          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                           )
                                                               )
                                Respondent,                    )   No. 78398-0-I
                                                               )
                     v.                                        )   DIVISION ONE
                                                               )
JARON LAMAR CCX,                                               )   UNPUBLISHED OPINION
                                                               )
                                         Appellant.            )                    FILED: February 3, 2020
__________________________________________________________________________________)

          SMITH, J.       —   Jaron Cox was convicted of attempted murder in the first

degree for shooting Alden Gibbs. On appeal, he argues that his conviction must

be reversed because the evidence was insufficient to support a finding that he

acted with premeditated intent to cause Gibbs’s death. He argues in the

alternative that a new trial is warranted because the to-convict instruction

relieved the State of its burden to prove premeditation, the State withheld

material impeachment evidence, the trial court excluded Cox’s exculpatory

statement to an officer, and the prosecutor committed misconduct during closing.

          We conclude that the evidence was sufficient, when viewed in the light

most favorable to the State, to support a finding that Cox acted with premeditated

intent to cause Gibbs’s death. We also conclude that the to-convict instruction

was adequate, that the impeachment evidence withheld by the State was not

material in light of the record in this case, and that both the exclusion of Cox’s
No. 78398-0-1/2

exculpatory statement and the prosecutor’s statements during closing were

harmless. Therefore, we affirm.

                                       FACTS

       This case arises out of a shooting that occurred at 2:17:40 a.m. on

January 16, 2017, in the Pioneer Square neighborhood of Seattle. The shooting

occurred near the southwest corner of a building located at 164 South

Washington Street (Fuel building). The Fuel building is situated on the north side

of South Washington Street. It houses multiple bars, including Stage nightclub

and Fuel, which is located in the southwest corner of the Fuel building. Just west

of the Fuel building, on the same block, is a parking lot (parking lot) that is

separated from the Fuel building by an alley, where the shooting took place.

       Earlier that morning, around 1:00 or 1:30 a.m., a group of Seattle police

officers, including Officers Victor Pirak and Jennifer Hunt, were standing on the

south side of South Washington Street in front of McCoy’s Firehouse bar, across

the street from and slightly east of Fuel. The officers were there to ‘try to monitor

and talk to people and identify where problems may arise” as the bars in that

area began to close. At some point, the officers became aware of a fight

breaking out near Fuel. Officer Pirak saw what he later described as “a

commotion where people were actually starting to put hands on each other”

occurring on the southwest corner of the Fuel building. Another officer later

testified that, at the corner of the Fuel building, he “saw two black males fighting

one another” and “throwing punches at each other.” Some of the officers,

including Officer Pirak and Officer Hunt, began walking along the south sidewalk


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No. 78398-0-1/3

of South Washington Street, in the direction of the fight. As Officer Pirak walked

in that direction, he “saw the physical altercation become more grabbing on.” He

“thought [he] saw a swing,” and he “saw somebody get kind of pulled down and

maybe people trying to pull him off.” Officer Pirak then heard “a number of

rounds being fired.” The shots sounded to Officer Pirak like they were coming

from the parking lot.

       Officer Pirak took cover behind a car. As he did so, Officer Hunt ran past

him. Officer Pirak also saw another officer, Scott Barker, moving along the north

sidewalk in front of Fuel. Officer Pirak thought that would be a safer position, so

he came around the car he had taken cover behind and crossed the street. As

Officer Pirak approached the Fuel building he saw a man, later identified as

Gibbs, lying on the ground where the fight had been happening. Gibbs had

suffered multiple gunshot wounds. Although he survived, he is unable to walk.

       Officer Barker also “heard multiple gunshots coming from th[e] location

where the fight was.” He “drew [his] gun and   .   .   .   immediately started going

there.” As he rounded the corner of the Fuel building, he saw a large black SUV

facing him, parked facing southbound in the alley. He “immediately started

scanning the area looking for the threat.” He later testified that he looked

northwest into the parking lot and saw a man, later identified as Cox, “walking

west through the parking lot kind of nonchalantly, calmly, when everyone else

was kind of frantic because there was gunshots.” Officer Barker testified that he

made eye contact with Cox, who started running through the parking lot toward a

Camaro that was parked in the lot. Cox was accompanied by a woman, later


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 No. 78398-0-1/4

identified as Princess Combs, who got into the driver’s side of the Camaro.

Officer Barker testified that he saw what appeared to be Cox trying to hand

something to Combs, and Combs making facial expressions and hand motions

indicating that she did not want to accept whatever it was Cox was trying to hand

her. Cox then ran behind the Camaro and ducked. At this point, Officer Barker

had his gun out and was yelling for Cox to show him his hands and get on the

ground. Cox ultimately complied and Officer Barker handcuffed Cox behind the

Camaro on his stomach. Officer Hunt later testified that she saw the shooting

and witnessed the shooter turn and flee into the parking lot. She also testified

that she did not lose sight of the shooter from the time that she saw him shooting

until the time that Officer Barker arrested him, i.e., Cox.

       Officer Barker testified that after he arrested Cox, he looked underneath

the Camaro “and approximately 2 feet from where Mr. Cox was there was a pistol

with the slide locked to the rear, and so [Officer Barker] confiscated that.”

According to a later-filed probable cause statement, “Cox immediately told Officer

Barker that the gun was not his and that someone gave him the gun to hide.”

       At the time of his arrest, Cox was wearing a black jacket with large, white

cursive lettering across the back. The gun recovered from under the Camaro, a

“9-millimeter Luger caliber Glock semi-automatic pistol,” was later confirmed as

the gun used to shoot Gibbs.

       The State charged Cox with one count of attempted murder in the first

degree and one count of assault in the first degree, in each case while armed

with a firearm. Prior to trial, the State moved to exclude, if offered by Cox,


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No. 78398-0-1/5

evidence of Cox’s statement to Officer Barker that he had been given the gun to

hide. The State contended that Ccx’s statement was hearsay and did not fall

under any recognized hearsay exception. In response, Cox argued that the

statement was admissible as an excited utterance; he also argued that it was not

hearsay because he was offering it not for the truth of the matter asserted but to

show that the subsequent police investigation was inadequate. The trial court

excluded the statement, explaining, “I don’t see it has relevance for a non-

hearsay purpose.”                                                                            -




       At trial, Gibbs testified that on the evening of the shooting, his friends

talked him into going out to Stage nightclub. Stage was holding an “all-black

party” that night, “meaning everybody was wearing black.               .   .   clothing.” Gibbs

and his friends arrived around 12:15 or 12:20 a.m. Gibbs did not see any

altercations in the club, but toward the end of the night, he heard that things

would be ending early because someone was “attacking females.” Gibbs and his

friends decided to leave. As they exited Stage, Gibbs asked a friend to get his

car. Gibbs, meanwhile, planned to escort Libby Pinder, a friend that he had seen

in the club earlier, to her car.

       Pinder, who also testified, recalled that as she and Gibbs were walking

toward the parking lot, “there was a dude that was riled up.” Pinder described

him as “African-American and kind of chubby” and heavier than Gibbs. Gibbs

described the man as “about six-foot, if that. Maybe six-one. Probably 50

pounds more than me.      .   .   .   I don’t want to say that he’s solid, you know, but he’s

a bigger, heavy-set guy.” Pinder recalled saying to Gibbs, “‘I think that’s the guy


                                                   5
 No. 78398-0-1/6

that was in there that was riled up. I think so.” Pinder testified that the man

heard her and “started saying unpleasant things to [her,] and [Gibbs] started

sticking up for [her].”

       Gibbs testified that the man said something to him like, “‘Well, you trying

to save these girls or something? I’ll slap you.” Gibbs looked at the man and

“was just like, you know, like, ‘You know, whatever.” As Gibbs and Pinder

walked off, Gibbs looked back and saw the man “kind of walking up on me.”

Gibbs expressed that he did not want to fight, but testified that the man “was

determined to fight.” Gibbs had never seen the man before. Gibbs tried to stay

calm, but then the man swung at him and a fight broke out. Gibbs recalled that

when the man first swung at him, they were at the entrance of the alley between

the Fuel building and the parking lot.

       Gibbs testified that as the man was swinging at him, Gibbs was swinging

back, and eventually Gibbs “knocked him” and he fell on a black SUV that was in

the alley. According to Gibbs, the SUV backed up and the man fell onto the

ground. Gibbs testified that the next thing he remembers—after confirming that

the man was on the ground and no longer a threat—was that Gibbs “heard one

gunshot and   .   .   .   was laying on the ground.” Gibbs “never felt the gunshot” but

knew that he “was on the ground and everybody was screaming at [him].” Gibbs

recalled taking the ambulance to Harborview Medical Center, where he was

treated for multiple gunshot wounds. The surgeon who treated Gibbs at the

hospital testified that although he could not offer an opinion as to the relative

positions of Gibbs and the person who fired the weapon, “[i]t looks, according to


                                                6
 No. 78398-0-1/7

the CT scans and the injuries, the bullet entry wounds were from the back.” An

officer who collected evidence at the scene testified that fresh chips found in the

concrete indicated “somebody pointing down at somebody that had fallen and

then continuing to shoot.”

       When Gibbs awoke in the hospital, he heard that the person he was

fighting with was someone known as “Big Mike.” Other witnesses also testified

that they later heard the name “Big Mike” in connection with the fight.

       During trial, the State introduced an in-car video from Officer Barker’s

patrol car (IC video). Officer Barker had, about six minutes before the shooting,

parked his car across South Washington Street to block traffic. He parked his

car so that it was facing north into the parking lot. Thus, the IC video captured

certain events occurring in the parking lot before and after the fight and the

shooting. The IC video does not, however, capture the part of the alley where

the shooting occurred.

       The State also introduced a second video (Weyerhaeuser video) from a

surveillance camera mounted on the Weyerhaeuser building, which is located

across the street to the south of the parking lot. The Weyerhaeuser video

captures the eastern part of the parking lot, the alley entrance where the fight

occurred, and the southwest corner of the Fuel building. The Weyerhaeuser

video was taken from a slightly higher perspective than the IC video; however, its

view of the parking lot begins essentially where the IC video’s view ends. That

is, if a person were to walk eastward across the parking lot toward the alley and

the Fuel building, that person would be seen first on the IC video, walking from


                                         7
No. 78398-0-1/8

left to right. That person would then disappear from the right side of the IC

video’s frame and appear on the left side of the Weyerhaeuser video’s frame at

approximately the same time.1

           In the IC video, a Camaro, which Cox later testified was his, can be seen

parked in the parking lot facing Officer Barker’s patrol car. Also seen in the IC

video, about four minutes before the shooting, are two men, one of whom Cox

later identified as himself, walking together in the parking lot. Ccx is wearing

black pants and a black jacket with white lettering on the back. The other man is

heavier-set and wearing a short-sleeved black shirt and light pants. About a

minute and a half before the shooting (at 2:16:13 a.m. on the IC video), Cox can

be seen walking by himself across the parking lot away from his Camaro toward

the alley. Before he gets there, he turns around and begins walking back toward

the Camaro. On his way there, at 2:16:24 a.m., he passes a heavier-set man

wearing a short-sleeved black shirt and light pants who is walking the other way,

toward the alley. The heavier-set man continues walking toward the alley, and

just after 2:16:29 a.m., he stops at the very right edge of the IC video and pauses

for about 10 seconds before disappearing from the IC video’s frame.

       Meanwhile, at 2:16:30 a.m. on the Weyerhaeuser video, what appears to



       I Both the IC video and the Weyerhaeuser video are time stamped, and
their time stamps are consistent within one second of one another. For example,
a man wearing a reddish hat and sweatshirt can be seen running west away from
the shooting and disappearing from the left side of the Weyerhaeuser video at
2:17:48 a.m., according to that video’s time stamp. The same man appears on
the right side of the IC video, still running away from the shooting, just before the
IC video’s time stamp (which displays only every two to three seconds) flashes
2:17:48 a.m.
                                           8
 No. 78398-0-1/9

be the same, heavier-set man can be seen walking toward the alley and stopping

next to a car. He pauses for about 10 seconds before crossing in front of the car,

continues walking toward the alley, and disappears behind a utility box. About

six seconds later, what appears to be the same man reemerges from behind the

utility box, still walking toward the alley, and crosses the alley in front of a black

SUV that has just driven down the alley to the alley entrance. The man then

stops next to two people—who Gibbs later identified as himself and Pinder—at

the southwest corner of the Fuel building and appears to begin talking to them.

The three appear to keep talking as they move in front of the black SUV, which is

still stopped at the alley entrance. At 2:17:16 a.m., the heavier-set man moves

rapidly toward Gibbs and Pinder, and at 2:17:23 a.m., a fight breaks out.

Although the Weyerhaeuser video has no audio, it is apparent that the fight has

caught the attention of many people, including a number of individuals walking

along the south side of the street, who turn to look in the fight’s direction.

       Turning back to Cox and the IC video: After Cox passes the heavier-set

man in the parking lot at 2:16:24 a.m. as Cox walks back toward his car, he

continues walking toward the Camaro and then opens the trunk. The trunk

remains open for about 15 seconds until Cox closes it and begins walking back

across the parking lot toward the alley. He is still wearing a black jacket with

white lettering on the back and black pants. Just before the IC video’s time

stamp displays 2:17:24 a.m., i.e., just after the fight breaks out in the alley, Cox,

still walking toward the alley, disappears from the right-hand side of the IC

video’s frame.


                                          9
 No. 78398-0-1/10

       At about the same time, a man enters the frame of the Weyerhaeuser

video from the left, walking across the parking lot toward the alley. As he

continues walking toward the alley, it is apparent that he is wearing a black jacket

with white lettering on the back. When the prosecutor played this portion of the

Weyerhaeuser video for Cox during his testimony and asked if he saw “that

individual with the white lettering on the back,” Cox responded, “No.”

       The man with the black jacket disappears behind the utility box at 2:17:28

a.m. About six seconds later, what appears to be the same man emerges from

behind the utility box, walks into the alley where the fight continues, and extends

his arm out in front of him. The white lettering on the back of his jacket is visible,

though illegible, as he does so. The time stamp on the Weyerhaeuser video

displays 2:17:39 a.m. Meanwhile, on the IC video, a series of 12 bangs can be

heard, concluding just after the time stamp flashes 2:17:40 a.m. On the

Weyerhaeuser video, the man lowers his arm at 2:17:41 a.m. and moves back

toward the parking lot. People walking on the south sidewalk across the street

from the alley begin to duck and run. About five seconds later, Cox is seen on

the IC video running away from the alley across the parking lot to his Camaro,

where Officer Barker ultimately arrests him.

       Cox denied being the apparent shooter seen extending his arm in the

Weyerhaeuser video. He testified that when he was seen in the IC video

opening his trunk, it was to get a couple of “little airplane alcohol” shots from a

birthday gift basket that his mother had bought him. He testified that when he

disappeared from the frame of the IC video (at about 2:17:24 a.m.), he was


                                          10
 No. 78398-0-I/I I

 headed back toward the front of the club when he ran into a friend, Leondis

Major. He then opened and drank a shot and offered another one to Major.

When asked what happened next, Cox testified, “I didn’t get all the way in the

club. I got to the first part of the alley and that’s when the shots went off.” He

recalled that he then “hit the deck, hit face down on the ground.” He testified that

when he was on the ground, some time passed and then he remembered seeing

a gun being tossed toward him. He looked up and saw “a guy running north up

the alley” who said “Grab it’ or ‘Pick it up’ or something like that.” Cox testified

that he then picked up the gun, ran back toward his car, and dumped the gun

there. Cox testified that he did not recognize the person who tossed the gun to

him but that it was a black male wearing a jacket similar to his. He also testified

that he was not aware that there was a fight going on.

       Cox testified that although he and Gibbs knew people in common, he did

not know Gibbs. Cox also testified on direct examination that he did not know

Big Mike, who was later identified as Mike Williams. Specifically, Cox testified

that although he had heard of Big Mike because “[h]e has some type of rep in the

streets[,]” that was “about it” and he “d[id}n’t know who he [wa]s.” When asked

on direct whether he could “put a face to” Big Mike’s name, Cox answered no.

       On cross-examination, Cox confirmed his testimony that the shooter ran

up the alley. Cox also reiterated that he did not know Mike Williams or anyone

named Big Mike and that he had no connection “at all” with Big Mike. When

shown a picture of Mike Williams’s identification, Cox testified that “[n]ow that you

put a face to him, I’ve seen him around” but continued to insist that he did not


                                         II
 No. 78398-0-1/12

know him personally. The State then showed Cox a photograph, dated February

2014, from Cox’s Instagram account. In it, Ccx appears with four other men, one

of whom Ccx acknowledged was Big Mike. Cox also volunteered that the person

standing next to Big Mike in the photo was Big Mike’s cousin and ultimately

acknowledged being “real good friends with [Big Mike’s] cousin.”

       During closing, the prosecutor played the IC video and argued as follows:

               [PROSECUTOR]: You can see him walking right here in the
        middle of the street with this man. This man who is wearing a black
       short-sleeved shirt and lighter-colored pants that appear to be blue
       jeans on this screen. They’re walking together and they appear to
       be talking. They stop next to this vehicle together and they linger
       there for a few seconds.
               They clearly know each other. This man, this bigger,
       heavier-set man wearing the short-sleeved black shirt and the
       lighter-colored pants, the interesting thing about this man is that this
       is the same man who, four minutes later, picks a fight with Alden
       Gibbs.

Ccx’s counsel objected, stating, “[T]here’s no evidence of that.” The trial court

overruled the objection, stating, “This is argument.” Later, during her rebuttal

closing, the prosecutor argued as follows:

              Defense counsel told you if you had any remaining
      questions, that’s reasonable doubt; that if you think there are things
      that the police should have done that they did not do, that’s
      reasonable doubt; but that’s not what your jury instructions say.
      They say that in order to convict, the State has to prove, beyond a
      reasonable doubt, the elements of the crime.

             The standard of proof in this case is “beyond a reasonable
      doubt,” and it is the same standard that is applied in every criminal
      case across the State of Washington and [buries convict on that
      standard every day.

Cox’s counsel again objected, saying, “I’m going to object to the suggestion that

it’s okay to convict Mr. Cox because other [ ]juries convict other people. That’s


                                         12
No. 78398-0-1/13

not appropriate argument.” The trial court then said to the jury, “The jury has the

instructions. You’ll decide the case based on the instructions provided.”

          The jury found Ccx guilty of attempted murder in the first degree and guilty

of assault in the first degree, in each case while armed with a firearm. The trial

court later vacated the assault conviction.

       After the verdict was announced, Ccx learned that Officer Hunt, who had

testified at trial, had been suspended in 2014 for using a racial slur while

pursuing an African American suspect in October 2013. Cox moved for a new

trial, arguing that the State’s failure to disclose Officer Hunt’s disciplinary history

constituted a reversible Brady2 violation. Cox also argued that the trial court’s

exclusion of Cox’s statement that someone gave him the gun to hide violated his

right to present a defense.

       The trial court denied the motion and sentenced Cox to a total of 270

months in confinement. Ccx appeals.

                                      ANALYSIS

                              Sufficiency of the Evidence

       Ccx argues that the evidence presented at trial was insufficient to support

a finding that he had premeditated intent to cause Gibbs’s death. We disagree.

      To satisfy the Fourteenth Amendment’s due process guarantee, the State

“bears the burden of proving every element of every crime beyond a reasonable

doubt.” U.S. C0NsT. amend. XIV; State v. Chacon, 192 Wn.2d 545, 549, 431

P.3d 477 (2018). When a defendant challenges the sufficiency of the evidence


      2   Bradyv. Maryland, 373 U.S. 83, 83S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

                                          13
No. 78398-0-1/14

presented to meet this burden, “he or she admits the truth of all of the State’s

evidence.” State v. Cardenas-Flores, 189 Wn.2d 243, 265, 401 P.3d 19 (2017).

“In such cases, appellate courts view the evidence in the light most favorable to

the State, drawing reasonable inferences in the State’s favor.” Cardenas-Flores,

189 Wn.2d at 265-66. “Evidence is sufficient to support a guilty verdict if any

rational trier of fact, viewing the evidence in the light most favorable to the State,

could find the elements of the charged crime beyond a reasonable doubt.”

Cardenas-Flores, 189 Wn.2d at 265.

       “A person is guiltyof an attempt to commit a crime if, with intent to commit

a specific crime, he or she does any act which is a substantial step toward the

commission of that crime.” RCW 9A.28.020(1) (emphasis added). Thus, to

convict Cox of attempted first degree murder, the State was required to prove

that Cox intended to commit first degree murder. This, in turn, required the jury

to find that Cox intended to, “[w]ith a premeditated intent to cause the death of

another person[,]” cause the death of another person. RCW 9A.32.030(1)(a).

       Premeditation “has been defined as ‘the deliberate formation of and

reflection upon the intent to take a human life.” State v. Gentry, 125 Wn.2d 570,

597, 888 P.2d 1105 (1995) (quoting State v. Robtoy, 98 Wn.2d 30, 43, 653 P.2d

284 (1982)). “It has further been held to involve ‘the mental process of thinking

beforehand, deliberation, reflection, weighing or reasoning for a period of time,

however short” Gentry, 125 Wn.2d at 597-98 (quoting State v. Ollens, 107

Wn.2d 848, 850, 733 P.2d 984 (1987)). Nevertheless, premeditation “must

involve more than a moment in point of time.” RCW 9A.32.020(1).


                                         14
No. 78398-0-1/15

       “Premeditation may be proved by circumstantial evidence where the

inferences drawn by the jury are reasonableand the evidence supporting the

jury’s finding is substantial.” Gentry, 125 Wn.2d at 598. “Evidence is substantial

if it is sufficient to convince a reasonable person of the truth of the finding.” State

v. Rankin, 151 Wn.2d 689, 709, 92 P.3d 202 (2004). “[S]ufficient evidence to

infer premeditation has been found where (1) multiple wounds were inflicted; (2)

a weapon was used; (3) the victim was struck from behind; and (4) there was

evidence of a motive.” Gentry, 125 Wn.2d at 599.

       Here, when the evidence—and particularly the video evidence—is viewed

in the light most’ favorable to the State, there was sufficient evidence to support a

finding of premeditation. Specifically, a jury could reasonably have inferred from

the IC video that Ccx knew the heavier-set man wearing a black short-sleeved

shirt and light pants with whom Cox was walking in the parking lot about four

minutes before the shooting. A jury could also have inferred that this is the same

heavier-set man who, a few minutes later, is seen in the IC video walking across

the parking lot toward the alley. As discussed, just after 2:16:29 a.m. on the IC

video, that man pauses at the very right-hand edge of the frame, then disappears

off screen about 10 seconds later. Accordingly, a jury could reasonably have

inferred that this is the same man seen on the left side of the Weyerhaeuser

video pausing at about 2:16:30 a.m. before continuing toward the alley about 10

seconds later, that this same man then stopped to talk to Gibbs and Pinder at the

southwest corner of the Fuel building, and that he and Gibbs then got into a fight.

      Additionally, Ccx does not dispute that the man with whom Gibbs was


                                         15
No. 78398-0-1/16

fighting was Big Mike, and the jury could reasonably have inferred that Cox was

closer to Big Mike than he initially let on. Indeed, a reasonable inference from

Cox’s substantially undermined testimony that he had no connection “at all” with

Big Mike is that Cox had a reason to lie about the nature of their relationship. Ct

State v. Coreland, 130 Wn.2d 244, 291, 922 P.2d 1304 (1996) (explaining, in the

context of closing arguments, that reasonable inferences from the evidence may

include those about the defendant’s credibility). The jury could also reasonably

have inferred that when Cox returned to his Camaro about a minute before the

shooting, he retrieved a gun from the trunk.

       Finally, a jury could reasonably have inferred that Cox was the man

wearing a black jacket with white lettering seen entering the frame of the

Weyerhaeuser video from the left just as Gibbs and Big Mike began to fight, that

he—like others in the vicinity—was aware of the fight as he walked toward it, and

that he shot Gibbs multiple times in the back and continued to shoot after Gibbs

fell to the ground. In short, there was evidence that Cox procured a weapon, had

a motive, and pulled the trigger multiple times. This evidence, viewed in the light

most favorable to the State, was sufficient for a rational trier of fact to find that

Cox deliberated, as he walked up to the fight, about taking the life of the person

who was fighting with his friend, Big Mike. Thus, the evidence was sufficient to

support a finding that Cox acted with premeditated intent to kill Gibbs. Ct Ollens,

107 Wn.2d at 853 (opportunity to deliberate, combined with infliction of numerous

knife wounds, motive, and procurement of weapon, sufficient to submit

premeditation to jury).


                                           16
No. 78398-0-1/17

       Cox disagrees, relying in large part on State v. Hummel, 196 Wn. App.

329, 383 P.3d 592 (2016). But Hummel is readily distinguishable. There, Alice

Hummel (Alice) disappeared on October 18, 1990, shortly after her daughter,

S.K., told Alice that Alice’s husband, Bruce Hummel, had sexually abused her.

Hummel, 196 Wn. App. at 332-33. Hummel later told S.K. and her siblings that

Alice had taken a job in California. Hummel, 196 Wn. App. at 333. Still later, he

told them that Alice had received a promotion and moved to Texas. Hummel,

196 Wn. App. at 333.

       Sometime in 2001, S.K.’s older sister became suspicious and filed a

missing person report. Hummel, 196 Wn. App. at 333, 334. Detectives

interviewed the siblings and then searched for, but never found, Alice’s body.

Hummel, 196 Wn. App. at 334-35. In 2004, detectives interviewed Hummel

about deposits of disability checks that Alice continued to receive after her

disappearance. Hummel, 196 Wn. App. at 335. Hummel admitted that, for a

period of time, the retirement system in Alaska, where Alice once worked,

continued to deposit disability checks for Alice, and he withdrew money from the

account into which they were deposited. Hummel, 196 Wn. App. at 335.

Hummel later told detectives that Alice committed suicide on October 18, 1990,

and that he disposed of her body and took steps to cover up her suicide,

ostensibly for the sake of the children. Hummel, 196 Wn. App. at 341-42.

      The State charged Hummel with first degree murder, and a jury convicted

him as charged. Hummel, 196 Wn. App. at 352. On appeal, Hummel argued

that the evidence was insufficient to support a finding of premeditation. Hummel,


                                        17
 No. 78398-0-1/18

 196 Wn. App. at 352. The State disagreed, contending that “the jury could infer

that after Alice confronted Hummel [about his abusing S.K.}, he formed the intent

to kill her.” Hummel, 196 Wn. App. at 356. We rejected the State’s argument,

observing that “there is no evidence to show that Hummel knew that in October

 1990, S.K. disclosed to Alice that he had been molesting S.K. or that Alice ever

confronted Hummel.” Hummel, 196Wn. App. at~356 (emphasis added).

Specifically, “no witness testified that Alice confronted Hummel about the

molestation.” Hummel, 196 Wn. App. at 356 (emphasis added). We also

observed that even if the evidence supported a reasonable inference of a

confrontation, “there is no evidence to show deliberation or reflection before

Hummel killed Alice.” Hummel, 196 Wn. App. at 356 (emphasis added).

Specifically, the evidence that Hummel disposed of Alice’s body and fraudulently

obtained her disability checks after she died was evidence of guilt, but not

probative of premeditation. Hummel, 196 Wn. App. at 356-57. In short, “the

State presented no evidence of motive, planning, the circumstances or the

method and manner of death, or the deliberate formation of the intent to kill Alice

,beforehand.” Hummel, 196 Wn. App. at 358 (emphasis added).

       Here, by contrast, the State did present such evidence. Specifically, and

as discussed, there was evidence of motive because a jury could reasonably

infer that Gibbs had been fighting with Cox’s friend, Big Mike. There also is

evidence of the manner and method of the shooting, i.e., that Gibbs was shot

from behind, that the shooter continued shooting after Gibbs fell, and that the

shooter would have had to pull the trigger multiple times given that the handgun


                                        18
 No. 78398-0-1/19

recovered was semi-automatic. Therefore, Cox’s reliance on Hummel is

misplaced.

       Cox next argues that there was insufficient evidence of premeditation

because the shooting itself took only three seconds. He notes that in State v.

BinQham, 105 Wn.2d 820, 824, 828, 719 P.2d 109 (1986), our Supreme Court

held that even if it takes three to five minutes to effect death by manual

strangulation, “manual strangulation alone is insufficient evidence to support a

finding of premeditation.” It follows, Cox argues, that three seconds of shooting

is insufficient. But in Bing ham, “no evidence was presented of deliberation or

reflection before or during the strangulation, only the strangulation.” 105 Wn.2d

at 827. Here, as discussed, there was evidence—apart from the shooting itself—

from which the jury could reasonably have inferred deliberation or reflection.

Furthermore, manual strangulation involves one continuous act, and “[h]olding a

hand over someone’s mouth or windpipe does not necessarily reflect a decision

to kill the person, but possibly only to quiet her or him.” Binqham, 105 Wn.2d at

826. The same cannot be said about shooting at a person multiple times with a

semi-automatic pistol. Cox’s argument fails.

                                  Jury Instructions
       Ccx argues that reversal is required because the court’s to-convict

instruction failed to instruct the jury on each element of attempted first degree

murder. We disagree.

      As an initial matter, the State argues that Cox waived any error because

he did not challenge the jury instructions at trial and cannot demonstrate that


                                         19
No. 78398-0-1120

they relieved the State of its burden. But under RAP 2.5(a)(3), “[a] defendant

may   .   .   .   raise an error for the first time on appeal if it is of constitutional

magnitude[,]” and “[t]he issue of omission of an element from [the to-convict]

instruction is of sufficient constitutional magnitude to warrant review when raised

for the first time on appeal.” State v. Aumick, 126 Wn.2d 422, 429, 894 P.2d

1325 (1995); State v. Mills, 154 Wn.2d 1, 6, 109 P.3d 415 (2005). Therefore, we

address the merits of Cox’s claim of instructional error.

              “The due process clause of the Fourteenth Amendment to the United

States Constitution requires that jury instructions adequately convey to the jury

that the State bears the burden of proving ‘every element of the crime charged

beyond a reasonable doubt.” State v. Imokawa, No. 96217-1, slip op. at 6

(Wash. Oct. 10, 2019), http://www.courts.wa.gov/opinions/pdf/9621 71 .pdf

(quoting State v. Brown, 147 Wn.2d 330, 339, 58 P.3d 889 (2002)). “When a

defendant challenges the adequacy of specific jury instructions informing the jury

of the State’s burden of proof, [this court] review[s] the challenged instructions de

novo.” Imokawa, slip op. at 6-7.

          As a general matter, “[j]ury instructions are sufficient if they are supported

by substantial evidence, allow the parties to argue their theories of the case, and

when read as a whole properly inform the jury of the applicable law,’ and we

review jury instructions ‘in the context of the instructions as a whole.” Mills, 154

Wn.2d at 7 (alteration in original) (quoting State v. Clausing, 147 Wn.2d 620,

626, 56 P.3d 550 (2002); State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245

(1995)). That said, “the reviewing court generally ‘may not rely on other


                                                   20
No. 78398-0-l121

instructions to supply [an] element missing from the ‘to-convict’ instruction.”

Mills, 154 Wn.2d at 7 (quoting State v. DeRyke, 149 Wn.2d 906, 910, 73 P.3d

1000 (2003)).

       To that end, RCW 9A.28.020(1) defines the elements of criminal attempt

and provides, “A person is guilty of an attempt to commit a crime if, with intent to

commit a specific crime, he or she does any act which is a substantial step

toward the commission of that crime.” In other words, “an attempt crime contains

only two elements—[1] intent to commit a specific crime and [2] taking a

substantial step toward the commission of that crime.” State v. Nelson, 191

Wn.2d 61, 74, 419 P.3d 410 (2018); ~~J~DeRyke, 149 Wn.2d at 910-11.

       Here, the court’s to-convict instruction, which is consistent with WPIC

I 00.02,~ instructed the jury as follows:

              To convict the defendant of the crime of attempted murder in
      the first degree, as charged in Count I, each of the following
      elements of the crime must be proved beyond a reasonable doubt:
              (1) That on or about January 16, 2017, the defendant did an
      act that was a substantial step toward the commission of murder in
      the first degree;
              (2) That the act was done with the intent to commit murder in
      the first degree; and
              (3) That the act occurred in the State of Washington.
              If you find from the evidence that each of these elements
      has been proved beyond a reasonable doubt, then it will be your
      duty to return a verdict of guilty as to Count I.
              On the other hand, if, after weighing all the evidence, you
      have a reasonable doubt as to any one of these elements, then it
      will be your duty to return a verdict of not guilty as to Count ~



      ~ I IA WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:
CRIMINAL 100.02, at 434 (4th ed. 2016) (WPIC).
      4WPIC 100.02 provides:

                                            21
No. 78398-0-1/22


The very next instruction, Instruction 4, defined murder in the first degree: “A

person commits the crime of murder in the first degree when, with a premeditated

intent to cause the death of another person, he or she causes the death of such

person or of a third person.”

       The court~s instructions were adequate. Specifically, the to-convict

instruction set forth both statutory elements of attempt; no elements were missing

from the instruction. Additionally, when taken together, the instructions informed

the jury of the applicable law, were not misleading, and permitted Cox to argue

his theory of the case. Therefore, reversal is not required.

       DeRyke is instructive. In that case, our Supreme Court reiterated that the

crime of attempt has only two elements. DeRyke, 149 Wn.2d at 910. It also

expressly approved of instructing the jury on attempt using WPIC 100.02 and

using a separate instruction to set forth the elements of the crime allegedly

attempted. DeRyke, 149 Wn.2d at 911. Indeed, the Supreme Court itself later



              To convict the defendant of the crime of attempted (fill in
      crime), each of the following elements of the crime must be proved
      beyond a reasonable doubt:
              (1) That on or about (date), the defendant did an act that
                  was a substantial step toward the commission of (fill in
                  crime);
              (2) That the act was done with the intent to commit (fill in
                  crime); and
              (3) That the act occurred in the State of Washington.
              If you find from the evidence that each of these elements
      has been proved beyond a reasonable doubt, then it will be your
      duty to return a verdict of guilty.
              On the other hand, if, after weighing all the evidence, you
      have a reasonable doubt as to any one of these elements, then it
      will be your duty to return a verdict of not guilty.

                                        22
No. 78398-0-1/23

characterized DeRyke as “reiterat[ing].   .   .   that an attempt instruction does not

have to provide the elements of the crime allegedly attempted.” Nelson, 191

Wn.2d at 74 (emphasis added). Here, by instructing the jury on attempt through

WPIC 100.02 and using a separate instruction to set forth the elements of first
degree murder, the trial court followed the same approach expressly approved of

in DeRyke. This was not error. Indeed, we have relied on DeRyke to reject the

argument that Cox makes here. See, ~ State v. Jefferson, 199 Wn. App. 772,

809-10, 401 P.3d 805 (2017), rev’d on other cirounds, 192 Wn.2d 225, 429 P.3d

467 (2018); State v. Boswell, 185 Wn. App. 321, 336-37, 340 P.3d 971 (2014);

cf. State v. Reed, 150 Wn. App. 761, 772, 208 P.3d 1274 (2009) (rejecting the

same argument and stating that it “conflates the intent necessary to prove an

attempt with that necessary to prove first degree murder”).

       Cox relies on Statev. Vanqer~en, 125 Wn.2d 782, 888 P.2d 1177 (1995),

for the proposition that premeditation is an essential element of attempted first

degree murder that must be included in the to-convict instruction. But his

reliance on Vangerpen is misplaced for two reasons.

       First, Vancierpen did not hold that premeditation is an essential element of

attempted first degree murder. Rather, in Vanqerien, the State conceded that

premeditation was an essential element; therefore, that issue simply was not

before the court. See Vancierpen, 125 Wn.2d at 785-86; see also Boswell, 185

Wn. App. at 336 (“Vanger~en does not articulate what the essential elements of

attempted first degree murder are.”).

      Second, Vanqerpen involved a challenge to a charging document, not a


                                        23
 No. 78398-0-1/24

challenge to a jury instruction. 125 Wn.2d at 787. “The rule that a charging

document must include all essential elements of a crime is grounded in the

constitutional requirement that defendants be informed of the nature and cause

of the accusation against them, in addition to due process concerns regarding

notice.” State v. Taylor, 140 Wn.2d 229, 236, 996 P.2d 571 (2000). Meanwhile,

“‘a to convict instruction must contain all of the elements of the crime because it

serves as a yardstick by which the jury measures the evidence to determine guilt

or innocence.” DeRyke, 149 Wn.2d at 910 (internal quotation marks omitted)

(quoting State v. Smith, 131 Wn.2d 258, 263, 930 P.2d 917 (1997)). In other

words, the to-convict instruction ensures “that the jury is not left guessing at the

meaning of an element of the crime and that the State is not relieved of its

burden of proving each element of the crime.” State v. Saunders, 177 Wn. App.

259, 261, 311 P.3d 601 (2013). Therefore, “the fact that a portion of a definition

must be included in a[]   .   .   .   [charging document] does not mean it is essential to

a to-convict instruction.” Saunders, 177 Wn. App. at 270. Thus, Vancierpen

does not control.

       Cox next argues that the instructions relieved the State of its burden

because “the jury was instructed to find Mr. Cox guilty if he had the intent to

accomplish the death of Mr. Gibbs and took a substantial step toward causing his

death.” Put another way, he contends that the jury was instructed not on

attempted first degree murder, but on attempted second degree murder. But this

is not the case. Specifically, part (2) of the to-convict instruction required the jury

to find that “the act was done with the intent to commit murder in the first degree.”


                                                 24
No. 78398-0-1/25

(Emphasis added.) When this part of the instruction is read in conjunction with

the definition of murder in the first degree, the jury was instructed to find that “the

act was done with the intent to [with a premeditated intent to cause the death of

another person, cause the death of such person or of a third person].” In other

words, the jury could not have convicted Cox of attempted first degree murder

without finding that he intended to cause the death of another person with

premeditated intent to cause the death of another person. Therefore, Cox’s

argument fails.

       Ccx next argues that State v. Aumick, 126 Wn.2d 422, is instructive here.

But in Aumick, the to-convict instruction failed to instruct the jury that an attempt

to commit a crime requires proof of intent. 126 Wn.2d at 429. Instead, it defined

attempt solely as “taking a substantial step in the commission of a crime.”

Aumick, 126 Wn.2d at 429 n.20. Here, by contrast, part (2) of the to-convict

instruction instructed the jury to find “[t]hat the act was done with the intent to

commit murder/n the first degree.” (Emphasis added.) Therefore, Aumick is

distinguishable and does not control.

       Ccx next argues that the to-convict instruction “was improper because it

was nonsensical.” Specifically, he contends that it “instructed [the jury] to convict

Mr. Cox if he intended to form premeditated intent to kill Mr. Gibbs, and took a

substantial step toward doing so.” (Emphasis added.) This argument is

unpersuasive for two reasons.

       First, and as discussed, when read together, the to-convict instruction and

the definition of first degree murder—which was in the very next instruction—


                                          25
No. 78398-0-1/26

instructed the jury to find that Cox intended to cause the death of another person

with premeditated intent to cause the death of another person. A reasonable

juror would not have interpreted the instruction in the strained way that Cox does.

See State v. Miller, 131 Wn.2d 78, 90, 929 P.2d 372 (1997) (jury instructions are

interpreted in the way “a reasonable juror could have interpreted the instruction”).

                 Second, Cox’s reliance on State v. Smith, 131 Wn.2d 258, to support his

argument is misplaced. In Smith, which involved a conspiracy charge, the to-

convict instruction should have required the jury to find that the defendant agreed

with his alleged co-conspirators to engage in conduct constituting the crime of

first degree murder. 131 Wn.2d at 262. Instead, the instruction required the jury

to find that the defendant agreed with his alleged co-conspirators “to engage

in   .   .   .   the performance of conduct constituting the crime of Conspiracy to Commit

Murder in the First Degree[.]” Smith, 131 Wn.2d at 262 (alterations in original).

Our Supreme Court held that this instruction was “constitutionally defective

because it purports to be a complete statement of the law yet states the wrong

crime as the underlying crime which the conspirators agreed to carry’ out.” Smith,

131 Wn.2d at 263 (emphasis added).

                 The to-convict instruction here did not suffer from the same defect.

Rather, it stated the correct crime, i.e., first degree murder, as the underlying

crime that Cox allegedly attempted to carry out. Moreover, the instruction in

Smith was, as a result of the defect, entirely circular: It instructed the jury to find

the defendant guilty of conspiracy if he engaged in conduct constituting

conspiracy. Thus, as the Smith court explained, the instruction “fails to state the


                                                  26
No. 78398-0-1/27

law completely and correctly.” 131 Wn.2d at 263. Here, by contrast, the to-

convict instruction completely and correctly stated the law. Specifically, it

required the jury to find that Cox “did an act that was a substantial step toward

the commission of murder in the first degree” and that “the act was done with the

intent to commit murder in the first degree.” (Emphasis added.) As discussed,

when read together with the next instruction defining murder in the first degree,

the instruction required the jury to find that Cox intended to cause the death of

another person with premeditated intent to cause the death of another person.

The instruction did not relieve the State of its burden.

                               Impeachment Evidence

          Cox argues that a new trial is warranted because the State withheld

impeachment evidence regarding Officer Hunt, the only witness who testified that

she saw the shooting and that she did not lose sight of the shooter from the time

of the shooting until the time that Officer Barker arrested him. Cox, who is

African American, did not learn until after the verdict that Officer Hunt had been

disciplined for using a racial slur while pursuing an African American suspect and

then attempting to justify it. We conclude that a new trial is not warranted

because this evidence was not material when viewed in the context of the entire

record.

          Under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215

(1963), “the prosecution has a duty to seek out exculpatory and impeaching

evidence held by other government actors. State v. Davila, 184 Wn.2d 55, 71,

357 P.3d 636 (2015). To establish a Brady violation, a defendant must establish


                                         27
No. 78398-0-1/28

three necessary elements: “(1) ‘[t]he evidence at issue must be favorable to the

accused, either because it is exculpatory, or because it is impeaching,’ (2) ‘th[e]

evidence must have been suppressed by the State, either willfully or

inadvertently,’ and (3) the evidence must be material.” Davila, 184 Wn.2d at 69

(alterations in original) (quoting Stricklerv. Greene, 527 U.S. 263, 281-82, 119 S.

Ct. 1936, 144 L. Ed. 2d 286 (1999)).

       Here, the State concedes “that it did not fulfill its duty to proactively

discover and disclose favorable evidence ‘known to the others acting on the

government’s behalf in the case, including the police.” Therefore, the only

question before this court is whether the evidence regarding Officer Hunt is

material. “Brady materiality is a legal question that is reviewed de novo.” Davila,

184 Wn.2d at 74.

       “Evidence is material under Brady ‘if there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the proceeding

would have been different.” Davila, 184 Wn.2d at 73 (internal quotation marks

omitted) (quoting Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S. Ct. 1555, 131 L.

Ed. 2d 490 (1995)). “To satisfy this standard, a defendant need not demonstrate

by a preponderance that he would have been acquitted had the suppressed

evidence been disclosed.” Davila, 184 Wn.2d at 73. “Instead, he or she must

show only that ‘the government’s evidentiary suppression undermines confidence

in the outcome of the trial.” Davila, 184 Wn.2d at 73 (internal quotation marks

omitted) (quoting Kyles, 514 U.S. at 434).

      Here, the State contends that Officer Hunt’s disciplinary record is not


                                          28
No. 78398-0-1/29

material because “the jury would have convicted Ccx even if it rejected Officer

Hunt’s testimony entirely.” In other words, the State suggests that impeachment

evidence is not material if the result of the trial would have been the same even if

the would-be impeached witness had never testified.

       But this is an inaccurate interpretation of the test for Brady materiality, and

we reject the State’s suggestion that we can determine materiality simply by

pretending that Officer Hunt had never testified. Rather, we imagine a trial in

which Officer Hunt’s past behavior had been used to impeach her and ask

whether there is a reasonable probability that the result of the proceeding would

have been different. We conclude that there is not.

       In reaching our conclusion, we underscore that this court takes issues of

racial bias seriously, and we are deeply troubled by Officer Hunt’s past behavior

and by the State’s failure to disclose it before trial. We also note that it is not

difficult to imagine a case where evidence of Officer Hunt’s racial bias and her

attempts to justify her use of a racial slur would have called other aspects of the

State’s case, such as the police investigation, into serious doubt. But this is not

such a case. Here, the videos—which show Cox walking toward the alley and off

the right side of the IC video just as the apparent shooter emerges onto the left

side of the Weyerhaeuser video—constitute independent and overwhelming

evidence that Cox was the shooter. So does the testimony of Officer Barker,

who independently pursued Cox after he saw him walking, then running, away

from the scene. Indeed, Cox’s own testimony, which confirmed that he discarded

the murder weapon after the shooting, was also strong, independent evidence of


                                          29
 No. 78398-0-1/30

 his guilt. In short, because of the overwhelming, independent evidence of Cox’s

guilt, there is not a reasonable probability that the result of the trial would have

been different had evidence of Officer Hunt’s disciplinary record been disclosed.

Therefore, that evidence was not material.

        Cox disagrees. He contends that the evidence was material because

“[t]he [Weyerhaeuser] video showed only that the perpetrator was wearing a

black jacket with white writing” and “everyone was wearing black” that night. He

also points out that he testified that he merely picked up the gun after it was

discarded by the shooter and that he had no reason to shoot Gibbs given that

Gibbs was fighting with “a different person unrelated to” Cox. Finally, he

characterizes Officer Hunt as the State’s “star witness,” observing that she was

the only witness who claims to have seen Cox shoot Gibbs and that she

bolstered her credibility by touting her promotion to sergeant.

       But Cox’s argument ignores that when assessing Brady materiality, the

omitted evidence is evaluated in the context of the entire record. Davila, 184

Wn.2d at 78. To that end, the videos do not show merely that the perpetrator

was wearing a black jacket with white writing; rather, they show Cox walking in

the direction of the alley about 20 seconds before the shooting wearing a very

similar-looking jacket and disappearing from the IC video’s frame just as the

apparent shooter appears on the frame of the Weyerhaeuser video. Also as

discussed, there is evidence that Cox did have a reason to shoot Gibbs because

Gibbs was fighting with Cox’s friend. Finally, and although Officer Hunt claimed

that she did not lose sight of the shooter until the time of the shooting until he,


                                          30
 No. 78398-0-1/31

 i.e., Cox, was arrested, Officer Hunt was not the State’s “star”—rather, the videos

were. Cox’s arguments are not persuasive.

       Cox next relies on United States v. Price, 566 F.3d 900 (9th Cir. 2009), to

contend that the evidence was material. But Price is readily distinguishable on

its facts. There, Delray Price was convicted of being a felon in possession of a

firearm after officers found a gun hidden beneath the driver’s seat of a car in

which Price was riding in the rear. Price, 566 F.3d at 902. The evidence that

“sealed [Price’s] fate” was testimony from Antoinette Phillips, who testified that

about 15 minutes before Price was pulled over, she saw a gun tucked into the

waistband of Price’s pants. Price, 566 F.3d at 902. What neither Price nor his

counsel knew was that Phillips “ha[d] a lengthy history of run-ins with the   .




police that suggests that she has little regard for truth and honesty.” Price, 566

F.3d at 903.

       In concluding that this undisclosed history was material under Brady, the

Ninth Circuit observed that Phillips’s testimony was one of only three items of

evidence introduced by the prosecution, the other two of which were “significantly

undermined” by Price’s counsel’s questioning at trial. Price, 566 F.3d at 913.

Thus, Phillips was “indisputably ‘the prosecution’s star witness[,]” and the court

characterized her testimony as critical to the prosecution’s case. Price, 566 F.3d

at 914 (quoting Carric~erv. Stewart, 132 F.3d 463, 480 (9th Cir. 1997)).

       Here, and as discussed, Officer Hunt’s testimony was not similarly critical

given the strong independent evidence presented by the videos and other

testimony. Furthermore, unlike in Price, the other evidence was not “significantly


                                        31
 No. 78398-0-1/32

undermined.” 566 F.3d at 913. Therefore, Cox’s reliance on Price is misplaced.

                      Exclusion of Cox’s Exculpatory Statement

       Cox argues that reversal is required because the trial court erred by

excluding, as hearsay, his statement to Officer Barker that someone gave him

the gun to hide. Because the exclusion of Cox’s statement was harmless, we

disagree.

       “The erroneous exclusion of evidence is harmless if, within reasonable

probabilities, the error did not affect the result of the trial.” City of Seattle v.

Personeus, 63 Wn. App. 461, 465, 819 P.2d 821 (1991). Here, the trial court

excluded Cox’s statement because it determined that it “has [no] relevance for a

non-hearsay purpose.” In other words, the trial court excluded Cox’s statement

either (1) because it was hearsay or (2) because it was not relevant. We do not

decide whether exclusion of Cox’s statement was error because even if it was,

that error was harmless.

       Specifically, there was overwhelming evidence that Cox was the shooter.

As discussed, the IC video shows Cox walking toward the alley wearing a black

jacket with white lettering on the back and disappearing from the right side of the

IC video’s frame. Just a moment later, the apparent shooter emerges onto the

left side of the Weyerhaeuser video, walking toward the alley. Given this

convincing evidence that Cox was the shooter, the exclusion of his statement did

not, within reasonable probabilities, affect the result of the trial. Therefore,

reversal is not required.

       Cox disagrees. He contends that the exclusion of his statement deprived


                                           32
 No. 78398-0-1/33

 him of his right to present a defense and, therefore, this court must apply a

constitutional harmless error analysis to determine if reversal is required. He

relies on State v. Jones, 168 Wn.2d 713, 230 P.3d 576 (2010), and State v.

Duarte Vela, 200 Wn. App. 306, 402 P.3d 281 (2017), to support his argument,

but his reliance on these cases is misplaced.

       In both Jones and Duarte Vela, the evidence excluded by the trial court

was highly relevant to the defendant’s defense. In Jones, a rape case, the trial

court barred the defendant from testifying that the sexual contact was consensual

and took place at an all-night sex party. 168 Wn.2d at 717. And in Duarte Vela,

a murder case, the trial court excluded evidence that the defendant acted in self-

defense. 200 Wn. App. at 320. In each case, the trial court’s ruling was later

determined to have deprived the defendant of his right to present a defense.

Jones, 168 Wn.2d at 717; Duarte Vela, 200 Wn. App. at 320. And in each case,

the appellate court explained that this was so because the evidence had high

probative value. Jones, 168 Wn2d at 724; Duarte Vela, 200 Wn. App. at 326.

Indeed, in Jones, the evidence constituted the defendant’s “entire defense.” 168

Wn.2d at 721. And in Duarte Vela, the evidence “was central to [the defendant]’s

ability to explain the reasonableness of his fear.” 200 Wn. App. at 320.

       Here, Cox’s defense theory was that the “police simply chose the wrong

person to arrest” and that “because they thought they had found what they were

looking for, they just quit looking.” But Cox’s statement that someone gave him

the gun to hide is, at best, only minimally—not highly—probative of whether

officers should have conducted further investigation. It also was not central to his


                                        33
 No. 78398-0-1/34

defense because its exclusion did not prevent him from telling his side of the

story or from presenting any evidence that he was not, in fact, the shooter.

Moreover, Cox’s counsel effectively elicited testimony from several State

witnesses about additional investigation or evidence gathering that could have

occurred and additional forensic testing that could have been done. Cox’s

counsel then emphasized these alleged inadequacies in his closing argument,

summing them up with, “The police did their job badly, horribly, hopelessly

inadequately; and now they have left this with you, and now it is your job to figure

out what happened.” The exclusion of Cox’s minimally probative statement did

not prevent him from executing his defense strategy. Therefore, Jones and

Duarte Vela are not persuasive here. See State v. Arndt, No. 95396-1, slip op. at

3 1-32 (Wash. Dec. 5, 2019), htt~://wwW.courts.wa.qov/o~Jinions/jDdf/953961 .~df

(distinguishing Jones on the basis that it involved highly probative evidence

constituting the defendant’s entire defense and holding that trial court’s exclusion

of certain testimony did not violate defendant’s right to present a defense where

defendant was “able to present relevant evidence supporting her central defense

theory”).

                             Prosecutorial Misconduct

       Cox argues that a new trial is warranted because the prosecutor

committed misconduct during closing by (1) arguing facts not in evidence and (2)

trivializing the burden of proof. We disagree.

       “In closing argument, a prosecutor is afforded wide latitude to draw and

express reasonable inferences from the evidence.” State v. Robinson, 189 Wn.


                                        34
 No. 78398-0-1/35

App. 877, 893, 359 P.3d 874 (2015) (quoting State v. Reed, 168 Wn. App. 553,

 577, 278 P.3d 203 (2012)). Nevertheless, a prosecutor commits misconduct by

arguing facts not in evidence. In re Pers. Restraint of Glasmann, 175 Wn.2d

696, 705, 286 P.3d 673 (2012). A prosecutor also commits misconduct by

trivializing the State’s burden of proof, including by ‘“compar[ing] the reasonable

doubt standard to everyday decision making.” State v. Lindsay, 180 Wn.2d 423,

436, 326 P.3d 125 (2014) (quoting State v. Lindsay, 171 Wn. App. 808, 828, 288

P.3d 641 (2012)).

       “This court reviews a trial court’s decision on alleged prosecutorial

misconduct for abuse of discretion.” Robinson, 189 Wn. App. at 893. “To prevail

on a claim of prosecutorial misconduct, the defendant must establish ‘that the

prosecutor’s conduct was both improper and prejudicial in the context of the

entire record and the circumstances at trial.” State v. Thorcierson, 172 Wn.2d

438, 442, 258 P.3d 43(2011) (internal quotation marks omitted) (quoting State v.

Maciers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008)). “[This court] review[s] the

prosecutor’s conduct and whether prejudice resulted therefrom ‘by examining

that conduct in the full trial context, including the evidence presented, the context

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

argument, and the instructions given to the jury.” State v. Pinson, 183 Wn. App.

411,416,333 P.3d 528 (2014) (internal quotation marks omitted) (quoting State

v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011)).

       Here, the prosecutor should not have been as conclusory as she initially

was in asserting that the “bigger, heavier-set man wearing the short-sleeved


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No. 78398-0-1/36

black shirt and the lighter-colored pants” in the IC video was “the same man who,

four minutes later, picks a fight with Alden Gibbs.” The prosecutor also should

not have suggested that juries “convict on [the reasonable doubt] standard every

day.”

        Nevertheless, the prosecutor’s statements were not prejudicial in the

context of the entire record. Specifically, after defense counsel objected, the

prosecutor explained in further detail why her assertion about the IC video was a

reasonable inference from the evidence. And as already discussed, her

assertion was, indeed, a reasonable inference. And the prosecutor’s comment

regarding the reasonable doubt standard was made in the context of trying to

rebut defense counsel’s argument that “[t]he police did their job badly, horribly,

hopelessly inadequately,” suggesting that the jury should acquit if it believed

there was additional investigation the police could have done. Furthermore,

upon defense counsel’s objection, the trial court immediately instructed the jury

to decide the case based on the instructions provided, and there is no evidence

suggesting that the jury did not do so. Cf. State v. Brown, 132 Wn.2d 529, 618,

940 P.2d 546 (1997) (“A jury is presumed to follow instructions given.”).

Therefore, the prosecutor’s statements, though overreaching, do not require

reversal.

                                  Cumulative Error

        Cox argues that he is entitled to a new trial under the cumulative error

doctrine. We disagree.

        “Under the cumulative error doctrine, a defendant may be entitled to a new


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No. 78398-0-1/37

trial when cumulative errors produce a trial that is fundamentally unfair.” State v.

Emery, 174 Wn.2d 741, 766, 278 P.3d 653 (2012). “The application of [the]

doctrine is limited to instances when there have been several trial errors that

standing alone may not be sufficient to justify reversal but when combined may

deny a defendant a fair trial.” State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390

(2000). Thus, “[tjhe doctrine does not apply where the errors are few and have

little or no effect on the trial’s outcome.” State v. Veneqas, 155 Wn. App. 507,

520, 228 P.3d 813 (2010).

       Cox chiefly relies on Veneqas to urge this court to apply the cumulative

error doctrine here. But his reliance is misplaced. In Veneqas, Loni Venegas

was convicted of three counts of assault of a child for assaulting her step

grandson, JV. 155 Wn. App. at     sio. on appeal,   Division Two determined that

several errors had occurred at trial:

      Rather than trusting the jury to reach a proper conclusion after
      listening to dozens of witnesses over the course of a six-week trial,
      the State twice made arguments that impinged on Venegas’s
      presumption of innocence. Additionally, the trial court levied an
      excessive CrR 4.7(h)(7) discovery sanction that prevented the
      defense from potentially presenting expert testimony that JV’s chin
      injury—the basis of count Il—could not have occurred as JV
      described it. .   .Finally, the trial court failed to balance the
                            .


      prejudicial effect of “other acts” evidence against its probative
      value.

Veneqas, 155 Wn. App. at 526-27 (footnote omitted). In concluding that these

errors cumulatively warranted reversal, the court observed that the case “turned

largely on witness credibility,” that JV’s testimony was the only evidence the

State presented with regard to one of the counts, and that “had the jury heard

expert testimony that undermined JV’s version of events on one count, the jury

                                        37
No. 78398-0-1/38

might have viewed JV’s testimony with respect to the other counts in a different

light.” Veneqas, 155 Wn. App. at 526-27.

       Here, by contrast, the errors were few and had little or no effect on the

trial’s outcome. Specifically, even assuming that the trial court erred by

excluding Cox’s statement that someone gave him the gun to hide, that

statement was, as discussed, only minimally probative. And the only other error

in this case consisted of the prosecutor’s overreaching but non-prejudicial

comments in closing. Finally, although witness credibility is relevant in any case,

this was not a case that turned largely on witness credibility as was the case in

VeneQas. For these reasons, Veneqas is not persuasive.

      We affirm.




WE CONCUR:
                                                   óM~4          ~



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