                                                                                              FILED
                                                                                       COURT OF APPEALS
                                                                                            M y " ION n
                                                                                              S
                                                                                      2013 APR _g   AM S: 03
                                                                                      S%

                                                                                      BY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II

STATE OF WASHINGTON,                                                 No. 42661 7 II
                                                                               - -


       Respondent and Cross Appellant,

       V.




MANNING WARREN DAVIS,                                        UNPUBLISHED OPINION


                  and Cross Respondent.

            BRINTNALL, J. —
       QUINN-                          A jury found Channing W. Davis guilty of second degree

assault after Davis got into a fight with Keenan Ekregren while they were both incarcerated in
the Forks City Jail.-
                    Davis appeals, arguing that ( ) prosecutor committed misconduct during
                                                1 the

closing argument, 2) trial court erred by allowing Davis to be restrained by a leg band during
                  ( the

trial, and ( 3)there   was   insufficient evidence to support the   jury's verdict.   The State cross


appeals the trial court's refusal to give the State's proposed jury instruction on the definition of

disfigurement. We decline to address the State's cross appeal because it is moot and any

decision would be purely advisory, but we affirm Davis's conviction in all respects.




1 The victim's last name is spelled " kegren"in the information, the judgment and sentence, and
                                    B
the State's brief. His last name is spelled " kregren"in the trial transcripts and Davis's briefing.
                                            B
We will       Bkregren"in this opinion.
          use "
No. 42661 7 II
          - -



                                                FACTS


        On June 5, 2011, Davis was in custody at the Forks City Jail. At approximately 10: 5
                                                                                         1

AM, Davis told Corrections Officer Lex Prose that he had been in a fight with another inmate.

Prose ordered a "lock down" and located the victim, Ekregren, in his cell. Prose observed that

Ekregren had swelling in his face and blood in his mouth. - rose also noticed blood smeared on
                                                          P

the floor.   Ekregren was transported to the emergency room. Ekregren was diagnosed with a

concussion and "
               obvious contusions of the face and head, and orbital region, around the eyes."

Report of Proceedings ( P)Sept. 12, 2011)at 42.
                      R    (

        On June 20, 2011, the State charged Davis with one count of second degree assault.

RCW 9A. 6.A jury trial was held on September 12 and 13,. which Davis was
    a).
    021(
       1)(
       3                                              during

in custody and wore a "stiff leg"restraint at trial. Ekregren did not testify at trial. The State

introduced photos showing Ekregren's eye swollen shut, bruises and abrasions on Ekregren's

face and ear, and blood in Ekregren's mouth. Sean Riley, another inmate at the jail on June 5,

2011, testified that he   saw "[   Ekregren] laying down and [Davis] was over top of him choking

him."RP (Sept.       13; 2011)at 8. Riley later clarified that Davis actually had Ekregren in a
                               -

headlock.    Officer Prose and Dr. William Washington, the emergency room physician, also

testified.


        Davis    alleged self defense and testified
                              -                        at   trial.   According to Davis, he went to

Ekregren's cell to ask him about an incident involving a theft at Davis's father's house about two

years earlier. When Davis arrived at Ekregren's cell, Ekregren " tarted swinging."RP (Sept. 13,
                                                               s

2011) at 24. After Ekregren threw the first punch, Davis "half blocked, half dodged it,"
                                                                                       then

they both started fighting. RP (Sept. 13, 2011) at 24. Ultimately, Davis placed Ekregren in a

headlock to end the fight.

                                                   2
No. 42661 7 II
          - -



         The trial court instructed the jury on the lawful use of force for assault as well as the

lesser included offense of fourth      degree   assault.   The trial court refused to give the State's

proposed instruction on the definition of disfigurement. The jury found Davis guilty of second

degree   assault.   The trial court sentenced Davis to 18 months confinement and 18 months


community custody. Davis appeals; the State cross appeals.
                                                ANALYSIS


PROSECUTORIAL MISCONDUCT


         Davis argues that the State engaged in misconduct during closing arguments by

improperly expressing personal opinions on Davis's guilt. Davis.alleges that the State's use of

the " personal pronoun ` I' approximately 60 times" during closing argument constituted

misconduct. Br. of Appellant at 9. At the beginning of closing arguments, the prosecutor stated,

                I' ask you for one thing when you deliberate, and that is please don't
                  d
         make my job any harder than it is. My job as a representative of the people of the
         State of Washington is to prove this case beyond a reasonable doubt. I' argue to
                                                                                d
         you that I'e done that, but I' point out to you that as we discussed in jury
                   v                  d
         selection it' not
                     s       proof beyond ... any doubt.

RP (Sept. 13, 2011) at 55. The prosecutor also used the phrases "I' argue"or " would argue"
                                                                  d          I

at various other points throughout his closing argument. Davis did not object to the prosecutor's

use of the pronoun " "
                   I during closing argument.

         A defendant claiming prosecutorial misconduct "` ears the burden of establishing the
                                                        b

impropriety   of the   prosecuting attorney's    comments and their     prejudicial   effect. "'   State v.


McKenzie, 157 Wn. d 44, 52, 134 P. d 221 ( 2006) quoting State v. Brown, 132 Wn. d 529,
                2                3               (                             2

561, 940 P. d 546 ( 1997),cent. denied,
          2                                       523 U. . 1007 ( 1998)).Comments are deemed
                                                       S


prejudicial only where there is a substantial likelihood that they affected the verdict. McKenzie,

157 Wn. d at 52. " prosecuting attorney's allegedly improper remarks must be reviewed in the
      2          A

                                                     3
No. 42661 7 II
          - -



context of the total argument, the issues in the case, the evidence addressed in the argument, and

the instructions given to the jury."
                                   Brown, 132 Wn. d at 561. When the defense fails to object
                                                2
to an improper argument, 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."
                                                  Brown, 132 Wn. d at 561.
                                                               2

       Here, the prosecutor used the phrases "I' argue" or " would argue,"
                                               d           I             clearly identifying

that the statements were arguments. The jury was instructed that

              t] lawyers' remarks, statements, and arguments are intended to help
                he
       you understand the evidence and apply the law. It is important, however, for you
       to remember that the lawyers' statements are not evidence. The evidence is the
       testimony and the exhibits. The law is contained in my instructions to you. You
       must disregard any remark, statement, or argument that is not supported by the
       evidence or the law in my instructions.

Clerk's Papers at 26. We presume that the jury follows that trial court's instructions. State v.

Grisby, 97 Wn. d 493, 499, 647 - 2d 6 (1982),
             2                 P.           cent. denied, 459 U. . 1211 (1983).Therefore,
                                                               S

we presume that the jury disregarded any argument that was not supported by the evidence or the
law.   Furthermore, any impropriety could easily have been cured by an objection and an

admonishment     to   the   jury. See, e. .,
                                        g State v. Emery, 174 Wn. d 741, 763 64, 278 P. d 653
                                                                2            -        3

2012)holding that prosecutor's improper statements could have been cured by an objection and
      (

proper instruction, therefore the defendant's prosecutorial misconduct claim fails). The State's

first person remarks were sloppy practice but they were not prejudicial given the jury instructions

and any potential prejudice could have been cured by a timely objection. Accordingly, Davis's

prosecutorial misconduct claim fails.




                                                  rd
No. 42661 7 II
          - -



RESTRAINTS


       Next, Davis argues that the trial court erred by allowing Davis to be restrained during

trial without   making    a   finding      impelling necessity." While Davis is correct that the trial
                                        of "


court erred by not making specific findings on the record that the restraints used were necessary,

he cannot demonstrate any            prejudice resulting   from the restraint.   Therefore, the error is

harmless.


       During trial, Davis was restrained with a "stiff leg"or leg brace. The trial court outlined

the procedure that would use to ensure that the jury would not know that Davis was restrained:

       Mr. Davis, I just want to talk to you a little bit. We try to make it appear to the
       jury that you're not in custody. They don't know whether the guards here just
       normally or not here normally. So, what I want you to do is not leave the
       courtroom even when we have a recess until I say for you to leave, so the jury
       won't see you leaving with the officer, okay?

                     Okay. And you've got something on your leg as well. Um, if you do
       testify -- intend to testify, then what I' going to do is send the jury out while you
                                                m
       get on the witness stand so they don't see you got a stiff leg on or suspect that at
        all.
               So if you have any questions about that ask [defense counsel],but just
        kind of stay here so we can not let the jury see you're going out the back door
        here, okay:

RP (Sept.      12, 2011) at 5 6. There is no indication in the record that this procedure was not
                              -


followed and there is no indication that the jury ever saw or was aware of a restraining brace.

        Davis argues that being restrained during trial without the trial court making specific

findings of necessity is presumed prejudicial and requires reversal. But Davis is mistaken. "A

jury's brief or inadvertent glimpse of a defendant in restraints inside or outside the courtroom

does not    necessarily       constitute reversible error.   Such circumstances are not inherently or

presumptively prejudicial and do not rise to the level of a due process violation absent a showing

of actual prejudice."In re Pers. Restraint ofDavis, 152 Wn. d 647, 697 98, 101 P. d 1 ( 2004).
                                                          2            -        3
                                                       5
No. 42661 7 II
          - -



In State v. Clark, 143 Wn. d 731, 777, 24 P. d 1006, cent. denied, 534 U. . 1000 (2001),
                         2                 3                            S              our

Supreme Court held that the defendant was not prejudiced by being restrained during the penalty

phase of his death penalty trial because the trial court took steps to ensure that the jury did not

see the defendant restrained.


         Here, Davis cannot show any prejudice related to his restraint during trial. The trial court

implemented procedures to ensure that the jury was not aware that Davis was restrained or in

custody      and there   is   no   indication that these   procedures   were   not   followed.   Without


demonstrating that the jury saw the restraints, Davis cannot establish any prejudice. In addition,

because Davis was charged with having committed an assault while incarcerated in the jail,the

jury was necessarily aware that Davis's liberty was restricted to some degree. Accordingly, the

trial court's failure to make an explicit finding of i"
                                                      mpelling necessity"is not reversible error.

SUFFICIENCY OF THE EVIDENCE


         Finally, Davis argues that insufficient evidence supports the jury's verdict finding him

guilty of second degree assault. Specifically, Davis argues that the evidence was insufficient to

allow a reasonable jury to find that Davis inflicted substantial bodily harm on Ekregren. Here,

the evidence of Ekregren's injuries was sufficient to support the jury's guilty verdict and Davis's

sufficiency of the evidence claim fails.

          Evidence is sufficient if when viewed in a light most favorable to the jury's verdict, it

permits any rational trier of fact to find the essential elements of the crime beyond a reasonable
doubt. State v..
               Salinas, 119 Wn. d 192, 201, 829 P. d 1068 (1992).A claim of insufficiency
                              2                  2               "

admits the truth of the State's evidence and all inferences that reasonably can be drawn

therefrom."Salinas, 119 Wn. d-
                        at 201. Circumstantial and direct evidence are equally reliable.
                          2

State   v.   Delmarter, 94 Wn. d 634, 638, 618 P. d 99 (1980). Our role is not to reweigh the
                             2                  2


                                                     6
No. 42661 - II
          7 -



evidence and substitute our judgment for that of the jury. State v. Green, 94 Wn. d 216, 221,
                                                                                2

616 P. d 628 (1980).Instead, because they observed the witnesses testify first hand, we defer to
     2

the jury's resolution of conflicting testimony, evaluation of witness credibility, and decisions
            '

regarding the persuasiveness and the appropriate weight to be given the evidence. See State v.

Walton, 64 Wn. App. 410, 415 16, 824 P. d 533, review denied, 119 Wn. d 1011 (1992).
                             -        2                             2

       Under RCW 9A. 6. person is guilty of second degree assault if he or she
                 a),
                 021(
                    1)(
                    3  a

assaults another and   recklessly   inflicts substantial   bodily   harm. " Substantial   bodily harm" is

bodily injury which involves a temporary but substantial disfigurement, or which causes a

temporary but substantial loss or impairment of the function of any bodily part or organ, or

which causes a fracture of any bodily part."
                                           RCW 9A. 4.
                                               b).
                                               110(
                                                  4
                                                  0 )(

       Davis does not deny fighting with Ekregren. Instead, he challenges only the sufficiency

of the evidence proving he inflicted substantial bodily harm. The evidence, when taken in the

light most favorable to the jury's verdict, proves that Ekregren suffered a concussion that caused
him to have trouble     walking.    Ekregren also sustained injuries to his face and mouth which

resulted in difficulty speaking. Finally, Ekregren had bruising to his face which resulted in his

eye being swollen shut: "The presence of the bruise marks indicates temporary but substantial

disfigurement." State v. 4shcraft, 71 Wn. App. 444; 55, 859 P. d 60 (1993); also State v.
                                                  4          2            see

McKague, 172 Wn. d 802, 806 07, 262 P. d 1225 (2011) bruising from being punched in the
               2            -        3               (
face and thrown    on    the   ground constituted    substantial but temporary      disfigurement).    A


concussion that interferes with the victim's ability to stand or walk is sufficient to support a

finding that the victim suffered a temporary but substantial impairment of a body part or an

organ's function. McKague, 172 Wn. d at 807. Accordingly, there was sufficient evidence to
                                 2

support the jury's verdict finding Davis guilty of second degree assault.
                                                     7
No. 42661 7 II
          - -


STATE'S PROPOSED JURY INSTRUCTION


       The State cross appeals, arguing that the trial court erred when it refused to give the

State's proposed jury instruction on the definition of disfigurement. Because we affirm Davis's

conviction, the State's cross appeal is moot. State v. Ross, 152 Wn. d 220, 228, 95 P. d 1225
                                                                   2                 3

2004)case becomes moot when the court can no longer provide effective relief).Any opinion
      (

would be purely advisory and we do not issue advisory opinions. Commonwealth Ins. Co. ofAm.

v. Grays Harbor County, 120 Wn. App. 232, 245, 84 P. d 304 ( 004)citing Wash. Beauty Coll.,
                                                   3       2      (

Inc. v. Huse, 195 Wash. 160, 164, 80 P. d 403 (1938)).
                                      2

       The State did not commit prosecutorial misconduct during closing argument. Although

the trial court erred by failing to make a finding on the record that Davis's restraints were

justified by "mpelling necessity," error was harmless. And sufficient evidence supports the
             i                   the

jury's guilty verdict. We affirm.

       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 pursuant to RCW 2.6.it is
                                                                                  040,
                                                                                    0

so ordere




                                                   Q INN-
                                                        BRINTNALL, J.
We concur:




J HANSON, A. .
          J.
           C


B   RG ,     J.




                                               3
