                                                          FILED
                                                      DECEMBER 19, 2017
                                                    In the Office of the Clerk of Court
                                                  WA State Court of Appeals, Division Ill




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

STATE OF WASHINGTON,                        )         No. 34092-9-111
                                            )
                    Respondent,             )
                                            )
      V.                                    )         UNPUBLISHED OPINION
                                            )
JAMES MICHAEL COMBS,                        )
                                            )
                    Appellant.              )

      PENNELL,   J. - James Combs was convicted of second degree assault with a deadly

weapon after he confronted a cable technician who had been disconnecting the cable

services to his home. Mr. Combs appeals, claiming (1) the State presented insufficient

evidence to disprove self-defense, and (2) the prosecution improperly commented on his

pre-arrest silence. We disagree with Mr. Combs's contentions and affirm.
No. 34092-9-III
State v. Combs


                                         FACTS 1

      The events leading to Mr. Combs's conviction began when a Comcast2 technician

went to Mr. Combs's home to disconnect the cable. The technician was tasked with

performing a "hard disconnect," that involves disconnecting the main cable line to the

home. 1 Verbatim Report of Proceedings (Nov. 9, 2015) at 82. The technician was

wearing his "high-visibility vest" and was in a truck marked on both sides with

"Comcast" and "Prince Telecom." Id. at 85. Although there were several no trespassing

signs posted on Mr. Combs's property, the technician testified such signs do not prohibit

his access to the cable lines. The technician explained that he knocked on Mr. Combs's

door, but proceeded to the cable box after no one answered. The technician testified he

could hear a television on inside the home, and heard the programming switch off once he

disconnected the cable.

      Immediately after the cable was disconnected, Mr. Combs came out of the house,

opening the door with "pretty intense" force. Id. at 91. Armed with a metal baseball bat,

Mr. Combs took a full swing at the technician. The technician was able to dodge the

swing, which he believed would have struck his head with enough force to kill or at least




       1
           Our factual statement is based on the evidence presented at trial.
      2    The technician was employed by Prince Telecom, a subcontractor for Comcast.

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No. 34092-9-111
State v. Combs


seriously injure him. Mr. Combs took several more full or partial swings at the technician

and, with a generous use of profanity, accused the technician of trespassing. The

technician identified himself as a Comcast subcontractor multiple times. He testified Mr.

Combs continued to advance with the bat while the technician retreated toward his truck.

Once in the truck, the technician called 911.

       A deputy with the Spokane County Sheriffs Department responded to the 911 call.

The deputy spoke with the technician at the scene, took a statement, and then attempted to

speak with Mr. Combs. After additional deputies arrived, they knocked on the doors to

Mr. Combs's home but received no answer. The deputies conferred with their superior

about whether to remove Mr. Combs from his home through the use of a special weapons

and tactics (SWAT) team. They eventually decided to apply for a warrant and arrest Mr.

Combs on a different day. While this decision was being made, Mr. Combs's girlfriend

came out of the house to speak with the police. She indicated Mr. Combs was not going

to come out, and that she was sending text messages to Mr. Combs including information

that the police were considering using a SWAT team to arrest him. During his trial

testimony, the deputy acknowledged that Mr. Combs had no obligation to come out and

speak with the police. No SWAT team was ever called, and Mr. Combs eventually

received a summons in the mail.



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No. 34092-9-111
State v. Combs


       Mr. Combs offered a different version of events. He testified he was lying in bed

with his girlfriend when one of the walls started shaking as if someone was pounding on

it from the outside. He grabbed the baseball bat and went outside where he saw an

unknown person, the technician, standing near the house. Mr. Combs testified the

technician did not immediately identify himself. Mr. Combs further testified he

repeatedly demanded the technician leave the property for trespassing, was very scared

and angry, and did not swing the bat at the technician. He also testified the technician

advanced toward him (Mr. Combs) as ifto take the bat. The technician eventually

indicated he was with Comcast and retreated toward his truck. Mr. Combs then went

back into his home and called 911. Briefly, and not particularly relevant other than for

context, Mr. Combs was rude, arrogant, and disrespectful to the 911 dispatcher, and

refused to answer questions about his location or ifhe was armed. Mr. Combs

acknowledged and apologized for this behavior at trial.

      During cross-examination, the prosecutor asked Mr. Combs why he refused to

come out. Mr. Combs testified it was due to shock over what happened with the

technician and his conduct toward the 911 dispatcher. After several questions from the

prosecutor that appeared designed to rehash some of the more belligerent portions of

Mr. Combs's 911 call, the trial judge instructed the prosecutor to move on following a



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No. 34092-9-111
State v. Combs


defense objection for being argumentative. Mr. Combs also testified that he was afraid to

speak with the police after he learned they were considering bringing in a SWAT team.

Mr. Combs placed a second 911 call, which is also irrelevant other than for context, in

which he threatened legal action against the police for considering SWAT options.

       During closing argument, the prosecutor discussed the self-defense jJ'ry

instructions and argued self-defense did not apply because the technician was not a

malicious trespasser. Defense counsel argued the only reason Mr. Combs was charged

was because he was rude to the 911 dispatcher, and he refused to come out and speak

with the police. In rebuttal, the prosecutor again argued, based on the standard in the jury

instructions, that self-defense did not apply. He further argued that Mr. Combs refused to

come out of his house because he knew what he did to the technician was wrong and was

afraid of getting in trouble.

       The jury found Mr. Combs guilty of second degree assault with a deadly weapon.

He appeals.

                                       ANALYSIS

Sufficiency of the evidence

       Due process requires the State prove all elements of the crime beyond a reasonable

doubt. State v. Washington, 135 Wn. App. 42, 48, 143 P.3d 606 (2006). In a sufficiency



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No. 34092-9-III
State v. Combs


challenge, the inquiry 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). "[A ]11 reasonable inferences

from the evidence must be drawn in favor of the State and interpreted most strongly

against the defendant." Id.

       Mr. Combs was charged with second degree assault under RCW 9A.36.02l(l)(c),

assaulting another with a deadly weapon. "Assault" is defined in one of three ways: "(1)

an attempt, with unlawful force, to inflict bodily injury upon another; (2) an unlawful

touching with criminal intent; and (3) putting another in apprehension of harm whether or

not the actor actually intends to inflict or is incapable of inflicting that harm." State v.

Hupe, 50 Wn. App. 277,282, 748 P.2d 263 (1988). Mr. Combs focuses his argument on

the first definition. Under RCW 9A.16.020(3), a person's use of force is not unlawful

when used to stop a malicious trespasser and the force utilized is not more than necessary.

Further, when a defendant charged with assault alleges self-defense, the State is required

to disprove the claim of self-defense beyond a reasonable doubt because the claim of self-

defense negates the unlawful force element of the assault charge. State v. Acosta, 101

Wn.2d 612, 615-19, 683 P.2d 1069 (1984).




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     No. 34092-9-111
     State v. Combs


            Mr. Combs argues the State failed to prove the technician had lawful authority to

     be on his property, making him a trespasser. But a claim of self-defense is not that

     simple. The trespasser must be a malicious trespasser. RCW 9A.16.020(3) (emphasis

     added). Title 9A RCW defines "maliciously" as having "an evil intent, wish, or design to

     vex, annoy, or injure another person." RCW 9A.04.110(12). Viewing the evidence in a

l
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     light most favorable to the State, the jury could have easily found beyond a reasonable

     doubt the technician was not a malicious trespasser.

            Even excluding the technician's testimony that he could ignore Mr. Combs's no

     trespassing signs, the State presented sufficient evidence the technician was not a

     malicious trespasser. The technician arrived at the property wearing a high visibility vest

     in a marked Comcast and Prince Telecom truck. He knocked on the door to Mr. Combs's

     home and proceeded to disconnect the cable after receiving no answer. The technician

     testified he never threatened Mr. Combs and quickly identified himself as being with

I    Comcast multiple times. While Mr. Combs offered a different version of the events, this
i    competing testimony is not relevant for purposes of the present analysis. State v. Green,



I    94 Wn.2d 216,221, 616 P.2d 628 (1980) (sufficiency analysis does not involve

     reweighing evidence). The State presented sufficient evidence for the jury to find the

II   technician was not a malicious trespasser.

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No. 34092-9-111
State v. Combs


Prosecutorial misconduct

       Allegations of prosecutorial misconduct are reviewed for abuse of discretion.

State v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125 (2014). A defendant bears the

burden of showing the prosecutor's comments are both improper and prejudicial. Id.

Here, Mr. Combs cannot show the prosecutor's argument was improper.

      Mr. Combs's arguments are based on State v. Easter, 130 Wn.2d 228, 236, 922

P.2d 1285 (1996), and its progeny. As this court explained in State v. Magana, 197 Wn.

App. 189, 194-95, 389 P.3d 654 (2016), Easter and its progeny have been overruled by

Salinas v. Texas, 570 U.S. 178, 133 S. Ct. 2174, 2179-84, 186 L. Ed. 2d 376 (2013). The

prosecutor's argument concerned Mr. Combs's pre-arrest silence, and he never expressly

invoked his right to silence. The Fifth Amendment3 right to silence does not bar the

prosecutor's argument. Further, the prosecutor's arguments were used to rebut Mr.

Combs's claims that he did not want to speak with the police after hearing the police were

considering SWAT options and because he was rude to the 911 dispatcher. Mr. Combs's

defense made his refusal to come out and speak with the police a relevant topic for the

prosecutor to address. As the prosecutor's argument was not improper, there was no

misconduct.


      3
          U.S. CONST. art. V

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    No. 34092-9-111
    State v. Combs


                                        CONCLUSION

          The judgment and sentence is 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.


                                             Pennell, J.
    WE CONCUR:



       ~               ~r


    Fearing~'                                 Lawrence-Berrey, J.




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