                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                            July 9, 2019

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 51276-9-II

                               Respondent,
                                                              UNPUBLISHED OPINION
        v.

 ROBERT LEIGH LEATHERMAN,

                               Appellant.


       MAXA, C.J. – Robert Leatherman appeals his convictions for first degree animal cruelty

and bail jumping and the trial court’s imposition of a criminal filing fee as a mandatory legal

financial obligation (LFO). The State filed the animal cruelty charge after a necropsy of

Leatherman’s dog “Wolfy” revealed signs of starvation and neglect.

       We hold that (1) Leatherman’s defense counsel did not provide ineffective assistance by

failing to request an inferior degree offense instruction regarding second degree animal cruelty or

by failing to object to the admission of medical evidence, (2) Leatherman’s prosecutorial

misconduct claims fail because one challenged statement was not improper and one claim was

waived because he did not object, (3) Leatherman’s unpreserved challenge to the to-convict

instruction for bail jumping does not involve a manifest constitutional error and therefore does

not merit our review under RAP 2.5(a)(3), and (4) the criminal filing fee imposed on Leatherman

at sentencing must be stricken based on Leatherman’s indigence.
No. 51276-9-II


       Accordingly, we affirm Leatherman’s convictions for first degree animal cruelty and bail

jumping, but we remand for the trial court to strike the criminal filing fee from the judgment and

sentence.

                                             FACTS

Background

       Leatherman owned a large, elderly dog named “Wolfy.” Leatherman lived in the small

Thurston County town of Bucoda, where Wolfy was well-known because he wandered around

town almost every day.

       In October 2014, Shawna Estrada saw Wolfy limping down the road while she was

driving through Bucoda. Estrada thought that Wolfy looked injured and noticed that he was

missing skin from his hindquarters and that he emitted a strong odor. He also was missing a lot

of hair, his hips appeared injured, and there were maggots in the numerous sores on his skin.

Estrada took pictures of Wolfy, later posting them on the local newspaper’s social media page in

an attempt to get Wolfy some help.

       Shortly thereafter, Leatherman decided it was time to put Wolfy down because Wolfy

began having seizures. A friend of Leatherman’s drove Wolfy out of town and shot him in the

head. The body was left there.

       On October 14, the Thurston County Sheriff’s Office received a report about a dog

shooting in Bucoda. Deputy Jay Swanson investigated and talked with Leatherman. Leatherman

told him that Wolfy had been put down the previous day. Swanson subsequently located

Wolfy’s remains.

       Dr. Victoria Smith, a veterinarian, performed a necropsy on Wolfy a few days later.

Based on her findings, the State charged Leatherman with first degree animal cruelty, alleging




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No. 51276-9-II


that he had starved Wolfy in a manner that caused substantial and unjustifiable pain in violation

of RCW 16.52.205(2)(a). The State amended the information to include bail jumping after

Leatherman did not appear for a pretrial hearing that the trial court previously had ordered him to

attend.

Trial Testimony

          Dr. Smith testified at trial that her necropsy of Wolfy revealed extensive hair loss,

alopecia (a skin condition), advanced dental disease, and significant loss of muscle and

subcutaneous fat. She also found arthritis, old gunshot wounds, and severe chronic ear

infections. The only contents of Wolfy’s stomach were rocks, corn, and hair, and Dr. Smith

testified that dogs typically do not eat rocks unless they are starving.

          Dr. Smith testified that Wolfy’s advanced periodontal disease was accompanied by hair

wrapped around many of his teeth, causing abrasions, swelling, and pus in his gum line. The

hair around Wolfy’s teeth was likely evidence that he chronically chewed his coat. Such

chewing typically occurs when a dog is injured or in pain from either a skin or orthopedic

condition.

          Dr. Smith concluded that the state of Wolfy’s mouth and teeth would have made it very

difficult for him to eat. She also concluded that the totality of Wolfy’s health conditions would

have meant that he was in pain for at least the last six months of his life.

          Leatherman presented testimony from several Bucoda residents who were familiar with

Wolfy. These witnesses testified that the last time they had seen Wolfy he had appeared to be

old but in good condition. They also testified that Leatherman took good care of Wolfy and that

he left bowls of food and water out for him. Although Wolfy’s breath was bad, it was the kind of




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No. 51276-9-II


bad breath typical of an old dog. One witness testified that Leatherman was fond of Wolfy and

was very sad when it was time to put him down.

Jury Instructions and Closing Arguments

       The trial court instructed the jury on first degree animal cruelty. Defense counsel did not

propose an inferior degree offense instruction regarding second degree animal cruelty.

       The trial court gave a to-convict instruction on bail jumping that did not provide that the

State had the burden of proving that Leatherman failed to appear in court “as required.”

Leatherman did not object to this instruction.

       The State’s theory at closing was that Leatherman had starved Wolfy by negligently

failing to treat his advanced periodontal disease, to the point that Wolfy was unable to eat

because of the extreme pain he would have experienced while attempting to chew his food.

Regarding reasonable doubt, the prosecutor stated that the jury should ask whether any doubt

they had was a reasonable one.

       Defense counsel argued in closing that Wolfy was Leatherman’s beloved companion and

that “if somebody has that kind of camaraderie, it’s highly unlikely that they are going to engage

in the type of criminal negligence that would lead for the dog to starve.” 2 RP at 329. Defense

counsel further argued that Leatherman had been very upset about Wolfy’s death, showing “an

established relationship between . . . the dog Wolfy and Mr. Leatherman.” 2 RP at 331.

       In rebuttal, the prosecutor compared caring for a dog with caring for a human child.

Leatherman did not object to this argument.

       The jury convicted Leatherman of first degree animal cruelty and bail jumping. The trial

court imposed a $200 criminal filing fee as a mandatory LFO. Leatherman appeals his

convictions and the imposition of the criminal filing fee.




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No. 51276-9-II


                                             ANALYSIS

A.      INEFFECTIVE ASSISTANCE OF COUNSEL

        Leatherman argues that he received ineffective assistance of counsel at trial because

defense counsel (1) failed to request an inferior degree offense jury instruction for second degree

animal cruelty, and (2) failed to object to Dr. Smith’s testimony regarding Wolfy’s untreated

health problems not directly related to his starvation. We disagree.

        1.   Legal Principles

        The Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington Constitution guarantee criminal defendants the right to effective assistance of

counsel. State v. Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017). We review ineffective

assistance of counsel claims de novo. Id.

        To prevail on an ineffective assistance of counsel claim, the defendant must show both

that (1) defense counsel’s representation was deficient, and (2) the deficient representation

prejudiced the defendant. Id. at 457-58. Representation is deficient if, after considering all the

circumstances, it falls below an objective standard of reasonableness. Id. at 458. Prejudice

exists if there is a reasonable probability that except for counsel’s errors, the result of the

proceeding would have differed. Id. Reasonable probability in this context means a probability

sufficient to undermine confidence in the outcome. Id.

        We begin our analysis with a strong presumption that defense counsel’s performance was

reasonable. Id. Defense counsel’s conduct is not deficient if it can be characterized as legitimate

trial strategy or tactics. Id. To rebut the strong presumption that counsel’s performance was

effective, “the defendant bears the burden of establishing the absence of any ‘conceivable




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No. 51276-9-II


legitimate tactic explaining counsel’s performance.’ ” 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)).

       2.    Failure to Request an Inferior Degree Offense Instruction

       Leatherman argues that the failure to request an inferior degree offense instruction for

second degree animal cruelty constituted ineffective assistance. He claims that defense counsel’s

“all or nothing” strategy was not reasonable because it forced the jury to either convict him of

first degree animal cruelty or allow him to go free despite evidence that he had failed to get

necessary veterinary care for Wolfy. We disagree.

             a.   Entitlement to Instruction

       RCW 10.61.003 provides that a jury may find a defendant not guilty of the charged

offense but guilty of an offense with an inferior degree. Under this statute, both parties have a

statutory right to an inferior degree offense instruction. See State v. Corey, 181 Wn. App. 272,

277, 280, 325 P.3d 250 (2014). The party requesting an instruction on an inferior degree offense

must show:

       (1) the statutes for both the charged offense and the proposed inferior degree offense
       proscribe but one offense; (2) the information charges an offense that is divided into
       degrees, and the proposed offense is an inferior degree of the charged offense; and (3)
       there is evidence that the defendant committed only the inferior offense.

State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000) (quoting State v. Peterson,

133 Wn.2d 885, 891, 948 P.2d 381 (1997)) (internal quotation marks omitted).1




1
  The parties apply the test for giving a lesser included offense instruction. However, second
degree animal cruelty is an inferior degree of first degree animal cruelty, not a lesser included
offense. The Supreme Court has emphasized that the analysis for an inferior degree offense
instruction is different than the analysis for a lesser included offense instruction. Fernandez–
Medina, 141 Wn.2d at 454.


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No. 51276-9-II


       The third requirement is the factual component of the test. An inferior degree offense

instruction must be given if the evidence would permit a jury rationally to convict only on the

inferior offense and acquit on the greater offense. Fernandez–Medina, 141 Wn.2d at 456.

       The issue regarding Leatherman’s entitlement to an instruction is whether the factual

component was satisfied. First degree animal cruelty, as charged in this case, required proof that

the defendant “with criminal negligence, did starve an animal and as a result caused substantial

and unjustifiable physical pain that extends for a period sufficient to cause considerable

suffering.” Clerk’s Papers (CP) at 24; see RCW 16.52.205(2). Second degree animal cruelty

occurs when, “under circumstances not amounting to first degree animal cruelty, the owner

knowingly, recklessly, or with criminal negligence . . . [f]ails to provide the animal with

necessary . . . medical attention and the animal suffers unnecessary or unjustifiable physical pain

as a result of the failure.” RCW 16.52.207(2)(a).

       Here, the evidence would support a finding that Leatherman failed to provide Wolfy with

necessary medical attention and thereby caused physical pain, but that he did not with criminal

negligence starve Wolfy. In other words, the evidence would have allowed the jury to convict on

second degree animal cruelty but acquit on first degree animal cruelty. Therefore, we conclude

that Leatherman would have been entitled to an inferior degree instruction if defense counsel had

requested one.

            b.    Conceivable Legitimate Tactic

       The fact that Leatherman was entitled to an inferior defense instruction does not resolve

the ineffective assistance of counsel issue because defense counsel may decide as a tactical

matter to forgo such an instruction. See Grier, 171 Wn.2d at 42. “The salient question here is




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No. 51276-9-II


not whether [the defendant] is entitled to such instructions but, rather, whether defense counsel

was ineffective in foregoing such instructions.” Id.

       Leatherman relies on State v. Smith, 154 Wn. App. 272, 223 P.3d 1262 (2009). In that

case, this court held that defense counsel’s failure to request an instruction on second degree

animal cruelty when the defendant was charged with first degree animal cruelty constituted

ineffective assistance of counsel. Id. at 278-79. The court stated,

       [D]efense counsel’s all or nothing strategy was not a legitimate trial tactic and
       constituted deficient performance because he presented evidence to call into
       question the State’s theory on starvation, not the entire crime. This left the jury in
       an arduous position: to either convict Smith of first degree animal cruelty or to let
       him go free despite evidence of some culpable behavior.

Id. at 278. For support the court cited State v. Pittman, 134 Wn. App. 376, 387-89, 166 P.3d 720

(2006). Smith, 154 Wn. App. at 278-79.

       However, the Supreme Court’s subsequent analysis in Grier of ineffective assistance of

counsel in the context of defense counsel’s failure to propose a lesser included defense

instruction is inconsistent with this court’s conclusion in Smith. In Grier, the court questioned

the holdings in several cases, expressly including Smith and Pittman, that defense counsel was

ineffective for failing to propose a lesser included defense instruction. Grier, 171 Wn.2d at 37.

       Deciding to forego an inferior degree offense or lesser included offense instruction

reflects an “all or nothing” strategy. See State v. Breitung, 173 Wn.2d 393, 398-99, 267 P.3d

1012 (2011). The court in Grier emphasized the subjective nature of the decision to pursue such

a strategy. 171 Wn.2d at 39. The court stated,

       A defendant who opts to forgo instructions on lesser included offenses certainly has
       more to lose if the all or nothing strategy backfires, but she also has more to gain if
       the strategy results in acquittal. Even where the risk is enormous and the chance of
       acquittal is minimal, it is the defendant’s prerogative to take this gamble, provided
       her attorney believes there is support for the decision. Just as a criminal defendant
       with slim chances of prevailing at trial may reject a plea bargain nevertheless, a



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No. 51276-9-II


       criminal defendant who genuinely believes she is innocent may prefer to avoid a
       compromise verdict, even when the odds are stacked against her. Thus, assuming
       that defense counsel has consulted with the client in pursuing an all or nothing
       approach, a court should not second-guess that course of action, even where, by
       the court’s analysis, the level of risk is excessive and a more conservative approach
       would be more prudent.

Id. (emphasis added).2

       Turning to the facts of the case, the court in Grier noted that to rebut the strong

presumption that defense counsel’s performance was reasonable, a defendant claiming

ineffective assistance of counsel “bears the burden of establishing the absence of any

‘conceivable legitimate tactic explaining counsel’s performance.’ ” Id. at 42 (quoting

Reichenbach, 153 Wn.2d at 130). The court stated, “Although risky, an all or nothing approach

was at least conceivably a legitimate strategy to secure an acquittal.” Grier, 171 Wn.2d at 42.

       The court emphasized that the defendant presented two theories that she was not guilty of

the charged crime and that “acquittal was a real possibility, albeit a remote one.” Id. at 42-43.

The court concluded that the defendant and defense counsel “reasonably could have believed that

an all or nothing strategy was the best approach to achieve an outright acquittal.” Id. at 43. The

court also stated, “That this strategy ultimately proved unsuccessful is immaterial to an

assessment of defense counsel’s initial calculus; hindsight has no place in an ineffective

assistance analysis.” Id. Therefore, the court concluded that the defendant could not prove

deficient performance. Id.

       The Supreme Court reached the same result in Breitung, 173 Wn.2d at 399-401. In that

case, the defendant was charged with second degree assault and the issue was whether defense




2
  The court in Grier assumed that defense counsel had consulted with the defendant in deciding
whether to propose a lesser included offense instruction. In Breitung, the Supreme Court stated
that consultation should be presumed absent evidence of a failure to consult. 173 Wn.2d at 401.


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No. 51276-9-II


counsel should have proposed an instruction on fourth degree assault. Id. at 397. The court

noted that the defendant’s theory was that no assault occurred at all. Id. at 399. The court

concluded, “ ‘Where a lesser included offense instruction would weaken the defendant’s claim of

innocence, the failure to request a lesser included offense instruction is a reasonable strategy.’ ”

Id. at 399-400 (quoting State v. Hassan, 151 Wn. App. 209, 220, 211 P.3d 441 (2009)).

       Grier and Breitung are more applicable here than Smith. Leatherman provided testimony

from multiple witnesses that he took good care of Wolfy. They testified that Wolfy looked

normal to them when they had seen him last, that Leatherman left bowls of food out for Wolfy,

and that Leatherman loved Wolfy. In closing, Leatherman argued that the State had not

presented evidence that his care of Wolfy was deficient and that it was not reasonable to require

an ordinary person to engage in the type of grooming habits the State argued was required. As a

result, as in Grier, acquittal was a real possibility. And as in Breitung, Leatherman essentially

claimed innocence. Therefore, not proposing a second degree animal cruelty instruction “was at

least conceivably a legitimate strategy to secure an acquittal.” Grier, 171 Wn.2d at 42.3

       Accordingly, we hold that defense counsel’s failure to request an inferior degree offense

instruction did not constitute ineffective assistance of counsel.

       3.    Failure to Object to Evidence of Other Health Problems

       Leatherman also argues that his defense counsel provided ineffective assistance by failing

to object to evidence of Wolfy’s many health problems not directly related to starvation.

Leatherman contends that this evidence was not relevant to the State’s theory that his failure to



3
  In addition, the court in Grier suggested that a defendant could not show prejudice in this
situation because it must be assumed that the jury would not convict on the higher degree offense
if the State did not meet its burden of proof. 171 Wn.2d at 43-44. Therefore, the availability of a
“compromise verdict” allowed by the inferior degree instruction would not have changed the
outcome. Id. at 44.


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No. 51276-9-II


address Wolfy’s periodontal disease caused Wolfy to starve, and therefore it was inadmissible

under ER 404(b). We disagree.

        Under ER 404(b), “Evidence of other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show action in conformity therewith.” Leatherman claims

that defense counsel’s failure to object to evidence of Wolfy’s skin, ear, and joint problems

allowed the jury to find him guilty based on his failure to seek treatment for Wolfy’s more

obvious health problems.

        “The decision of when or whether to object is a classic example of trial tactics.” State v.

Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). We presume that “the failure to object

was the product of legitimate trial strategy or tactics, and the onus is on the defendant to rebut

this presumption.” State v. Johnston, 143 Wn. App. 1, 20, 177 P.3d 1127 (2007). The decision

not to object may be a legitimate trial tactic where defense counsel does not want to risk

emphasizing unfavorable testimony. In re Pers. Restraint of Davis, 152 Wn.2d 647, 714, 101

P.3d 1 (2004).

        In order to show that defense counsel was ineffective for failing to make a particular

objection, the defendant must show that (1) failure to object fell below “prevailing professional

norms,” (2) the proposed objection would likely have been sustained, and (3) the result of the

trial would have differed had the objection been made. Id.

        Here, the State presented testimony from Dr. Smith regarding her necropsy of Wolfy that

did not directly relate to his inability to eat, his starvation, and his related pain. She identified

extensive hair loss and alopecia (a skin condition). She also found arthritis, old gunshot wounds,

and severe chronic ear infections.




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No. 51276-9-II


            However, the evidence presented here of Wolfy’s many health conditions was not

offered to prove Leatherman’s character but to demonstrate how a dog in Wolfy’s condition

could starve despite the fact that dog food was available to him. Evidence that Wolfy was in

chronic pain due to his skin and orthopedic conditions as well as his ear infections suggested that

he chewed on himself to relieve his discomfort. When he chewed on himself, hair wrapped

around his teeth. Over time, the hair cut into his gum line and exacerbated his periodontal

disease, compounding his inability to eat dog food and contributing to his emaciation. This

evidence was relevant to the State’s theory, and defense counsel was not ineffective for choosing

to avoid calling additional attention to the evidence with an objection. Further, because the

evidence was relevant the trial court likely would not have sustained an objection to that

evidence.

       Accordingly, we hold that defense counsel’s failure to object to this evidence did not

constitute ineffective assistance.

B.     PROSECUTORIAL MISCONDUCT

       Leatherman argues that the prosecutor engaged in misconduct during closing argument

and rebuttal by improperly (1) mischaracterizing the term “reasonable doubt” and (2)

encouraging the jury to convict him if they found he had not cared for Wolfy as a reasonable

person would care for a human child. We disagree regarding first argument, and conclude that

Leatherman waived the second argument by not objecting at trial.

       1.     Legal Principles

       To prevail on a claim of prosecutorial misconduct, a defendant must show that the

prosecutor’s conduct was both improper and prejudicial. In re Pers. Restraint of Glasmann, 175

Wn.2d 696, 704, 286 P.3d 673 (2012). In assessing whether a prosecutor’s closing argument




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No. 51276-9-II


was improper, we recognize that the prosecutor has “wide latitude to argue reasonable inferences

from the evidence.” State v. Thorgerson, 172 Wn.2d 438, 448, 258 P.3d 43 (2011). To establish

prejudice, the defendant must show a substantial likelihood that the misconduct affected the jury

verdict. Id. at 442-43. When analyzing prejudice, we do not look at the alleged improper

remarks “in isolation, but in the context of the total argument, the issues in the case, the

evidence, and the instructions given to the jury.” State v. Warren, 165 Wn.2d 17, 28, 195 P.3d

940 (2008).

       When the defendant failed to object at trial, the defendant is deemed to have waived any

error “unless the prosecutor’s misconduct was so flagrant and ill-intentioned that an instruction

could not have cured the resulting prejudice.” State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d

653 (2012). The defendant must show that (1) no curative instruction would have eliminated the

prejudicial effect, and (2) the misconduct resulted in prejudice that had a substantial likelihood of

affecting the verdict. Id. at 761.

       2.     Characterization of Reasonable Doubt

       Leatherman argues that the prosecutor’s closing remarks on reasonable doubt undermined

the presumption of innocence and improperly shifted the burden of proof to the defense. We

disagree.

       “Shifting the burden of proof to the defendant is improper argument, and ignoring this

prohibition amounts to flagrant and ill intentioned misconduct.” Glasmann, 175 Wn.2d at 713.

A prosecutor commits misconduct by suggesting that the defendant can be presumed guilty or

that the State somehow does not bear the burden of proving its case beyond a reasonable doubt.

Emery, 174 Wn.2d at 759-60. “Misstating the basis on which a jury can acquit [the defendant]




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No. 51276-9-II


insidiously shifts the requirement that the State prove the defendant’s guilt beyond a reasonable

doubt.” Glasmann, 175 Wn.2d at 713.

       Here, the prosecutor stated in closing argument

       When you go back and you deliberate, you will be given the definition of the term
       “reasonable doubt.” And what a reasonable doubt means, it’s a very circuitous
       definition, “it’s one for which a reason exists and may arise from the evidence or
       lack of evidence. It is such a doubt as would exist in the mind of a reasonable
       person after fully, fairly, and carefully considering all of the evidence or lack of
       evidence.”

       What does that mean? In a nutshell, it means when you go back and you deliberate
       and you say, well, I have a doubt in this case. Before you say “not guilty,” you
       have to ask yourself, is the doubt that you have a reasonable one? If the answer is,
       no, it’s not reasonable, then that’s not a reasonable doubt.

2 RP at 326-27.

       In Emery, the prosecutor stated “[I]n order for you to find the defendant not guilty, . . .

you’d have to say, quote, I doubt the defendant is guilty, and my reason is blank. A doubt for

which a reason exists. If you think that you have a doubt, you must fill in that blank.” 174

Wn.2d at 750-51 (alteration in original). The Supreme Court held these comments improperly

shifted the burden of proof because they started with the phrase “in order for you to find the

defendant not guilty,” which was a “bad beginning because a jury need do nothing to find a

defendant not guilty.” Id. at 759-60. And although the prosecutor properly defined reasonable

doubt as a “doubt for which a reason exists,” the argument improperly implied that the jury must

be able to articulate the nature of its reasonable doubt by filling in a blank. Id. at 760.

       Here, the prosecutor began by accurately describing reasonable doubt as a doubt “for

which a reason exists.” 2 RP at 326. The prosecutor went on to state that if the jury found they

had doubt in the case, “[b]efore you say ‘not guilty,’ you have to ask yourself, is the doubt that

you have a reasonable one?” 2 RP at 326-27 (emphasis added). However, unlike the prosecutor




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No. 51276-9-II


in Emery, the prosecutor here did not tell the jury that they had to “fill in the blank” with an

articulable reasonable doubt, but reiterated that a doubt about the defendant’s guilt that is not

reasonable does not meet the definition of reasonable doubt. The prosecutor concluded closing

remarks by arguing that “the State has proved beyond a reasonable doubt that Mr. Leatherman is

guilty,” recalling to the jury that it was the State’s burden to prove Leatherman’s guilt, not

Leatherman’s burden to prove his innocence. 2 RP at 327.

        We hold that the prosecutor’s statements regarding reasonable doubt did not improperly

shift the burden of proof to Leatherman. Leatherman’s prosecutorial misconduct claim based on

this statement fails.

        3.   Comparing Wolfy to a Human Child

        Leatherman argues that the prosecutor’s comparison between the care a reasonable

person would give a child and the care Leatherman gave Wolfy was improper and prejudiced

him at trial. We agree that the prosecutor’s statements were improper, but we hold that

Leatherman waived his prosecutorial misconduct claim because he did not object to this

argument at trial.

        During closing argument, defense counsel discussed the “obvious camaraderie and

affection” that Leatherman had for Wolfy and argued that this relationship made it unlikely that

Leatherman would engage in conduct that would cause Wolfy to starve. 2 RP at 329. In

rebuttal, the prosecutor stated:

        Let’s talk about what a reasonable person would do. Reasonable person would
        brush their teeth. Reasonable person would make sure, if they have kids, they
        would brush their kid’s teeth, if their kid couldn’t do it themselves. Reasonable
        person would make sure they would eat. Reasonable person would make sure, if
        they had kids, their kids were eating.

2 RP at 345-46. Later, the prosecutor stated:




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No. 51276-9-II


       Ladies and gentleman of the jury, can you imagine if you had a kid. You can say
       all day long, I love my kid. I would do everything I possibly can for my kid. I put
       food out on the table for my kid, but if your kid had periodontal disease in their
       teeth, if your kid had so many unhealthy teeth conditions that it was making it
       difficult for your kid to eat, then I submit to you the fact that you say, I love my
       kid, and the fact that you put food out for your kid but the fact you don’t do anything
       else for your kid, don’t brush your kid’s teeth, don’t take your kid to the doctor to
       make sure your kid is healthy, don’t solve the problems thats [sic] causing your kid
       to starve, that still makes you a neglectful parent, and this is the same situation.

2 RP at 354. Leatherman did not object to this argument at trial.

       A prosecutor has wide latitude to argue reasonable inferences from the evidence and is

entitled to fairly respond to defense’s counsel’s arguments and criticisms of the State’s case.

Thorgerson, 172 Wn.2d at 448, 449-50. However, a prosecutor may not make arguments

designed to inflame the jury’s passion or prejudice. Glasmann, 175 Wn.2d at 704.

       Here, the prosecutor seemingly equated the standard of care for a reasonable parent and a

reasonable dog owner by stating that if a parent did not “solve the problems [that are] causing [a]

kid to starve, that still makes you a neglectful parent, and this is the same situation.” 2 RP at 354

(emphasis added). This argument was improper because it had the potential to inflame the jury’s

passion and prejudice because the idea of a child experiencing the same kind of disease and

injury that Wolfy did would have been highly distressing, even more so than the idea of an

elderly dog experiencing it.

       However, Leatherman did not object to the prosecutor’s argument at trial. If he had

objected, the trial court could have cured any prejudice by directing the jury to disregard the

prosecutor’s statement and to rely on its own assessment of whether Leatherman’s behavior with

respect to Wolfy met the definition of criminal negligence. The prosecutor’s statements were not

so inflammatory that an instruction would have been ineffective. Accordingly, we hold that

Leatherman waived his prosecutorial misconduct claim based on these statements.




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No. 51276-9-II


C.     UNPRESERVED CHALLENGE TO BAIL JUMPING TO-CONVICT INSTRUCTION

       For the first time on appeal, Leatherman argues that the to-convict instruction for bail

jumping erroneously relieved the State of its burden to prove that he failed to appear in court “as

required” in violation of his right to due process. We decline to address this argument because,

under this court’s decision in State v. Hart, 195 Wn. App. 449, 381 P.3d 142 (2016), review

denied, 187 Wn.2d 1011 (2017), the challenge to the to-convict instruction does not involve a

manifest constitutional error under RAP 2.5(a)(3).

       Leatherman did not object to the to-convict instruction at trial. Generally, we will not

consider an issue raised for the first time on appeal unless the party claiming the error can show

that an exception applies. RAP 2.5(a); State v. Robinson, 171 Wn.2d 292, 304, 253 P.3d 84

(2011). One exception is for a “manifest error affecting a constitutional right.” RAP 2.5(a)(3).

In order to raise an issue for the first time on appeal under RAP 2.5(a)(3), the appellant must

demonstrate that (1) the error is truly of a constitutional dimension, and (2) the error is manifest.

State v. Kalebaugh, 183 Wn.2d 578, 583, 355 P.3d 253 (2015).

       RCW 9A.76.170(1) states that a person is guilty of bail jumping if the person is released

by court order “with knowledge of the requirement of a subsequent personal appearance before

any court” and “fails to appear . . . as required.” (Emphasis added.) Here, the bail jumping to-

convict instruction was modeled on 11A Washington Practice: Washington Pattern Jury

Instructions: Criminal 120.41 (4th ed. 2016). Two of the instruction’s elements were that

Leatherman “failed to appear before a court” and that he “had been released by court order or

admitted to bail with knowledge of the requirement of a subsequent personal appearance before

that court.” CP at 45. The instruction did not provide that the State had the burden to prove that




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Leatherman failed to appear in court “as required,” which is the language used in RCW

9A.76.170(1).

       In Hart, this court addressed an argument identical to the one Leatherman makes here:

that the to-convict instruction relieved the State of its burden to prove that he had failed to appear

at a court hearing “as required.” 195 Wn. App. at 455. The trial court’s to-convict instruction

(identical to the instruction given here) did not include “as required” after “the defendant failed

to appear before a court.” Id. at 456. But the instruction required the State to prove beyond a

reasonable doubt that the defendant “had been released by court order or admitted to bail with

knowledge of the requirement of a subsequent personal appearance before that court.” Id. The

court held that the instruction did not violate the defendant’s due process rights because the

instruction included the element of a required subsequent appearance. Id.

       Leatherman contends that Hart was wrongly decided because its reasoning conflates two

different elements of bail jumping. But we agree with the analysis in Hart.

       As a result, Leatherman’s challenge to the to-convict instruction is not a manifest

constitutional error because this court already has determined that identical language satisfies

due process. Accordingly, we decline to review Leatherman’s challenge.

D.     IMPOSITION OF CRIMINAL FILING FEE

       Leatherman argues that under the 2018 amendments to RCW 36.18.020(2)(h), we must

strike the criminal filing fee imposed on him because he was indigent. The State does not

oppose striking this fee.

       The trial court imposed as a mandatory LFO a $200 criminal filing fee. In 2018, the

legislature amended RCW 36.18.020(2)(h), which now prohibits imposition of the criminal filing

fee on an defendant who is indigent as defined in RCW 10.101.010(3)(a)-(c). The Supreme




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Court in State v. Ramirez held that amendments to the LFO statutes apply prospectively to cases

pending on direct appeal. 191 Wn.2d 732, 749-50, 426 P.3d 714 (2018).

        At Leatherman’s sentencing, the trial court approved an order of indigency for

Leatherman to appeal his case at public expense. As the State notes, the record is unclear if the

trial court found Leatherman indigent based on the definitions in RCW 10.101.010(3)(a)-(c).

But given the trial court’s finding that Leatherman was indigent for purposes of appeal, the State

does not oppose vacation of the criminal filing fee. Accordingly, we remand for the trial court to

strike the criminal filing fee from the judgment and sentence.

                                          CONCLUSION

        We affirm Leatherman’s conviction for first degree animal cruelty and bail jumping, but

we remand for the trial court to strike the criminal filing fee from the judgment and sentence.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                      MAXA, C.J.


 We concur:



 MELNICK, J.




 SUTTON, J.




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