         IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

 STATE OF WASHINGTON,                              No. 79266-1-I

                            Respondent,            DIVISION ONE

                     v.                            UNPUBLISHED OPINION

 JEREMY STACK,

                            Appellant.


       LEACH, J. — Jeremy Stack appeals his conviction for one count of assault in the

second degree, one count of assault in the second degree with a deadly weapon, and

one count of reckless endangerment. He claims the trial court should have removed one

juror for bias, and that it improperly commented on the evidence by referring to the event

giving rise to his charges as “the scene of the crime”. He also claims the evidence did not

support giving a first aggressor instruction. Finally, he claims the trial court should not

have allowed expert testimony about batons, and that the prosecutor made improper

comments during closing statements.

       The trial court did not err in failing to remove a juror or by giving the first aggressor

instruction. Assuming, without deciding, that the judge’s comments were error, any error

was harmless. Finally, the trial court did not abuse its discretion by allowing expert

testimony about batons. And, Stack fails to show that the prosecutor made any improper

comments. We affirm.


     Citations and pincites are based on the Westlaw online version of the cited material.
No. 79266-1-I/2

                                         FACTS


       Jeremy Stack, a taxi driver for the Everett Cab Company, arrived at Walmart to

drive home Ashley Seabolt, Amanda Albrightson, and Albrightson’s two children M.X.A.

and M.M.A. M.X.A. was 16-months-old and M.M.A. was four-years-old. Stack began the

fare meter as the passengers were putting their groceries and a stroller into the back of

the taxi before they fully got into the vehicle. This concerned them. Albrightson asked

Stack if $8 would be enough for the ride and Stack responded, “we’ll see.” Albrightson

then asked Stack if he could take a shortcut behind a shopping mall to bypass traffic,

which he refused.

       Stack then pulled into a center turn lane and yelled at the passengers to “get the

fuck out.” At some point, while Albrightson got out and walked to the back of the van to

get her things, Seabolt hit Stack in the face. His glasses broke during the altercation. He

also had a small abrasion next to his right eye, which the on-scene officer noticed on

arrival.

       M.M.A. ran out of the van and into the street. Albrightson heard a vehicle brake,

and saw M.M.A. five feet in front of a braking school bus in the middle of the road. She

then saw Stack get out of the car with a metal baton and approach Seabolt as she was

getting out of the van while holding M.X.A. Stack had to walk around Albrightson to reach

Seabolt. Stack began hitting Seabolt while she was covering M.X.A.’s head. Albrightson

ran toward them and pulled Stack off of Seabolt by grabbing and pushing him away.

Stack then began hitting Albrightson with the baton on her head and face.

       The State charged Stack with two counts of assault in the second degree with a

                                            2
No. 79266-1-I/3



deadly weapon. At trial, Stack testified that Seabolt punched him with a toy in his eye

and on the back of his head, face, and forehead. He stated that she hit him in the face,

left the van, got back into the van, and then continued to hit him. At that point, he grabbed

his baton and got out of the van to see where the kids were so he could leave. He could

not see clearly because Seabolt knocked his glasses off in the van. Seabolt balled up

her fist to hit him, so he used force to push her away from him. Albrightson then slammed

into him from behind and he struck her with the baton.

       Stack’s first trial resulted in a hung jury on the assault counts, but the jury convicted

Stack of reckless endangerment of M.M.A and found him not guilty of reckless

endangerment of M.X.A. The second trial resulted in a mistrial due to a witness medical

emergency during testimony. After the third trial, the jury found Stack guilty of second

degree assault against Seabolt, and second degree assault with a deadly weapon against

Albrightson. Stack appeals.

                                         ANALYSIS

Juror Misconduct

       Stack claims that the trial court should have removed a juror because the juror

expressed bias and failed to follow the court’s instructions.

       An appellate court reviews a trial court decision about dismissing a juror for abuse

of discretion. 1 A court abuses its discretion when its decision is “‘manifestly unreasonable,

or exercised on untenable grounds, or for untenable reasons.’”2 In assessing alleged


1
  State v. Depaz, 165 Wn.2d 842, 858, 204 P.3d 217 (2009).
2
  Breckenridge v. Valley Gen. Hosp., 150 Wn.2d 197, 203-04, 75 P.3d 944 (2003)
(quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
                                               3
No. 79266-1-I/4



juror misconduct, the trial judge necessarily acts as “both an observer and decision

maker.” 3 Because such “‘fact-finding discretion’ ” allows the judge to weigh the credibility

of jurors, we accord the trial court’s decision with substantial deference.4

       During the first trial, Juror 9 expressed concern that Stack was using his cell phone

and could take his picture. He stated he did not think Stack was doing anything wrong

but just wanted to know if the court permitted Stack’s cell phone use. The trial court

denied Stack’s request to strike Juror 9. Stack claims Juror 9’s conduct shows that Juror

9 could not presume him innocent and inferred Juror 9’s bias against him.

       Stack also claims the trial court erred in denying his motion to strike Juror 9 a

second time, because Juror 9 asked the law clerk if the jury would receive a transcript of

the trial testimony instead of writing and submitting the question to the presiding juror as

instructed. Stack claims this shows Juror 9 could not follow the court’s instructions

including an inability to presume Stack innocent.

       When the court questioned Juror 9 about his concerns involving Stack’s cell phone

use, Juror 9 indicated that he presumed Stack innocent and did not think Stack was doing

anything wrong, and he just wanted to know if he was allowed to use the cell phone.

None of the concerns or answers show an inability to presume Stack innocent.

       Also, Juror 9 followed all the proper court directions, and his question about the

transcripts does not show that he was unfit to serve in the case. Juror 9’s question was

for clarification purposes, it did not show the juror was unable to follow court procedures,


3
 State v. Jorden, 103 Wn. App. 221, 229, 11 P.3d 866 (2000).
4
 Jorden, 103 Wn. App. at 229 (quoting Ottis v. Stevenson–Carson Sch. Dist. No. 303,
61 Wn. App. 747, 753, 812 P.2d 133 (1991)).
                                             4
No. 79266-1-I/5



and it had no effect on the trial. The trial court did not abuse its discretion by refusing to

remove Juror 9.

Improper Comment on Evidence

         Stack claims the trial court improperly commented on evidence by telling the jury

twice that they could not go to the scene of the crime during trial.

         Article IV, section 16 of the Washington State Constitution provides, “Judges shall

not charge juries with respect to matters of fact, nor comment thereon, but shall declare

the law.” This prohibits a judge from “conveying to the jury his or her personal attitudes

toward the merits of the case.” 5

         During the first trial, the judge instructed the jurors:

         As a Juror, do not seek out evidence on your own. Do not inspect the scene
         of an event involved in the case as conditions may not be the same. You’re
         Jurors, not detectives. Don’t go to the scene of the crime, as they say. Just
         don’t do it.

         The court again instructed the jury after the first day of testimony:

         Other than that, you’ve heard a lot of testimony. So please don’t go looking
         around, poking around 7th Avenue and Wal-Mart. Don’t go to the scene of
         the crime. Don’t be checking your internet or cellphones or tablets or
         anything like that. Don’t be reading the newspapers about this case or
         anything online about this case. It’s very important since we’ve heard a lot
         of testimony that you adhere to those things.

         Stack claims these comments were improper because they indicate that Stack

committed a crime, and whether a crime had occurred was a disputed issue.

         Assuming, without deciding, that the judge’s instructions commented on evidence,

any error was harmless.


5
    State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997).
                                                 5
No. 79266-1-I/6



         A constitutional error is harmless if we are convinced beyond a reasonable doubt

that any reasonable jury would have reached the same result without the error.6 If the

evidence untainted by the error is so overwhelming that it necessarily leads to a finding

of guilt, an appellate court will affirm the conviction. 7

         Having reviewed the record, we are convinced beyond a reasonable doubt that the

judge’s challenged instructions could not have changed the jury’s verdict. The statement

“the scene of the crime” occurred during the first trial, which resulted in a hung jury on the

assault charges and a conviction for reckless endangerment. So, we need to consider

only whether the comments affected his reckless endangerment conviction.

         To convict Stack of reckless endangerment, the State had to prove that “Mr. Stack

knew of and disregarded a considerable risk—not a certainty—of death or serious

physical pain or injury to M.M.A. and M.X.A. and that his behavior constituted a gross

deviation from how a reasonable person would have acted based on the known facts.”

         Here, despite the availability of nearby parking lots, Stack stopped his van in the

middle of a busy street and instructed all the passengers, including 16-month-old M.X.A.

and four-year-old M.M.A., to “get the fuck out.”             Stack knew the passengers had

possessions in the back of the vehicle including a stroller. After Stack pulled over and

instructed the passengers to get out, M.M.A. ran into the street and a bus almost hit her.

Any reasonable person would know that ordering young children and adults to get out in




6
    State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985).
7
    Guloy, 104 Wn.2d at 425.
                                                6
No. 79266-1-I/7



the middle of a busy street would create a considerable risk of death or serious physical

injury.

          The overwhelming evidence, without the judge’s comments, necessarily leads to

a finding beyond a reasonable doubt that Stack knew of and disregarded a considerable

risk that his actions could have seriously injured or killed M.M.A. Any error was harmless.

First Aggressor Instruction

          Stack next challenges the trial court’s decision to give a first aggressor instruction.

Stack claims the record includes no evidence of an intentional act by him reasonably likely

to provoke a belligerent response and create the necessity to act in self-defense.

          We review de novo whether sufficient evidence supports a trial court’s decision to

give a first aggressor instruction.8

          The first aggressor instruction reflects the general principal that a defendant may

not invoke the right to defend himself when he provoked the altercation.9 It is appropriate

where a defendant invokes the right to self-defense and there is credible evidence from

which a jury can reasonably determine that the defendant created the need to defend

himself.10 The party requesting the instruction, here the State, must produce credible

evidence to warrant it.11 On appellate review, this court considers the evidence in the

light most favorable to the requesting party. 12 Most cases involve complicated facts

making the use of bright line rules inappropriate. 13

8
  State v. Bea, 162 Wn. App. 570, 577, 254 P.3d 948 (2011).
9
  State v. Riley, 137 Wn.2d 904, 912, 976 P.2d 624 (1999).
10
   Riley, 137 Wn.2d at 909-10.
11
   State v. Richmond, 3 Wn. App. 2d 423, 432-33, 415 P.3d 1208 (2018).
12
   Bea, 162 Wn. App. at 577.
13
   State v. Grott, 458 P.3d 750, 758 (2020).
                                                 7
No. 79266-1-I/8



       A court properly instructs the jury about a first aggressor where ‘“(1) the jury can

reasonably determine from the evidence that the defendant provoked the fight, (2) the

evidence conflicts as to whether the defendant's conduct provoked the fight, or (3) the

evidence shows that the defendant made the first move by drawing a weapon.”’14 The

provoking act, because words alone will not suffice, must be both predicate and related

to the charged crime. 15 Also, the provoking act must be intentional and one that a “jury

could reasonably assume would provoke a belligerent response by the victim.” 16 The

unlawful act creating the provocation need not be the actual striking of a first blow. 17

(W)here there is evidence that the defendant engaged in a course of aggressive conduct,

rather than a single aggressive act, “the provoking act can be part of a ‘single course of

conduct.’”18

       Courts should be careful about giving a first aggressor instruction.19 But, courts

do not err in giving the instruction when there is credible evidence warranting it.20

       Here, the first aggressor instruction read:

       No person may, by any intentional act reasonably likely to provoke a
       belligerent response, create a necessity for acting in self-defense and

14
   Richmond, 3 Wn. App. 2d at 432 (quoting State v. Anderson, 144 Wn. App. 85, 89,
180 P.3d 885 (2008)), review denied, 191 Wn.2d 1009, 424 P.3d 1223 (2018).
15
   State v. Sullivan, 196 Wn. App. 277, 383 P.3d 574 (2016) (quoting State v. Wasson,
54 Wn. App. 156, 159, 772 P.2d 1039 (1989).
16
   State v. Wasson, 54 Wn. App. 156, 159, 772 P.2d 1039 (1989) (quoting State v.
Arthur, 42 Wn. App. 120, 124, 708 P.2d 1230 (1985), review denied, 113 Wn.2d 1014,
779 P.2d 731 (1989).
17
   State v. Hawkins, 89 Wash. 449, 154 P. 827 (1916).
18
   State v. Grott, 458 P.3d at 758 (quoting State v. Sullivan, 196 Wn. App. 277, 383 P.3d
574 (2016)).
19
   Riley, 137 Wn.2d at 910.
20
   State v. Hughes, 106 Wn.2d 176, 192, 721 P.2d 902 (1986); State v. Heath, 35 Wn.
App. 269, 271-72, 666 P.2d 922, review denied, 100 Wn.2d 1031 (1983).
                                             8
No. 79266-1-I/9


       thereupon use, offer, or attempt to use force upon or toward another person.
       Therefore, if you find beyond a reasonable doubt that the defendant was
       the aggressor, and that defendant’s acts and conduct provoked or
       commenced the fight, then self-defense is not available as a defense.
       Words alone are not sufficient to qualify one as an aggressor.

       Stack claims that it is not reasonably likely that “cutting a cab ride short and

demanding customers vacate the cab would lead to assaultive conduct by those

customers and thereby create the necessity to act in self-defense.”

       He explains how it was the assault on Stack, “rather than anything preceding it,

that triggered the necessity of Stack’s use of defensive force.” But, the record contains

sufficient evidence to allow a juror to find an aggressive course of conduct by Stack

reasonably likely to provoke a belligerent response from the mothers of the young children

riding in his taxi. Stack suddenly and unnecessarily demanded that these children leave

the taxi in the middle of a busy street, exposing them to serious risk of harm. The trial

court did not abuse its discretion by giving the first aggressor instruction.

Witness Testimony

       Stack claims the trial court should not have allowed Everett Police Sergeant Jeff

Pountain to testify about batons as a deadly weapon, because it was not relevant

evidence.

       We review a trial court’s evidentiary ruling for abuse of discretion.21 A court abuses

its discretion “only if no reasonable person would have decided the matter as the trial

court did.”22



21
  State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002).
22
  State v. O’Connor, 155 Wn.2d 335, 351, 119 P.3d 806 (2005); Darden, 145 Wn.2d at
619 (quoting State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995)).
                                              9
No. 79266-1-I/10



         The threshold to admit relevant evidence is very low. 23 Evidence is relevant if 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 than it would be without the

evidence.”24

         At the third trial, Pountain testified that Stack’s collapsible metal baton was similar

to batons issued to police officers. He told jurors that a strike to the head with a baton

can cause significant bodily injury, fracture a skull, and it can cause death. Stack claims

this testimony had no tendency to make the existence of any fact of consequence more

or less probable, making it not relevant. But, the jury had to decide, as a matter of fact,

whether the baton was a deadly weapon. So, Pountain’s testimony regarding the baton’s

ability to be used as a deadly weapon, depending on where it is used on the body, was

relevant to whether Stack used the baton as a deadly weapon. The trial court did not

abuse its discretion in admitting the evidence.

Prosecutorial Misconduct

         Stack next claims the prosecutor engaged in prosecutorial misconduct when he

suggested that one of the witness’s mistaken recollection of events could have resulted

from the passage of time between the event and his testimony.

         During closing arguments, the prosecutor made the following statement:

                 But think about this. If Teddy Leavitt is wrong, how did he get it
         wrong? Which way did his mind’s eye turn this situation in the nearly two
         years since it happened and he’s thought about it from time to time? It turns
         it in the direction of starting with the truth of what he actually observed, a
         severe and a forceful and an unrebutted physical attack with a metal baton

23
     Darden, 145 Wn.2d at 621.
24
     ER 401.
                                               10
No. 79266-1-I/11


       on two women. And it was the force and the severity of what he did see that
       has him stating now all this time later that in his mind's eye it was more
       times than he could count. That’s how those types of mistakes happen.

       But, Stack provides no authority or explanation aside from stating that the

prosecutor’s statements regarding the passage of time is “improper.”25 He does not show

that any prosecutorial misconduct occurred.

Statement of Additional Grounds

       Stack claims a series of errors in his statement of additional grounds. He first

claims an ethics violation and prosecutorial misconduct. He states, “a state prosecutor

used witnesses, that he/she knew would lie on the stand and pergur [sic] themselves”.

He also claims the prosecutor misquoted the bible to strike any juror who “understood

said scripture of the Jews,” and because he is Jewish, he did not receive a fair trial. Stack

further claims the prosecutor withheld evidence because there was missing glass and

“the prosecutor knew Albrightson used a glass jar to cut herself.”

       Stack does not point to any evidence in the record supporting any of these claims.

We will not consider these unsupported claims. 26

       He also states that prosecutorial misconduct occurred because a newspaper

publicized this case. Stack does not provide any evidence that the prosecutor in this case

had anything to do with the case appearing in the news.




25
   RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828
P.2d 549 (1992).
26
   RAP 10.3(a)(6); Cowiche Canyon Conservancy, 118 Wn.2d at 809.
                                             11
No. 79266-1-I/12



       Stack next claims RCW 9A.16.020 allows any carrier of passengers to use force

to expel passengers who refuse to obey a reasonable regulation for passenger conduct.

This statute does not authorize criminal conduct. 27

       Stack next claims he should have been able to show that Albrightson and Seabolt

were involved in a crime at the time of the event, because they were banned for life from

Walmart yet shopped there that day. At trial, the judge ruled the trespass evidence

irrelevant.

       A trial court’s ruling on the admissibility of evidence is reviewed for abuse of

discretion.28 Discretion is abused “only if no reasonable person would have decided the

matter as the trial court did.”29

       Evidence is relevant if 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 than

it would be without the evidence.”30

       Here, the trespass evidence was not relevant. Any evidence that Seabolt or

Albrightson trespassed earlier that day to purchase groceries has no tendency to make

the existence of any fact that is of consequence in this case more or less probable. So,

the court did not abuse its discretion in denying the evidence.




27
   “We will not consider an inadequately briefed argument.” Norcon Builders, LLC v.
GMP Homes VG, LLC, 161 Wn. App. 474, 486, 254 P.3d 835 (2011).
28
   Darden, 145 Wn.2d at 619.
29
   O’Connor, 155 Wn.2d at 351; Darden, 145 Wn.2d at 619 (“Abuse exists when the trial
court’s exercise of discretion is ‘manifestly unreasonable or based upon untenable
grounds or reasons.’” (quoting Powell, 126 Wn.2d at 258).
30
   ER 401.
                                            12
No. 79266-1-I/13



         Stack next claims a juror in the first trial was alone with the prosecutor during lunch.

But, he provides no citation to the record nor points to any evidence of this.31

         Stack also claims judicial misconduct occurred at the second trial. Because that

trial ended in a mistrial, this claim is moot.

         Stack also claims the judge colluded with the prosecutor because the judge and

prosecutor changed his testimony from the first trial to “suit these needs to convict with

misquotes and lies”. But, Stack fails to cite to any evidence showing either the judge or

prosecutor changed his testimony. 32

         Stack claims the jury was manipulated because Stack lost a nurse who had

knowledge of bruising. He fails to cite to the record for this or further explain or assign

any error here.

         Finally, Stack claims the prosecutor led the witnesses to elude to things that did

not happen and that did not match evidence. But, he fails to explain what the prosecutor

eluded to.

                                         CONCLUSION

         We affirm. The trial court did not abuse its discretion in refusing to remove a juror.

If the trial court erred in instructing the jury not to visit the scene of the crime, the error is

harmless because even without the judge’s comments, the jury would have still convicted




31
     RAP 10.3(a)(6).
32
     RAP 10.3(a)(6).
                                                 13
No. 79266-1-I/14



Stack of reckless endangerment. Finally, Pountain’s testimony about the use of batons

was relevant and no prosecutorial misconduct occurred.




WE CONCUR:




                                         14
