only in writing.     Again, this statement is too general to entitle

Lennartz to          relief.   If he has specific information supporting his claims, he may file a personal

restraint petition. McFarland, 127 Wn.2d at 335, 338 n.2.




                                                                   12
45768 -7 -II



        We affirm Lennartz' s conviction.


        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:




                                                 13
