                                                                           FILED
                                                                        JULY 23, 2020
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




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

STATE OF WASHINGTON,                          )
                                              )         No. 36574-3-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
JAMES M. KOOGLER,                             )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       SIDDOWAY, J. — James Koogler appeals his conviction for the second degree

assault of his wife. He admitted at trial that he was intoxicated and angry at the time of

the alleged assault and even told his wife he would kill her if she ever again abandoned

him in cold snowy weather. But he argues that the State presented insufficient evidence

that he intended to cause her to fear bodily injury. He also contends he received

ineffective assistance of counsel when his lawyer failed to have him clarify an

incriminating answer given in cross-examination.

       The evidence was sufficient and Mr. Koogler fails to demonstrate that his lawyer’s

representation was deficient. For those reasons, and because Mr. Koogler raises no

meritorious issues in a statement of additional grounds, we affirm.
No. 36574-3-III
State v. Koogler


                    FACTS AND PROCEDURAL BACKGROUND

       In December 2017, James Koogler had been married to Karolyn Koogler for eight

years. She had adult children and grandchildren from earlier marriages. During the last

week of December, Karolyn’s son Colin Mathiesen and his wife and two children had

traveled from Western Washington to stay at the Kooglers’ home in Spokane. Karolyn’s

mother was flying in from Olympia on the afternoon of December 29. Plans were made

for the Kooglers, Colin’s family, the family of Karolyn’s daughter Sarah, and Karolyn’s

mother to spend time that evening at a roller skating rink, followed by pizza.

       At around 1:00 in the afternoon of the 29th, Mr. Koogler and Karolyn left home

with plans to go grocery shopping before driving to the airport to pick up Karolyn’s

mother. Mr. Koogler wanted to have a drink first, so they stopped at a bar—Birdy’s

Sports Bar—where Karolyn suggested they had time for one beer. Mr. Koogler did not

stop at one beer, and Karolyn eventually told him she needed to leave for the grocery

store and would pick him up later. It turned out she had lost too much time to finish the

grocery shopping and get to the airport, so she called Colin, who agreed to pick up his

grandmother. Colin also agreed to pick up Mr. Koogler. Through text and voice mail

messages, Karolyn and Colin notified Mr. Koogler of the changing plans, but Mr.

Koogler did not hear his phone or check for messages.

       Colin traveled to Birdy’s at around 6:00 p.m., but Mr. Koogler was not there.

After talking to the bartenders about where Mr. Koogler might have gone, Colin looked

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State v. Koogler


for him at a couple of other local bars without success. He telephoned still other bars,

again without success. The family roller skating and pizza went forward as planned, but

Mr. Koogler never arrived.

       When it was time to go home, it was decided that Colin’s wife and children would

stay with Sarah’s family that night and Colin would return to the Koogler home with his

mother. Colin would later testify that this was “because I didn’t want my children to be

there when Mr. Koogler returned intoxicated because of past situations.” Report of

Proceedings (Oct. 29, 2018) (RP) at 53.

       Colin and Karolyn arrived at the Koogler home at around 9:00 p.m. Mr. Koogler

was not there. They talked for a few moments and then Ms. Koogler went to bed. It had

been snowing, so Colin went out to shovel the driveway. He continued shoveling the

driveway until Mr. Koogler arrived, having been given a ride home by an employee of a

bar. While Mr. Koogler sat in the truck and talked to the employee for about 15 minutes,

Colin went back into the house.

       Mr. Koogler would later testify that he had continued drinking beer at Birdy’s

until it started to get dark, at which point, he was given a ride part way to the family’s

pizza destination and began walking, but could not find it. He continued walking until

around 7:00 p.m., when he stopped at another bar. He later described himself as “feeling

left behind and abandoned.” RP (Oct. 26, 2018) at 258. He ended up at a third bar,



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State v. Koogler


where he drank a couple of pints of beer until an employee who was getting off work

offered him a ride home.

       Unbeknownst to Colin, Mr. Koogler had learned a day or two earlier that Karolyn

had incurred almost $30,000 in credit card debt without Mr. Koogler’s knowledge. A

substantial part of the borrowing had been to help Karolyn’s son Mark with a car

purchase and education expenses. Karolyn was aware that Mr. Koogler had learned

about the debt, and viewed him as initially kind and understanding about it.

       But when Mr. Koogler entered his house on the night of December 29, he was

angry, and Karolyn assumed it was about the debt. When he entered the home, Colin was

in the guest bedroom folding laundry. Mr. Koogler walked past and entered his and

Karolyn’s bedroom where, according to Colin, he immediately began yelling. Colin

heard Mr. Koogler yell at Karolyn about a $30,000 debt and that “she was useless and

nobody would want her.” RP (Oct. 29, 2018) at 58. Mr. Koogler accused her and her

family of leaving him to walk home through a snowbank, and yelled, “If you ever do

[that] again, I will kill you.” Id. at 59. Colin then heard the sound of a shotgun being

racked coming from the Kooglers’ bedroom. When he heard the shotgun racked a second

time, he ran out of the house and called police. Id.

       According to Karolyn, when Mr. Koogler entered their bedroom, she was lying in

bed but was not asleep. She would later testify that as he entered, he switched on the

ceiling light and yelled, “You are a dumb fucking bitch. You are so fucking stupid, bitch,

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State v. Koogler


cunt. Nobody will ever want you. You are such a fucking dumb bitch, you are fucking

dead meat and I want to fucking kill you.” RP (Oct. 26, 2018) at 143, 151. She was

scared and pretended to be asleep.

       Karolyn would later testify that as Mr. Koogler continued to insult her, he picked

up a shotgun that he kept on his side of the bed, racked it a couple times, and said “‘Does

this sound real, fucking bitch? I’m going to fucking kill you.’” RP (Oct. 26, 2018) at

144-45. She claims he also pushed the muzzle of the gun into her back for 30 seconds to

a minute and said, “‘Does this feel fucking real, bitch? I’m going to fucking kill you.’”

Id. at 147. Karolyn did not know if the gun was loaded. She testified that as it was held

to her back, she feared Mr. Koogler was going to kill her. She tried to be very still

because she thought “if I do anything to provoke him, who knows, he—it would have

probably gone off.” Id. at 149.

       It was around 10:30 p.m. when four Spokane County sheriff’s officers responded

to the report of a domestic violence incident with a weapon involved. They waited

outside and watched the Kooglers’ bedroom window as dispatch called the Kooglers’

phone numbers, attempting to make contact. Mr. Koogler answered one of the calls and

at the dispatcher’s request gave the phone to Karolyn, who was told to leave the house

immediately. She did, and was moved to a safe location by one of the officers. Mr.

Koogler then came out and was placed into handcuffs. One of the officers described him

as physically cooperative but “obviously intoxicated.” RP (Oct. 29, 2018) at 79.

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No. 36574-3-III
State v. Koogler


       According to Karolyn, as the officers were leading Mr. Koogler away from the

home, he looked at her and said, “You’re fucking dead meat as soon as I get out, bitch.”

RP (Oct. 26, 2018) at 159.

       Mr. Koogler was charged with second degree assault with a deadly weapon

against a family member and harassment with a threat to kill against a family member.

The State later amended the information to add a firearm enhancement to each count.

       At trial, the State called as witnesses Colin, Karolyn, and three of the responding

officers. They testified to the events of December 29. Although the officers testified that

Mr. Koogler yelled at Karolyn as he was being led away from the home, none of them

corroborated her testimony that he had threatened violence against her “[when] I get out.”

One testified that Mr. Koogler had said, “You’re dead meat.” RP (Oct. 26, 2018) at 207.

       Mr. Koogler was the sole defense witness. He testified that when he entered his

and Karolyn’s bedroom, he saw her lying on her stomach, “stiff as a board with her fists

clenched,” and he knew she was not asleep. RP (Oct. 26, 2018) at 239. He claimed he

asked her twice why she left him, but she did not respond. He admitted he was

intoxicated and angry because he “thought [he]’d been abandoned that afternoon, and

[he] had to walk through the snow.” Id. at 240.

       He testified he never pointed his shotgun at Karolyn or held it to her back. He

admitted he picked up the shotgun and racked it twice, but testified that this was only to



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No. 36574-3-III
State v. Koogler


make sure it was unloaded because it was not where he normally kept it, which concerned

him.

       Mr. Koogler testified that he realized later, by looking at his phone, that both

Karolyn and Colin had tried to reach him during the afternoon and evening. He admitted

he had been a “drunken asshole” and testified that if he had not been arrested and realized

the next morning that he was not abandoned he would have apologized. RP (Oct. 26,

2018) at 247.

       In detailing how he racked the shotgun, Mr. Koogler testified that he had “picked

the gun up, pointed it up in the air. I racked it, checked the chamber with my finger. I

checked the elevator. I then checked the magazine. I slammed it shut, racked it open

again.” Id. at 245. He testified that when racking the shotgun, he had said, “‘this sounds

real loud, doesn’t it.’” Id. at 246. The prosecutor explored that statement on cross-

examination, eliciting the following testimony:

       Q        And it’s your testimony that what you said after racking the shotgun,
                I guess the first time, was “this sounds real loud now, doesn’t it?”
       A        I believe what it should have been was “this sounds real loud.”
       Q        Sounds real loud.
                Why did you say that?
       A        I wanted Karolyn to say something.
       Q        So you were drawing her attention to the fact that you had a shotgun,
                right?
       A        I just said that. I presumed she knew I had it when I racked it.
       Q        But then you said, “This sounds real loud”?

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No. 36574-3-III
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       A         I wanted a reaction. I wanted her to talk to me.
       Q         While upset and intoxicated and threatening her—
       [DEFENSE COUNSEL]: Objection. That’s argumentative.
       THE COURT: Overruled.
       Q         (By [THE PROSECUTOR])—you wanted to make sure she knew
                 you had the shotgun and you wanted to get her attention so she’d
                 talk to you?
       A         I just wanted her to talk to me.

Id. at 266-67.

       Mr. Koogler admitted saying to Karolyn while in the bedroom, “[i]f you ever do

this again, I’ll kill you,” with “this” meaning abandoning him. Id. at 247. He testified he

was not joking when he said it, but he did not mean it. Mr. Koogler did not recall saying

any of the other things Karolyn alleged, but said he may have told her she was “‘so

fucking stupid.’” Id. at 248. He denied that once outside the home, he had ever said to

Karolyn “‘you’re fucking dead meat as soon as I get out, bitch.’” Id. at 252. Rather, he

testified, he had told Karolyn, “‘We’re through.’” Id. at 253.

       In closing argument, the prosecutor reminded the jury of Mr. Koogler’s testimony

that he had wanted a reaction from Karolyn when he commented, as racking the shotgun,

that it “sounds real loud.” He told the jury “the truth kind of came out a little bit” with

that answer, and, “He’s making that noise to create a reaction, to create a fear in Karolyn.

I mean, there’s no way around it.” Id. at 310-11.




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No. 36574-3-III
State v. Koogler


         The jury found Mr. Koogler guilty of the assault count, but acquitted him of

harassment (threat to kill). His motion to arrest the judgment was denied. The trial court

sentenced Mr. Koogler to a term of total confinement of 39 months, consisting of a three

month sentence for the assault (the low end of the standard range) plus 36 months for the

firearm enhancement. Mr. Koogler appeals.

                                         ANALYSIS

         Mr. Koogler challenges the sufficiency of the evidence to establish the intent

required for assault, and contends he received ineffective assistance of counsel when his

trial lawyer failed to have him clarify his testimony about why he said “this sounds real

loud.”

I.       THE EVIDENCE WAS SUFFICIENT

         The jury was properly instructed that

         [a]n assault is an act done with the intent to create in another apprehension
         and fear of bodily injury and which, in fact, creates in another a reasonable
         apprehension and imminent fear of bodily injury even though the actor did
         not actually intend to inflict bodily injury.

RP (Oct. 26, 2018) at 285-86 (Instruction 7). Mr. Koogler contends there was

insufficient evidence to support the jury’s implicit finding that he intended to create in

Karolyn apprehension and fear of bodily injury.

         As a threshold matter, we reject Mr. Koogler’s argument that because he was

acquitted of the harassment count, the jury must not have believed Karolyn’s testimony



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No. 36574-3-III
State v. Koogler


and its verdict must necessarily have been based on a misapprehension of his testimony.

The offenses have different elements, so the verdicts are not inconsistent. Harassment

(threat to kill) focuses on Mr. Koogler’s alleged threats to kill Karolyn and whether, in

the context and circumstances, a reasonable person in Mr. Koogler’s position would

foresee that the threat would be interpreted as serious. See id. at 287 (Instruction 12).

Assault could be found based on evidence that Mr. Koogler racked a gun, placed its

muzzle on Karolyn’s back, and asked her loudly whether it sounded “real” or “loud.”

Moreover, even inconsistency would not necessarily require reversal, because “[j]uries

return inconsistent verdicts for various reasons, including mistake, compromise, and

lenity.” State v. Goins, 151 Wn.2d 728, 733, 92 P.3d 181 (2004). Because it is generally

difficult to discern “which was the verdict that the jury ‘really meant,’” courts will

uphold a conviction despite a conflicting acquittal if there is sufficient evidence to

support the jury’s guilty verdict. Id.

       In testing for the sufficiency of the evidence, then, we assume that Karolyn’s

testimony was believed. The test for sufficiency of the evidence is “whether, after

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

could have found guilt beyond a reasonable doubt.” State v. Salinas, 119 Wn.2d 192,

201, 829 P.2d 1068 (1992). All reasonable inferences from the evidence are drawn in

favor of the State and are interpreted strongly against the defendant. Id. “A claim of

insufficiency admits the truth of the State’s evidence and all inferences that reasonably

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State v. Koogler


can be drawn therefrom.” Id. This court’s role is not to reweigh the evidence and

substitute its judgment for that of the trier of fact. State v. Green, 94 Wn.2d 216, 221,

616 P.2d 628 (1980). “Credibility determinations are for the trier of fact and are not

subject to review.” State v. Mines, 163 Wn.2d 387, 391, 179 P.3d 835 (2008).

          Whether Mr. Koogler had the criminal intent to assault Karolyn resides

exclusively within his mind, “but it may be proved by facts and circumstances more

readily perceived by others.” State v. Bencivenga, 137 Wn.2d 703, 710, 974 P.2d 832

(1999). “Nothing forbids a jury, or a judge, from logically inferring intent from proven

facts, so long as it is satisfied the state has proved that intent beyond a reasonable doubt.”

Id. at 709. Appellate courts will not “invade the province of the fact finder by

appropriating . . . the role of factually determining the reasonableness of an inference.”

Id. at 708.

          A jury may infer intent to create apprehension of bodily injury from the

defendant’s pointing a gun at the victim, unless the victim knew the weapon was

unloaded. State v. Eastmond, 129 Wn.2d 497, 500, 919 P.2d 577 (1996). Here, not only

is Mr. Koogler alleged to have pointed the gun and placed it in Karolyn’s back, but by his

own admission, he was angry and racked the gun loudly, twice. By all accounts other

than his own, he was yelling at her, and both Colin and the testifying officers heard him

make threats of several sorts. Sufficient evidence supports an inference of criminal

intent.

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State v. Koogler


II.    INEFFECTIVE ASSISTANCE OF COUNSEL IS NOT SHOWN

       Mr. Koogler argues his attorney provided ineffective assistance when he failed to

ask clarifying questions so that Mr. Koogler could explain what he meant when he

testified that in saying to Karolyn, “this sounds real loud,” was to get a reaction.

       To succeed on a claim of ineffective assistance of counsel, a defendant must

establish that defense counsel’s representation was deficient, i.e., it fell below an

objective standard of reasonableness, and the deficient representation prejudiced the

defendant, i.e., there is a reasonable probability that, except for counsel’s unprofessional

errors, the result of the proceeding would have been different. State v. McFarland, 127

Wn.2d 322, 334-35, 899 P.2d 1251 (1995). If a party fails to demonstrate one element, a

reviewing court need not analyze the other. State v. Foster, 140 Wn. App. 266, 273, 166

P.3d 726 (2007). Both prongs must be established based on facts in the record developed

below. McFarland, 127 Wn.2d at 335-37.

       Courts are highly deferential to counsel’s decisions and there is a strong

presumption that counsel performed adequately. Strickland v. Washington, 466 U.S. 668,

689-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “[C]ounsel’s performance is adequate

as long as his challenged decisions ‘can be characterized as legitimate trial strategy or

tactics.’” State v. Carson, 184 Wn.2d 207, 221, 357 P.3d 1064 (2015) (quoting State v.

Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009)). Defendants must “affirmatively prove

prejudice.” Strickland, 466 U.S. at 693.

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No. 36574-3-III
State v. Koogler


       The problem with Mr. Koogler’s ineffective assistance claim is that it is easy to

conclude that trial counsel made a tactical decision not to question Mr. Koogler further

because of the risk that further questions and answers might hurt, not help. With the

benefit of hindsight, Mr. Koogler apparently now believes that his answers in cross-

examination were partly truthful and helpful (the “wanting Karolyn to talk to me” part)

and partly unartful and misunderstood (the “wanting to get a reaction” part). Even if

defense counsel immediately foresaw peril from Mr. Koogler’s “wanting to get a

reaction” testimony, however, spending more time on what Mr. Koogler said and thought

while angrily and drunkenly racking a shotgun presented its own peril. And, of course,

the prosecutor would have had the right to cross-examine Mr. Koogler further about his

“wanted a reaction” answer. Avoiding reemphasizing unfavorable evidence is a

legitimate trial tactic that cannot be the basis of a claim of ineffective assistance of

counsel. State v. Kloepper, 179 Wn. App. 343, 355-56, 317 P.3d 1088 (2014). Mr.

Koogler fails to demonstrate either deficient representation or prejudice.

                      STATEMENT OF ADDITIONAL GROUNDS

       In a pro se statement of additional grounds for review (SAG), Mr. Koogler raises

six.

       Law enforcement investigation. Mr. Koogler contends that law enforcement failed

to conduct a complete investigation because they had cameras in their patrol cars and,




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having been told by Karolyn that a shotgun had been held forcefully against her back, did

not document the presence or absence of marks or bruises on her back.

       Due process does not require law enforcement to search for exculpatory evidence.

State v. Armstrong, 188 Wn.2d 333, 345, 394 P.3d 373 (2017). Failure to preserve

evidence only violates due process where the State acts in bad faith. Id. Mr. Koogler has

not alleged or established bad faith.

       Karolyn’s testimony. Mr. Koogler argues Karolyn knew that the gun was

unloaded and her own testimony established that she had the opportunity to leave if she

felt threatened. We will not reweigh evidence or substitute our own judgment for that of

the jury. Green, 94 Wn.2d at 221.

       Insufficient evidence of Mr. Koogler’s intent. Mr. Koogler argues he was

justifiably checking the shotgun out of concern when he saw it had been moved, and the

State failed to prove an intent to assault. This issue was adequately addressed by counsel

and will not be reviewed again. See RAP 10.10(a).

       Juror Bias. Mr. Koogler argues that a juror should have “recused herself” because

she was a nurse who worked for the same company as Karolyn, so she may have been

acquainted with Karolyn or had prior knowledge of the events. SAG at 2. He claims he

expressed concern to his lawyer about the juror. Since the matter he now complains of

was recognized in the trial court, the defense needed to raise any objection at that time.

The issue was not preserved. See RAP 2.5(a).

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No. 36574-3-III
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       Inadequate time to prepare for trial. Mr. Koogler argues his rights under the Sixth

Amendment to the United States Constitution were violated when on a Friday afternoon,

after a potential plea bargain fell apart, the court ordered trial to begin the following

Monday morning. He claims he lost co-counsel as a result of the scheduling. Mr.

Koogler never asked for a continuance, so any claim that one was needed was not

preserved. RAP 2.5(a). He does not allege a deficiency in performance or prejudice as

the basis for an ineffective assistance of counsel claim.

       Sentence. Mr. Koogler states in passing that he feels his sentence is excessive. A

defendant generally cannot appeal a standard range sentence, see RCW 9.94A.585(1),

and Mr. Koogler identifies no basis for an exception.

       Affirmed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                   _____________________________
                                                   Siddoway, J.

WE CONCUR:



_____________________________                      _____________________________
Fearing, J.                                        Pennell, C.J.


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