      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                        c=>        -iS
                                                                                 rn
STATE OF WASHINGTON,                            NO. 68814-6-1

                                                                                  CO        CT.31.-,-.,
                    Respondent,                 DIVISION ONE                                cm"n'";;i

      v.
                                                                                      .'      —iC.'
                                                UNPUBLISHED OPINION
RONALD LEE GRAY III,

                    Appellant.                  FILED: December 23, 2013


       Leach, C.J. — Ronald Gray III appeals his conviction for attempted

murder in the first degree while armed with a deadly weapon. He claims that the

trial court violated his constitutional right to present a defense when it excluded

evidence of the complaining witness's criminal history.      Gray also alleges a

Brady1 violation, fabrication of evidence, prosecutorial misconduct, erroneous

exclusion of evidence, newly discovered evidence, ineffective assistance of

counsel, and an unfair trial.     Because the court properly excluded Gray's

proffered witness's criminal history as propensity evidence barred by ER 404(b)

and we find no merit in Gray's remaining arguments, we affirm the conviction.




       1 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L Ed. 2d 215 (1963).
NO. 68814-6-1/2




                                       FACTS


       On August 7, 2011, around 10:30 p.m., Gray and two friends tried to pick

fights with others outside of a convenience store. After leaving the store, they

walked down the street and attempted to start a fight with three teenagers. One

of the teenagers, Jordan Kirk, went into his house and told his father, Matthew

Kirk, about the harassment. Matthew Kirk told Gray and his friends to stay away

and threatened to shoot them if they stepped into his yard. Gray and his friends

yelled and grabbed their waists as if they had guns. Jordan called the police,

and Gray and his friends left and continued to walk down the street. Gray, who

was wearing blue shorts and a white T-shirt, continued yelling as he walked

down the street. Numerous residents in the area called 911.

       The group approached Leroy Travers and Coral Williams, who were

unloading their car after returning from a rafting trip, and yelled, "I am a Crip" and

"fuck you, nigger." Travers told them to leave. They called Williams names and

made comments about shooting Travers and Williams. Travers told them that he

did not believe they had a gun. He approached Gray, who punched him in the

face. Travers punched Gray, threw Gray to the ground, and kicked him with his

bare foot.   Before turning to walk away, Travers also shoved one of Gray's

friends and told him to stay back.




                                         -2-
NO. 68814-6-1/3




       After Gray got up, he reached into his pants and threatened Travers,

saying, "That's okay, I know where you live" and telling Travers that he would "kill

your whore." Travers, who had no weapons, ran back toward Gray. The men

engaged, and Gray stabbed Travers four times.

      The State charged Gray by amended information with attempted murder in

the first degree and assault in the first degree while armed with a deadly weapon.

Gray requested a pretrial ruling on the admissibility of Travers's criminal history

to support his self-defense claim. The court excluded this evidence under ER

404(b).

      A jury convicted Gray as charged and also returned a special verdict that

he was armed with a deadly weapon.            The court imposed a standard range

sentence.2 Gray appeals.3

                                    ANALYSIS


Witness's Criminal History Evidence

      Gray first claims, "[T]he essential question here is whether a traditional ER

404(b) applies when evidence is offered by a defendant in support of his

defense, or whether a straightforward relevancy/prejudice inquiry applies." He


      2 The jury convicted Gray of attempted murder in the first degree and
assault in the first degree while armed with a deadly weapon. The court vacated
the assault conviction on the basis that conviction for both counts would violate
double jeopardy principles.
        We include other relevant facts in the discussion below as necessary.
                                        -3-
NO. 68814-6-1/4




alleges that the trial court "denied his constitutional right to present a defense"

when it excluded evidence of Travers's criminal history under ER 404(b).         He

contends, "Travers' prior aggressive contacts tended to make it more probable

that he, not Gray, was the aggressor and that he was someone to be feared."

Gray argues that this propensity evidence would support his assertion that he

acted in self-defense when he stabbed Travers.


       The parties dispute the standard for our review of the court's application of

ER 404(b). Gray contends that we should conduct a de novo review because the

trial court's ruling denied his constitutional right to present a defense. The State

counters that we should review for an abuse of discretion because the proper

application of the rules of evidence involves the trial court's exercise of

discretion.   We need not resolve this question because the court properly

excluded the evidence under either standard of review.

       We recently considered and rejected Gray's constitutional and ER 404(b)

interpretation claims in State v. Donald.4 We held that ER 404(b) requires

exclusion of evidence of any person's other crimes, wrongs, or acts to show that

he acted consistent with his character on a particular occasion.5 We also held




       4 No. 68429-9-1 (Wash. Ct. App. Dec. 9, 2013).
       5 Donald, slip op. at 7.
NO. 68814-6-1/5




that this requirement does not violate an accused's constitutional right to present

a defense.6

       ER 404(a)(2) allows the admission of evidence of "a pertinent trait of

character of the victim offered by an accused." Gray makes no argument that the

trial court should have admitted Travers's criminal history under this rule. The

criminal history proffered to the trial court would not support such an argument.

The trial court did not err when it excluded the proffered evidence of Travers's

criminal history.

Brady Violation


       In a statement of additional grounds, Gray alleges that the prosecutor

improperly withheld evidence. Gray asserts that he requested video surveillance

from the convenience store and that "[i]n the E-mail to Mr. Gray[']s trial counsel

the prosecutor stated 'there[']s no outside video of the mart' indicating he

rendered the surviellance [sic] material worthless."      Gray claims, "[l]t was

mentioned in the police report that a copy was to be at the police headquarters

putting it in the prosecutor[']s constructive possession." Gray argues, "The video

if produced would have shown Mr. Gray was not acting aggressive toward

anyone at the mart, rebutting the prosecutor[']s giving of the first aggressor

instruction."



       6 Donald, slip op. at 1.
                                        -5-
NO. 68814-6-1/6




       In Brady v. Maryland, the Supreme Court held that "suppression by the

prosecution of evidence favorable to an accused upon request violates due

process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution."7 Evidence is

material only if there is a reasonable probability that had prosecution disclosed

the evidence to the defense, the proceeding would have had a different result.8

The record does not contain the referenced police report or e-mail or any

evidence of a surveillance video from the convenience store.         Additionally,

nothing in the record indicates that Gray interacted with Travers at or near the

store. Because Gray fails to show a reasonable probability that disclosing this

evidence, if it exists, would have led to a different result, he fails to show a

violation of the Brady rule.

Fabrication of Evidence


       Gray further alleges, "The prosecutor also fabricated evidence by stating

the defendant had the folding knife at the ready as he taunted 'the victim' in an

attempt to get him to re-engage." "In the criminal law context, the deprivation of




       7Bradv, 373 U.S. at 87.
       8 State v. Thomas. 150 Wn.2d 821, 850, 83 P.3d 970 (2004) (quoting
United States v. Baqlev. 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481
(1985): In re Pers. Restraint of Benn. 134 Wn.2d 868, 916, 952 P.2d 116(1998)).
                                       -6-
NO. 68814-6-1/7




liberty based on fabricated evidence is a violation of a person's constitutional

right to due process."9

         To support his assertions, Gray cites testimony from witnesses Coral

Williams and Ryan Leverenz, who said that they observed no weapons. Gray

does not dispute that he was involved in an altercation with Travers or that

Travers was stabbed.        Witness Leo Mattox testified that Gray screamed to

Travers that he was going to "kill his whore." Although Gray claims that he had

no weapon, Mattox testified, "I seen a knife come out and what appeared to be

punching or stabbing, at that point, I couldn't clearly define it that night, you

know, until later." Mattox also told the court that he saw Gray throw something

that hit a neighbor's shed as Gray ran away from the scene10 and that Mattox

found a knife near the shed the next day.            A forensic scientist from the

Washington State Patrol Crime Laboratory testified that although she could not

clearly determine a single person's DNA (deoxyribonucleic acid) profile on the

knife handle, the knife's blade contained Travers's blood.      Because evidence

elicited at trial supports the prosecutor's argument, we reject Gray's fabrication

claim.




         9Jones v. State, 170 Wn.2d 338, 350, 242 P.3d 825 (2010).
         10 The court admitted the knife into evidence.
NO. 68814-6-1/8




Prosecutorial Misconduct


       Gray also alleges prosecutorial misconduct. He claims that the prosecutor

improperly expressed his personal opinions to the jury.         Additionally, Gray

contends that during the State's closing argument, the prosecutor violated the

pretrial order precluding the use of the word "victim."

       To succeed on a claim of prosecutorial misconduct made for the first time

on appeal, an appellant must establish that the prosecutor's behavior was "so

flagrant and ill intentioned that an instruction could not have cured the resulting

prejudice."11 To prove prosecutorial misconduct, an appellant must show both

improper conduct and resulting prejudice.12 Conduct is not flagrant and ill-

intentioned where a curative instruction could have cured any error.13 "But the

cumulative effect of repetitive prejudicial prosecutorial misconduct may be so

flagrant that no instruction or series of instructions can erase their combined

prejudicial effect."14   "Mere appeals to a jury's passion and prejudice are

inappropriate."15 Prejudice exists where there is a substantial likelihood that the

misconduct affected the verdict.16 The prosecutor has wide latitude in closing


       11
            State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d 653 (2012).
       12 State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009).
       13 State v. Walker, 164 Wn. App. 724, 737, 265 P.3d 191 (2011), review
denied, 177 Wn.2d 1026 (2013).
       14 Walker, 164 Wn. App. at 737.
       15 State v. Smith, 144 Wn.2d 665, 679, 30 P.3d 1245, 39 P.3d 294 (2001).
       16 State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006).
                                         -8-
NO. 68814-6-1/9




argument to draw reasonable inferences from the evidence and to express such

inferences to the jury.17 We review a prosecutor's comments during closing

argument in the context of the total argument, the issues in the case, the

evidence, and the jury instructions.18

       During the State's closing argument, the prosecutor commented, "He turns

him and pushes against him onto the ground, and luckily that's when the officer

arrived, because I am pretty sure Leroy Travers would not be here today if that

officer had not arrived." He also remarked, while referring to Gray, "[Pjrobably

embarrassed him in front of his friends that he got knocked down, and he's going

to finish the job. So first aggressor. That alone eliminates self—self-defense."

Even if the prosecutor's statements were improper, Gray fails to show a

substantial likelihood that they affected the verdict. Viewed in the context of the

total argument, the prosecutor recited the law directly from the jury instructions

and noted that the State bears the burden of proof. The State also presented a

strong case. Mattox testified that Gray attempted to pick fights and was yelling

as he walked down the street.     He also testified that Travers ran at Gray after

Gray threatened Travers and Williams, the two men "grabbed each other

equally," and then Gray stabbed Travers.       Ryan Leverenz, another witness,


       17 State v. Magers, 164 Wn.2d 174, 192, 189 P.3d 126 (2008) (citing State
v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997)).
       Ornery, 174 Wn.2d at 764 n.14.
                                         -9-
NO. 68814-6-1/10




testified that he heard Gray yelling threats to "shoot a house up" and threats to

Travers's girl friend before the men engaged and Gray stabbed Travers. Travers

testified that Gray threatened to shoot him and his girl friend and that Gray

punched Travers. Travers also testified that after he punched Gray, threw him

on the ground, and kicked him, Gray got up and continued to threaten Travers,

Travers ran at Gray, and then Gray stabbed Travers.         The contrary evidence

primarily concerned the witnesses' credibility. Because Gray fails to demonstrate

prejudice, we reject his argument.

      Gray also fails to show that he was prejudiced from the prosecutor's use

of the word "victim" approximately seven times during closing, despite the court's

pretrial order granting Gray's motion in limine to preclude the State from referring

to Travers as "the victim."19 Even if this conduct was improper, Gray does not

show a substantial likelihood that these comments affected the verdict.


Exclusion of Evidence


      Gray also claims that the court erred when it excluded an out-of-court

statement that Travers purportedly made to Mattox.      The stabbing occurred on

August 7. On October 3, Travers allegedly told Mattox, while referring to Gray,

"Yeah, I probably would have done the same thing if I'd been in his

circumstances."



      19 The record does not contain this motion in limine.
                                       -10-
NO. 68814-6-1/11




      Gray contends that Travers's statement was not hearsay.20 In ruling that

Mattox could not testify to Travers's statement, the court reasoned,

      This conversation which took place about 30 days after, and within
      which the individuals are sharing opinions about what could have
      and should have happened and—and after they've reflected on this
      and so forth and so on is not relevant to this case, in my opinion.
      And to the degree that it is, Evidence Rule 403 would keep it out
      because of the danger of confusion of the issues and so forth, and
      misleading the jury.
              The jury's job is to determine what happened there on the
      scene. The jury's job is not to determine what post—in a post-
      reflective state the parties thought was going to go—what the
      parties thought should have happened. And it is, I think, absolutely
      inappropriate for the record to reflect this information inasmuch as
      the jury's job is to determine whether or not the situation was one
      which required—which called for the action that brings Mr. Gray to
      the scene right now—brings him to the attention of the Court.
              So what two fellows, two friends are talking about later, 30
      days later about this is not considered appropriate under 403 or
      under 401 .[21]

We agree with the trial court. Even if we were to conclude that evidence of this

statement is not hearsay, Gray fails to show how this statement is relevant or that

the danger of misleading the jury when asked to consider Gray's and Travers's

conduct at the time of the incident would not substantially outweigh its probative



      20 "'Hearsay' is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted."      ER 801.     Gray alleges that the prosecutor committed
misconduct by objecting to this evidence. The State's objection cannot form the
basis of a prosecutorial misconduct claim. Although the State objected to the
statement's admission on the basis that it was hearsay and irrelevant, the court
addressed only the relevancy objection.
      21 The court appears to have erred in stating "30 days." The transcript
indicates that the conversation took place almost two months after the stabbing.
                                       -11-
NO. 68814-6-1/12




value. Thus, the trial court did not abuse its discretion in excluding evidence of

this conversation.


Newly Discovered Evidence


       Gray also alleges that he "had a friend with him by the name of Tony

Goodnow, who was a witness to Mr. Gray[']s self defense act.              He was

interviewed after the trial by Mr. Gray[']s sentencing counsel Lisa Mulligan." Gray

argues, "His statement would shed new light on the first aggressor issue, so it

could change the result of the verdict." Because reviewing this claim on direct

appeal would require us to consider matters outside the trial record, we decline to

address it.22

Ineffective Assistance of Counsel


       Gray also claims that his trial counsel, Kris Jensen, was ineffective

because he "failed to conduct a pre-trial interview" with witness Matthew Kirk and

because he did not call James Star to testify. Gray asserts, "Matt is the only

witness who says Mr. Gray was aggressive prior to the incident, though he says

there was [sic] two people wearing white t-shirts, one was aggressive, I was the

only one in a white[]t-shirt."



       22 See State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995)
("Where ... the claim is brought on direct appeal, the reviewing court will not
consider matters outside the trial record." (citing State v. Crane, 116 Wn.2d 315,
335, 804 P.2d 10 (1991); State v. Blight, 89 Wn.2d 38, 45-46, 569 P.2d 1129
(1977))).
                                       -12-
NO. 68814-6-1/13




          We review ineffective assistance of counsel claims de novo.23 To prevail,

a defendant must show both deficient performance and resulting prejudice.24

Counsel's performance is deficient if it fell below an objective standard of

reasonableness.25       Our scrutiny of defense counsel's performance is highly

deferential, and we employ a strong presumption of reasonableness.26 "To rebut

this presumption, the defendant bears the burden of establishing the absence of

any 'conceivable legitimate tactic explaining counsel's performance.'"27           To

establish prejudice, a defendant must show a reasonable probability that the

trial's   outcome    would    have   been   different   absent   counsel's   deficient


performance.28       Failure on either prong of the test defeats an ineffective

assistance of counsel claim.29       "The decision whether to call a witness is

ordinarily a matter of legitimate trial tactics and will not support a claim of

ineffective assistance of counsel.'"30



          23 In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001).
          24 Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).
          25 Stenson. 132 Wn.2d at 705.
          26 Strickland, 466 U.S. at 689; McFarland, 127 Wn.2d at 335-36.
          27 State v. Grier, 171 Wn.2d 17, 42, 246 P.3d 1260 (2011) (quoting State
v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)).
          28 State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987) (quoting
Strickland, 466 U.S. at 694).
          Strickland, 466 U.S. at 697.
          30 State v. Statler, 160 Wn. App. 622, 636, 248 P.3d 165 (quoting State v.
Kolesnik, 146 Wn. App. 790, 812, 192 P.3d 937 (2008)), review denied, 172
Wn.2d 1002(2011).
                                         -13-
NO. 68814-6-1 /14




       The record shows that although Jensen did not conduct a pretrial interview

with Kirk, Jensen effectively cross-examined Kirk at trial.      Gray does not show

that Jensen's failure to interview Kirk before trial prejudiced him. Jensen's choice

not to call Star as a witness was a legitimate trial strategy.

       Gray also claims that he received ineffective assistance of counsel

because his attorney "failed to request an additional jury instruction explaining

that withdrawing from the altercation revives the right to self-defense." Counsel's

failure to propose a legally adequate jury instruction can constitute ineffective

assistance.31 Sufficient jury instructions permit each party to argue its theory of

the case and properly inform the jury ofthe applicable law.32

       An initial aggressor who provoked the altercation cannot successfully

invoke the right to self-defense to justify or excuse causing bodily harm to the

other person engaged in the conflict "unless he in good faith had first withdrawn

from the combat at such a time and in such a manner as to have clearly apprised

his adversary that he in good faith was desisting, or intended to desist, from

further aggressive action."33 Here, Gray argues that he withdrew "when he

abandoned the fist-fight [sic] and physically retreated 120 feet away from


       31 State v. Cienfueqos, 144 Wn.2d 222, 228-29, 25 P.3d 1011 (2001).
       32 State v. Rilev, 137 Wn.2d 904, 909, 976 P.2d 624 (1999) (quoting State
v. Bowerman, 115 Wn.2d 794, 809, 802 P.2d 116 (1990)).
       33 State v. Craig, 82 Wn.2d 777, 783-84, 514 P.2d 151 (1973) (citing State
v. Wilson, 26 Wn.2d 468, 174 P.2d 553 (1946)).
                                         -14-
NO. 68814-6-1/15




Travers." The trial court gave Gray's requested self-defense jury instruction, as

well as the State's requested first aggressor instruction.

       Witnesses testified that Gray and Travers separated physically after the

fistfight. But Williams testified that as Gray walked away, he reached into his

pants, "acting like he had something," and made verbal threats to Williams and

Travers. Mattox testified that Gray "made a motion that he was pulling a gun out

from behind his back" as the men were separating, that "as they were separating,

the volumes were getting louder," that Gray made "a statement about killing

[Travers's] whore," and that Gray was "being more aggressive as [Travers] was

being coached away from the situation." Although Gray's theory of the case was

self-defense, Gray's actions did not communicate clearly to Travers his intention

to withdraw from further conflict. Thus, under the circumstances here, defense

counsel's    performance    did   not   fall    below   an   objective   standard   of

reasonableness and did not prejudice Gray's trial.

Fair Trial


       Gray also claims,

              While the jury was present, the honorable judge called Mr.
       Gray up for a sidebar, as Mr. Gray rose up the correctional officer
       stood up and yelled "what are you doing, sit down."
              This led the jury to see that Mr. Gray was in custody which is
       a violation of his rights, and serves also as a basis for [a] new trial.




                                         •15-
NO. 68814-6-1/16




"Every criminal defendant is entitled to a fair trial by an impartial jury."34 The

presumption of innocence is a basic component of a fair trial.35 To give effect to

this presumption, the court has a duty to be "alert to any factor that could

'undermine the fairness of the fact-finding process.'"36

       The record contains no indication that the jury was aware of Gray's

custodial status at the time of trial.37 Although the record does not contain the

statement that Gray cites, this incident would demonstrate merely that the court

officer was maintaining order in the courtroom. Therefore, we reject this claim.

                                  CONCLUSION


       ER 404(b) requires excluding evidence of any person's other crimes,

wrongs, or acts to show that he acted consistent with his character on a

particular occasion. Gray fails to show that the State withheld material evidence

or fabricated evidence. He also fails to establish that the prosecutor's statements



       34 State v. Gonzalez. 129 Wn. App. 895, 900, 120 P.3d 645 (2005) (citing
U.S. Const, amends. VI, XIV § 1; Wash. Const, art. I, §§ 3, 21, 22).
       35 Gonzalez, 129 Wn. App. at 900 (citing Estelle v. Williams, 425 U.S. 501,
503, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976); State v. Crediford, 130 Wn.2d 747,
759, 927 P.2d 1129 (1996)).
       36 Gonzalez, 129 Wn. App. at 900 (quoting Williams, 425 U.S. at 503).
       37 The trial transcript indicates that Gray was concerned that the jurors
saw him wearing a jail bracelet. The prosecutor stated, "The Defendant, as your
Honor well knows, was wearing a fairly longsleeved jacket with a regular suit.
And that bracelet would probably not even be visible from clear across the
courtroom to the jurors. And even if they did see that bracelet, it would look
something like a small medical bracelet." Defense counsel did not question the
jurors about their ability to see the bracelet.
                                        -16-
NO. 68814-6-1/17




during closing were prejudicial.   The court properly excluded Travers's out-of-

court statement.   We do not consider if Tony Goodnow's testimony is newly

discovered evidence.   Gray fails to show that defense counsel's conduct was

improper or prejudicial, and no evidence shows that the jury was aware of Gray's

custodial status at the time of trial.      For these reasons, we affirm Gray's

conviction.




WE CONCUR:




                                                        /.s /rv^.        ^L
                                                    f               ~7




                                         -17-
