       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                           DIVISION ONE

STATE OF WASHINGTON,          )                         No. 81390-1-I
                              )
                 Respondent,  )
                              )
           v.                 )                         UNPUBLISHED OPINION
                              )
DAVID GARRETT MICHAEL THOMAS, )
                              )
                 Appellant.   )

       BOWMAN, J. — David Garrett Michael Thomas argues that there is

insufficient evidence to support his jury convictions for attempted first degree

assault while armed with a deadly weapon and second degree assault while

armed with a deadly weapon and that the court improperly allowed impeachment

evidence. In a statement of additional grounds, he also asserts evidentiary

errors, prosecutorial misconduct, and cumulative error. Because sufficient

evidence supports Thomas’ convictions, he fails to identify any evidentiary error,

and the prosecutor did not commit misconduct, we affirm.

                                           FACTS

       Thomas and Syreeta Funk dated for about three years. The relationship

ended in May 2016 after an incident that led to a court order prohibiting Thomas

from contacting Funk. Despite the no-contact order, Funk and Thomas remained

friends.



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       Close to midnight on May 12, 2017, Thomas called Funk asking for her

help. He was “really depressed” and “wanted support.” Because of the

restraining order, Funk was reluctant to meet Thomas. But “he was really cold”

and she had some of his clothing, so she agreed to “help him out by bringing him

his clothes.”

       They met in an empty parking lot with no lights. Thomas got into Funk’s

car and would not leave. He was despondent, not taking his mental health

medication, and “very suicidal.” Funk drove to a nearby well-lit gas station,

parked and exited her car, and called 911 to report Thomas for violating the no-

contact order.

       Several Vancouver Police Department officers arrived at the gas station,

including Officer Branden Schoolcraft, Officer Sean Suarez, Officer Kathryn

Endresen, and Officer Trent Harris. Thomas got out of Funk’s car and began

walking across the gas station parking lot and away from the police officers. The

officers identified themselves as the police and shouted for Thomas to stop.

Thomas turned around and faced the officers but continued walking backward.

He told the officers, “I didn’t do anything, what do you want,” as he backed away.

       When Thomas reached the curb of a main road, he assumed a “bladed” or

“boxer” stance with his fists clenched. Thomas “was flexing” and “yelling” at the

officers to “come on.” In the poor lighting, Officer Schoolcraft noticed something

black in Thomas’ right hand, which he described as similar to “one of the large

[S]harpie type markers.”1



       1   ”Sharpie” is a brand of permanent markers, pens, and highlighters.


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        The officers concluded that Thomas would not submit to arrest. Officer

Suarez tased Thomas “but it didn’t have any effect.” Officer Schoolcraft tried to

grab Thomas’ left arm. Thomas “punched” Officer Schoolcraft in the nose, which

made a “pop” sound and began pouring blood. Officer Schoolcraft did his best to

hold onto Thomas’ left side while Officer Suarez tried to grab Thomas from the

front. Officer Endresen tried to grab Thomas from the right. Thomas was

“throwing punches” and “actively trying to pull away and basically get free.”

        The struggle moved from the curb into the middle of the “major

roadway[ ].” Officer Harris ran toward the fight, lifted Thomas’ leg off the ground

to throw him off balance, and “the whole group fell to the ground.” Thomas

continued to punch and fight. Officer Schoolcraft executed a “[carotid] restraint,”2

rendering Thomas momentarily unconscious. The officers began placing

handcuffs on Thomas. But Thomas regained consciousness before they could

secure the handcuffs and the struggle continued. The officers eventually

succeeded in handcuffing Thomas and ending the altercation.

        After the officers handcuffed Thomas, Officer Suarez saw a folding knife

lying open on the street next to the location of the struggle. The knife was black

with a three-inch blade. None of the officers were missing their knives.

According to Officer Schoolcraft, the knife looked like the black item he saw in

Thomas’ hand that he thought was a large permanent marker.

        Officer Schoolcraft went to the hospital for examination of his nose, which

was broken. On his way to meet Officer Schoolcraft at the hospital, Officer


        2  “Carotid restraint” is a technique where bilateral pressure applied to arteries temporarily
restricts blood flow to the brain, leading to unconsciousness.


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Suarez noticed a “sharp pain” in his left arm. He showed his arm to Officer

Schoolcraft, who found a cut in Officer Suarez’s uniform and “a small puncture

followed by a cut” on his arm. Officer Suarez looked in the mirror and saw a “big

cut” in his uniform shirt and “a small puncture wound” and cut on his arm. The

wound appeared to be a stab wound. Officer Schoolcraft then examined his vest

and discovered a cut through his police patch that had not existed before the

altercation with Thomas.

       The State charged Thomas with attempting to assault Officer Schoolcraft

in the first degree while armed with a deadly weapon—“to wit: a knife”—and

assaulting Officer Suarez in the second degree while armed with a deadly

weapon—a knife.3 Thomas asserted he was not guilty by reason of insanity.

Thomas claimed that he has suffered from severe mental illness since his

teenage years. He was diagnosed with schizoaffective disorder and has tried “a

lot” of medications to manage his illness.

       A jury found Thomas guilty as charged. The court imposed a high-end

standard-range sentence, including deadly weapon enhancements.

       Thomas appeals.

                                        ANALYSIS

Sufficiency of the Evidence

       Thomas challenges the sufficiency of the evidence underlying his

convictions for attempted first degree assault of Officer Schoolcraft while armed



       3 The State also charged Thomas with third degree assault of Officer Endresen while
armed with a deadly weapon as well as violation of a domestic violence court order. Thomas
does not raise any issues as to these charges.


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with a deadly weapon and second degree assault of Officer Suarez while armed

with a deadly weapon.

       The principles of due process require the State to prove every element of

a crime beyond a reasonable doubt. State v. Cantu, 156 Wn.2d 819, 825, 132

P.3d 725 (2006). “Evidence is sufficient to support a conviction if, viewed in the

light most favorable to the prosecution, it permits any rational trier of fact to find

the essential elements of the crime beyond a reasonable doubt.” State v.

Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). In reviewing a claim of the

sufficiency of the evidence, we draw all reasonable inferences from the evidence

in the State’s favor. State v. Cardenas-Flores, 189 Wn.2d 243, 265-66, 401 P.3d

19 (2017). We consider circumstantial and direct evidence equally reliable.

Cardenas-Flores, 189 Wn.2d at 266. But we “defer to the trier of fact on issues

of conflicting testimony, credibility of witnesses, and the persuasiveness of the

evidence.” Thomas, 150 Wn.2d at 874-75.

       Attempted Assault in the First Degree

       The State charged Thomas with attempting to assault Officer Schoolcraft

in the first degree while armed with a knife. For an attempt crime, the State must

prove beyond a reasonable doubt that ”with intent to commit a specific crime,”

Thomas performed an act “which is a substantial step toward the commission of

that crime.” RCW 9A.28.020(1); State v. Nelson, 191 Wn.2d 61, 71, 419 P.3d

410 (2018). “A substantial step is an act that is ‘strongly corroborative’ of the

actor’s criminal purpose.” State v. Johnson, 173 Wn.2d 895, 899, 270 P.3d 591

(2012) (quoting State v. Luther, 157 Wn.2d 63, 78, 134 P.3d 205 (2006)). “Any




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slight act done in furtherance of a crime constitutes an attempt if it clearly shows

the design of the individual to commit the crime.” State v. Price, 103 Wn. App.

845, 852, 14 P.3d 841 (2000).

       Here, the State must prove that Thomas’ actions were a substantial step

toward committing the crime of first degree assault. A person commits first

degree assault when “with intent to inflict great bodily harm,” he assaults another

with a “deadly weapon or by any force or means likely to produce great bodily

harm or death.” RCW 9A.36.011(1)(a).

       Thomas argues the State failed to prove beyond a reasonable doubt that

he used a deadly weapon during the struggle with the officers. Specifically, he

contends the record contains “no direct evidence” that he used a knife to assault

Officer Schoolcraft. But the record includes significant circumstantial evidence

that Thomas brandished a knife.

       Officer Schoolcraft testified that Thomas held something black in his hand.

Later, Officer Suarez found a black folding knife lying open on the ground near

the struggle. The knife did not belong to any of the officers. And Officer

Schoolcraft testified that the knife resembled the black object he saw in Thomas’

hand. Finally, Officer Sanchez had a wound consistent with a knife wound and

both Officer Schoolcraft and Officer Sanchez had cuts in their uniforms that were

not present before the struggle with Thomas. Viewing the evidence in the light

most favorable to the State, a reasonable juror could find beyond a reasonable

doubt that Thomas possessed and used a deadly weapon in his attempt to

assault Officer Schoolcraft.




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       Thomas also argues the State failed to prove that he intended to inflict

great bodily harm on Officer Schoolcraft. “A person acts with intent or

intentionally when he or she acts with the objective or purpose to accomplish a

result which constitutes a crime.” RCW 9A.08.010(1)(a). First degree assault

requires “specific intent,” or “intent to produce a specific result.” State v. Elmi,

166 Wn.2d 209, 215, 207 P.3d 439 (2009). “Specific intent cannot be presumed,

but it can be inferred as a logical probability from all the facts and

circumstances.” State v. Wilson, 125 Wn.2d 212, 217, 883 P.2d 320 (1994).

Circumstantial and direct evidence apply equally in proving intent. State v.

Johnson, 188 Wn.2d 742, 763, 399 P.3d 507 (2017).

       The evidence at trial showed that Thomas at first walked away from the

officers. He then turned to face them, assumed a fighting stance, and

“screamed,” “[C]ome on.” Officer Schoolcraft saw a black object in Thomas’

hand. After the altercation, Officer Suarez found an open folding knife on the

ground nearby. Officer Schoolcraft testified that the black object he first saw in

Thomas’ hand also “resemble[d]” “a knife that would have been closed.” A

reasonable juror could infer from these facts and circumstances that Thomas

confronted officers with a closed knife, opened the knife, and tried to use the

knife to inflict harm on Officer Schoolcraft. Sufficient evidence supports Thomas’

specific intent to inflict great bodily harm.

       Assault in the Second Degree

       The State charged Thomas with assaulting Officer Suarez in the second

degree while armed with a knife. To prove assault in the second degree, the




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State must show that Thomas assaulted Officer Suarez “with a deadly weapon.”

RCW 9A.36.021(1)(c). Thomas again claims the State failed to present sufficient

evidence that he used a deadly weapon.

      As discussed above, the circumstantial evidence is sufficient to show that

Thomas used a knife during the altercation. Officer Suarez had a puncture

wound and small cut in his left arm after the struggle with Thomas and found a

cut in his uniform that was not there before the incident. Viewed in the light most

favorable to the State, a reasonable juror could conclude that Thomas assaulted

Officer Suarez with a deadly weapon.

Impeachment Evidence

      Thomas contends the trial court abused its discretion by admitting jail

telephone calls with Funk because they were extrinsic evidence offered to

impeach Funk on a collateral matter. We review a trial court’s decision to admit

or exclude evidence for abuse of discretion. State v. Gunderson, 181 Wn.2d

916, 922, 337 P.3d 1090 (2014). A trial court abuses its discretion when a

decision is manifestly unreasonable or based on untenable grounds or reasons.

Gunderson, 181 Wn.2d at 922.

      Funk testified extensively at trial. Much of her testimony was favorable

toward Thomas. She talked at length about Thomas’ mental health, a major

issue at trial and crucial to his insanity defense. On cross-examination, Funk

said that she had not spoken to Thomas “recently.” Yet the State had obtained

recorded jail telephone calls of Funk speaking to Thomas a few days before the

start of trial. In those calls, Funk expressed her love and support for Thomas.




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The State moved to admit the calls to show Funk’s “bias and motive” in favor of

Thomas. The trial court admitted the evidence.

         Extrinsic evidence cannot be used to impeach a witness on a collateral

issue. State v. Lubers, 81 Wn. App. 614, 623, 915 P.2d 1157 (1996). But cross-

examination to expose bias is not impeachment on a collateral matter. See State

v. McDaniel, 37 Wn. App. 768, 772, 683 P.2d 231 (1984). The State clearly

offered the recordings of Funk expressing her personal feelings and support for

Thomas as evidence of her bias. The trial court did not err in admitting the

evidence.

Statement of Additional Grounds

         Thomas raises several claims in his statement of additional grounds for

review, including evidentiary errors, prosecutorial misconduct, and cumulative

error.

         Evidence of Prior Crimes

         Thomas contends the trial court erred in admitting evidence of his prior

crimes. We review evidentiary rulings for abuse of discretion. State v. Halstien,

122 Wn.2d 109, 126, 857 P.2d 270 (1993). A trial court abuses its discretion

when it bases its decision on untenable grounds or reasons. State v. Vars, 157

Wn. App. 482, 494, 237 P.3d 378 (2010).

         Evidence of prior convictions is generally inadmissible as propensity

evidence. ER 404(b). However, “[a] party may open the door to otherwise

inadmissible evidence by introducing evidence that must be rebutted in order to




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preserve fairness and determine the truth.” State v. Wafford, 199 Wn. App. 32,

36-37, 397 P.3d 926 (2017).

      During direct examination, Thomas testified, “Aside from being arrested, I

have never in my life have ever been assaultive, at the very least been

disrespect[ful] to any authority figure. I mean—I mean to any police officer.” On

cross-examination, the State moved to admit evidence of Thomas’ prior

convictions, including the 2016 fourth degree assault of Funk that led to the no-

contact order and a 2013 third degree assault conviction for “breaking a man’s

nose.” The State argued that Thomas “opened the door” to this evidence. The

trial court admitted the evidence, concluding:

      [B]ecause he’s indicated that at least although he’s, at the end,
      modified [his testimony] with authority figures, the direct impression
      he was trying to create was that he wasn’t a violent person and so
      he’s opened the door for instance[s] where he was violent in the
      past.

      Thomas’ statement that he has “never” been assaultive opened the door

to this otherwise inadmissible evidence. The trial court did not abuse its

discretion by admitting the evidence.

      Opinion on Mental Illness

      Thomas contends the trial court allowed Officer Schoolcraft to offer an

improper lay opinion about Thomas’ mental health in violation of ER 701 and

702. He argues that Officer Schoolcraft’s testimony amounted to an opinion on

the ultimate issue in his case because mental health was the “core element” of

his defense.




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       We review evidentiary rulings for abuse of discretion. Halstien, 122 Wn.2d

at 126. Lay witnesses may testify as to opinions “which are (a) rationally based

on the perception of the witness, (b) helpful to a clear understanding of the

witness’ testimony or the determination of a fact in issue, and (c) not based on

scientific, technical, or other specialized knowledge.” ER 701. A witness may

not offer an opinion on the guilt or veracity of the defendant because it is unfairly

prejudicial and invades the exclusive province of the jury. State v. Demery, 144

Wn.2d 753, 759, 30 P.3d 1278 (2001). But “otherwise admissible” opinion

testimony “is not objectionable because it embraces an ultimate issue to be

decided by the trier of fact.” ER 704.

       The State questioned Officer Schoolcraft about his observations of

Thomas at the time of the incident. Officer Schoolcraft testified about his formal

training in identifying signs of mental illness and whether he observed Thomas

display conduct consistent with mental illness during his struggle with police. For

example, the prosecutor asked Officer Schoolcraft whether Thomas appeared

“confused” or “unaware of what was happening” and whether Thomas was

“speaking to himself” or making “bizarre statements.” The prosecutor asked

Officer Schoolcraft if he had “occasion to come into contact with people who

were exhibiting signs of mental illness or who appear psychotic” while working as

a police officer. Officer Schoolcraft answered, “Frequently, yes.” He then

testified that he did not observe any behavior consistent with mental illness

during his interaction with Thomas.




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       Thomas bore the burden of establishing the defense of insanity by a

preponderance of the evidence. RCW 10.77.030(2); State v. Carneh, 153 Wn.2d

274, 282, 103 P.3d 743 (2004). Thomas offered the expert testimony of clinical

and forensic psychologist Dr. Alexander Duncan in support of his insanity

defense. Dr. Duncan testified extensively about Thomas’ mental health history

and current diagnoses. Dr. Duncan testified that whether Thomas was criminally

insane during the incident is “ultimately the jurors[’] determination,” but in his

opinion, Thomas was experiencing “acute and consuming” symptoms of

schizoaffective disorder at the time of the incident, including hallucinations,

depression, and psychosis. Thomas’ behavior at the time of the incident was an

important factor Dr. Duncan considered in rendering his opinion that Thomas was

”hallucinating at the time of . . . these offenses,” presenting symptoms of

schizoaffective disorder, and “acutely psychotic” and that Thomas’ mental state

“fueled his behavior” of not appreciating “the risk he was putting towards officers

or himself.”

       The court instructed the jury that to find Thomas not guilty by reason of

insanity,

       you must find that, as a result of mental disease or defect, the
       defendant’s mind was affected to such an extent that the defendant
       was unable to perceive the nature and quality of the acts with which
       the defendant is charged or was unable to tell right from wrong with
       reference to the particular acts with which the defendant is charged.

       Officer Schoolcraft’s observations of Thomas’ behavior was helpful to the

jury in determining whether Thomas was not guilty by reason of insanity. Officer

Schoolcraft based his testimony on his training and experience and the testimony




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was not predicated on scientific, technical, or specialized knowledge. The

testimony was not an improper lay witness opinion.

       Prosecutorial Misconduct

       Thomas claims the prosecutor violated his right to a fair trial by improperly

shifting the burden of proof of the insanity defense and making inflammatory

statements about facts not in evidence.

       To prove prosecutorial misconduct, Thomas must establish the conduct at

issue was both improper and prejudicial in the context of the entire record and

circumstances at trial. State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126

(2008). When, as here, the defendant fails to object at trial, he waives error

absent misconduct 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). To prove this level of misconduct, Thomas “must show that (1)

‘no curative instruction would have obviated any prejudicial effect on the jury’ and

(2) the misconduct resulted in prejudice that ‘had a substantial likelihood of

affecting the jury verdict.’ ” Emery, 174 Wn.2d at 761 (quoting State v.

Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43 (2011)).

       We review statements in a prosecutor’s closing arguments in the context

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

argument, and the jury instructions. State v. Boehning, 127 Wn. App. 511, 519,

111 P.3d 899 (2005). A prosecutor has wide latitude to draw reasonable

inferences from the evidence during closing argument. Boehning, 127 Wn. App.




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at 519. “However, a prosecutor may not make statements that are unsupported

by the evidence and prejudice the defendant.” Boehning, 127 Wn. App. at 519.

       Thomas claims the prosecutor made comments that improperly placed the

burden of proof for the insanity defense on him. But insanity is an affirmative

defense, and Thomas bears the burden of establishing the defense of insanity by

a preponderance of the evidence. RCW 10.77.030(2); Carneh, 153 Wn.2d at

282. The court instructed the jury on the correct burden of proof. The

prosecutor’s arguments “that placed the ‘burden of proof’ on the defense” were

not improper.

       Thomas also cites several examples of the prosecutor’s statements during

closing argument that he contends are unsupported by the evidence. These

statements mainly pertain to Thomas’ use of a knife, such as “the defendant is

holding the knife in his right hand”; Thomas “breaks Officer Schoolcraft’s nose,

tries to stab him, cuts the patch, [and] stabs Suarez in the arm”; and Thomas

“has the knife in his right hand . . . [and] flips out the blade at some point.”

Thomas argues that these statements were improper because no witness or

evidence proved he possessed a knife or stabbed an officer.

       The prosecutor statements were inferences reasonably drawn from the

testimony. Officer Schoolcraft saw an object consistent with a closed folding

knife in Thomas’ right hand. Later, Officer Suarez found an open folding knife on

the ground near the struggle and a stab wound on his arm. Officer Schoolcraft

and Officer Suarez also had cuts in their uniforms. Considering the wide latitude




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afforded prosecutors during closing argument, these statements were

permissible inferences from the evidence.

       Cumulative Error

       Thomas argues that cumulative error tainted his trial. The cumulative

error doctrine requires reversal when the combined effect of several errors

denies the defendant a fair trial. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d

646 (2006). “The doctrine does not apply where the errors are few and have little

or no effect on the outcome of the trial.” Weber, 159 Wn.2d at 279. There are no

errors to support application of the doctrine in this case.

       We affirm Thomas’ convictions for attempted assault in the first degree

while armed with a deadly weapon and assault in the second degree while armed

with a deadly weapon.




WE CONCUR:




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