                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                            August 29, 2017

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                              No. 49184-2-II

                                Respondent,

         v.

    JOHN A. CHACON,                                             UNPUBLISHED OPINION

                                Appellant.

        MELNICK, J. — John Chacon appeals his convictions of assault in the second degree and

criminal trespass in the first degree. We conclude that the trial court did not err by declining to

give an inferior degree offense instruction, and that the prosecutor did not commit misconduct.

We do conclude that the trial court erred in instructing the jury on reasonable doubt, but the error

was harmless beyond a reasonable doubt.1 We affirm.

                                               FACTS

        On February 16, 2016, Chacon sat inside the Senior Center, an area in The Olympia Center

building reserved for members at least 55 years old and their guests. Chacon had used The

Olympia Center’s bathroom and shower on previous occasions.

        Seeing that Chacon was a young man, the director of the Senior Center informed him that

the Senior Center had age restrictions. Chacon stated, “I’ll do whatever I want.” 1 Report of

Proceedings (RP) at 92. The director asked Chacon to leave, but he refused. A security guard



1
 Chacon also requests that we waive appellate costs in this matter. Pursuant to RAP 14.2, we
defer this matter to our commissioner in the event that the State files a cost bill and Chacon objects.
49184-2-II


asked Chacon for his age. When Chacon stated that he was 35 years old, the security guard

informed him that according to the Senior Center policies posted at the entryway, Chacon did not

meet the qualifications. Chacon responded, “If you don’t get the f**k away from me I’m going to

take you outside and beat the f**k out of you.” 1 RP at 68.

       The director called the Olympia Police Department. When police officers arrived, an

Olympia Center employee prepared a formal trespass notice to be issued to Chacon. Chacon

walked out of the building. The police officers followed Chacon and asked him to sign the trespass

notice. He refused. They advised Chacon that he would be arrested for criminal trespass if he

went back inside The Olympia Center. Chacon responded, “I’ll see you tomorrow.” 2 RP at 253.

       The following day, an Olympia Center employee saw Chacon in the building. The

employee informed Chacon that he was not supposed to be in the building and that someone might

call the police. When Chacon ignored him, another employee called the police.

       Police officers arrived and saw Chacon sitting at a table in the Senior Center drinking

coffee. They informed Chacon that he was under arrest for trespass and placed him in handcuffs.

Two officers, including Officer Jeffrey Davis, escorted Chacon out of the Senior Center. At one

point, Chacon became uncooperative and dropped his weight to the floor. Because of his size, the

officers could not carry Chacon and were forced to drag him to the front door. Chacon eventually

stood and walked to the officers’ patrol car.

       At the patrol car, Chacon used his body to try to block the rear passenger door from

opening. He became more aggressive and uncooperative. The officers repeatedly asked Chacon

to move, but he said, “F**k you, I’m not moving.” 2 RP at 385. Davis tried to move Chacon by

pushing his shoulders, but Chacon resisted.




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49184-2-II


       To overcome Chacon’s resistance, Davis delivered a “knee strike”2 with his right knee to

a soft area of Chacon’s thigh. 2 RP at 386. The knee strike was ineffective. As Davis continued

to attempt to move Chacon, Chacon shifted his weight towards Davis and struck Davis with his

leg. He hit Davis in the interior edge of his right knee. Davis later testified, “[Chacon’s strike]

was similar to the first one I had given to him in a close tight proximity, within 12 to 18 inches of

movement.” 2 RP at 389.

       Davis felt “intense and immediate pain, helplessness” and a “sickening pop.” 2 RP at 389.

Davis’s knee cap moved from its normal position and his leg locked at a 90-degree angle. Davis

could not move his leg. He stood on his left leg and held onto the car door for stability. When the

other officers noticed Davis let go of Chacon, they took Chacon to the ground.

       At some point, Davis felt his knee pop back into place. Able to put a small amount of

pressure on his right leg, Davis immediately assisted the other officers. He secured Chacon’s legs

with his baton and left knee. Davis subsequently asked one of the officers to take his position at

Chacon’s legs, saying “I can’t do this anymore.” 2 RP at 268. Davis “looked a little white.” 2

RP at 269.

       Davis had a red and swollen knee. One officer observed that Davis was “not his normal

self” and “unsteady on his feet.” 2 RP at 345. A medical examination showed that Davis suffered

a dislocated kneecap. He was placed on light duty and underwent physical therapy. He was not

cleared for active duty for approximately 14 weeks.




2
 A “knee strike” is a “pain compliance” technique law enforcement officers use to temporarily
deaden the targeted muscle and incapacitate the person. 2 RP at 387.


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          None of the officers saw Chacon kick Davis. Chacon did not complain of any injuries.

The State charged Chacon with assault in the second degree and criminal trespass in the first

degree.

I.        JURY INSTRUCTIONS

          At trial, both parties submitted proposed jury instructions. Regarding the assault in the

second degree charge, Chacon requested an inferior degree offense instruction of assault in the

third or fourth degree. He argued that a jury could find that the injury to the officer did not amount

to substantial bodily harm, an element required to establish assault in the second degree but not

the inferior degrees.

          The trial court denied Chacon’s request, ruling that Chacon presented no evidence that

Davis suffered anything other than substantial bodily harm. The evidence established that Davis

suffered a dislocated kneecap which required him to be off-duty for 14 weeks.

          The court instructed the jury on burden of proof and reasonable doubt as follows:

                  The defendant has entered a plea of not guilty to the charges. That plea puts
          in issue every element of the crimes charged. The State is the plaintiff and has the
          burden of proving each element of each crime beyond a reasonable doubt.
                  A defendant is presumed innocent. This presumption continues throughout
          the entire trial unless during your deliberations you find it has been overcome by
          the evidence beyond a reasonable doubt.
                  A reasonable doubt is 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. If, after such consideration, you have an abiding belief in the
          truth of the charge, you are satisfied beyond a reasonable doubt.

Clerk’s Papers (CP) at 30-31 (Instr. 3). Chacon did not object to this instruction.3



3
 Chacon submitted proposed jury instructions, but the record does not include them. The State’s
proposed reasonable doubt instruction included the sentence, “The defendant has no burden of
proving that a reasonable doubt exists as to these elements.” Suppl. CP at 66 (Proposed Instr. 4).
The State argues that the trial court’s omission of the sentence was an oversight.


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49184-2-II


II.    CLOSING ARGUMENT

       During closing arguments, the prosecutor stated:

               And sometimes we'll hear from folks . . . I really believe he did it, but you
       didn't prove it to me. . . . If you believe he did it, then I did prove it to you because
       remember . . . you came in here as a blank slate. . . . The only information you got
       in this case came from the witness stand, came from the exhibits. The only way
       you can say to yourself when you walk out, I really believe he did it, is if you have
       been given that information and you have formed that belief based on that
       information. You don't get to that point if it hasn't been proved to you beyond a
       reasonable doubt. So please, hold the State to the burden of proof that you are
       instructed on and not a higher level or a greater level of proof.

3 RP at 514. The prosecutor continued in rebuttal:

               Folks, there is no question [Chacon] knew he was not supposed to be there
       [at the Senior Center]. And all of that other stuff with the ceramic coffee cup and
       the poor gal behind the counter who didn't tell him to leave, that is white noise,
       ladies and gentlemen. Listen, listen, listen, buzz, buzz, buzz, buzz. Don't pay
       attention to the facts and the legal instructions that you have been given.

3 RP at 576. The prosecutor concluded:

       [T]his idea that [Chacon] didn't know what was happening, all these things just sort
       of happen and he wasn't involved in them. It's like that commercial, right, with the
       old gals that are trying to do Facebook. . . . She's like look here, I put you on my
       wall, and there's one of the ladies that is sitting there going what? But . . . that's not
       how this works. . . . [A]nd she's like no, it is. . . . [S]he doesn't like what she's
       saying, she says, "I unfriend you," because that's her understanding of Facebook
       and that's how she wants it to be. And the entire picture or premise of it is like that's
       not how this works, that's not how any of this works. And that is the white noise
       that counsel has asked you to accept.
               Here is this version of events that has zero support in evidence, it didn't
       happen, and [Chacon’s] behavior should be excused because, you know, that's just
       the way it is. It should be that way. That's not how this works, that's not how any
       of this works.

3 RP at 581-82. Chacon did not object to the above closing arguments.

       After deliberations, the jury returned a guilty verdict on both charges. Chacon appeals.




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49184-2-II


                                            ANALYSIS

I.     INFERIOR DEGREE OFFENSE INSTRUCTION

       Chacon argues that the trial court violated his “unqualified right” to give an applicable

inferior degree offense jury instruction on assault in the third degree against a police officer. Br.

of Appellant at 7, 10. We disagree.

       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, 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) (affirming, over defendant's objection, a conviction based on a lesser degree

instruction proposed by the State).

       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) (quoting State

v. Foster, 91 Wn.2d 466, 472, 589 P.2d 789 (1979)).

       The third requirement is the factual component of the test. When determining whether the

evidence was sufficient to support an inferior degree offense instruction, we view the evidence in

the light most favorable to the party that requested the instruction. Fernandez–Medina, 141 Wn.2d

at 455–56. However, the evidence must affirmatively establish the defendant's theory of the case,

not merely allow the jury to disbelieve evidence of guilt. Fernandez–Medina, 141 Wn.2d at 456.




                                                 6
49184-2-II


          An inferior degree offense instruction must be given if the evidence would permit a jury to

rationally convict only on the inferior offense and acquit on the greater offense. Fernandez–

Medina, 141 Wn.2d at 456. As long as the defendant presents sufficient factual evidence to support

an inferior degree instruction, it does not matter that the instruction would be inconsistent with

other portions of the defendant's case. Fernandez–Medina, 141 Wn.2d 459-60. We review de

novo the trial court's decision to give an inferior degree offense instruction. Corey, 181 Wn. App.

at 276.

          Here, the parties do not seem to contest that the first two prongs of the inferior degree test

are satisfied. Therefore, this case turns on the factual component of the test.

          To convict on assault in the second degree, the State had to prove that Chacon assaulted

Davis by recklessly inflicting substantial bodily harm. RCW 9A.36.021(1)(a). “‘Substantial

bodily harm’ means bodily injury which involves a temporary but substantial disfigurement, or

which causes a temporary but substantial loss or impairment of the function of any bodily part or

organ, or which causes a fracture of any bodily part[.]” RCW 9A.04.110(4)(b). Chacon would be

guilty of assault in the third degree if he assaulted under circumstances not amounting to assault

in the first or second degree, and assaulted a law enforcement officer who was performing his or

her official duties at the time of the assault.4 RCW 9A.36.031(1)(g).

          Chacon argues that the jury could have concluded that he committed assault in the third

degree because the evidence established that Davis’s knee strike could have caused his knee

dislocation, that the distance between Davis and Chacon was limited, and that none of the officers

saw Chacon kick Davis.




4
    Chacon only argues the assault against a police officer prong of assault in the third degree.


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49184-2-II


       Chacon’s argument is based on speculation and a misinterpretation of the evidence. The

testimony from Davis’s physician was that it was possible to dislocate a kneecap if Davis hit

something with the corner of his kneecap rather than straight on. The physician also testified that

a person would immediately notice a dislocated kneecap. Davis testified that his knee strike

against Chacon was ineffective. But when Chacon struck Davis’s knee, the pain was immediate

and intense. His knee locked, he could not walk, and he held onto the patrol car door for stability.

       The jury heard no evidence that Davis’s knee strike to Chacon caused his dislocated knee.

Nor did the jury hear evidence that substantial bodily harm from a kick could only occur at a

specific distance between two persons. Although the jury heard testimony that a knee strike could

possibly dislocate a kneecap, that evidence alone is not enough to entitle Chacon to an inferior

degree offense instruction. See Fernandez–Medina, 141 Wn.2d at 456. The evidence may have

allowed the jury to disbelieve evidence of Chacon’s guilt, but it did not affirmatively establish

Chacon’s theory of the case. Fernandez–Medina, 141 Wn.2d at 456. Therefore, the trial court did

not err by denying Chacon’s request to instruct the jury on assault in the third degree.

II.    PROSECUTORIAL MISCONDUCT

       Chacon argues that the prosecutor committed misconduct during closing argument. We

conclude that although some of the prosecutor’s remarks were not proper, Chacon cannot show

any resulting prejudice.

       An appellant claiming prosecutorial misconduct must demonstrate that the prosecutor’s

conduct was both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653

(2012). To establish prejudice, the appellant must then show that the improper comments had a

substantial likelihood of affecting the verdict. Emery, 174 Wn.2d at 760.




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49184-2-II


       If the defendant failed to object to the allegedly improper comments at trial, the defendant

must also show that the comments were “so flagrant and ill intentioned that an instruction could

not have cured the resulting prejudice.” Emery, 174 Wn.2d at 760-61. The appellant must show

that no curative instruction would have eliminated the prejudicial effect, and the misconduct

resulted in prejudice that had a substantial likelihood of affecting the verdict. Emery, 174 Wn.2d

at 761. The focus of this inquiry rests more on whether the resulting prejudice could have been

cured, rather than the flagrant or ill-intentioned nature of the remarks. Emery, 174 Wn.2d at 762.

       A.      Burden of Proof

       Chacon first argues that the prosecutor improperly mischaracterized and minimized the

State’s burden of proof.

       The State bears the burden of proving its case beyond a reasonable doubt, and the defendant

bears no burden. Emery, 174 Wn.2d at 760. During closing argument, a prosecutor has wide

latitude to argue reasonable inferences from the evidence. State v. Thorgerson, 172 Wn.2d 438,

453, 258 P.3d 43 (2011). But a prosecutor's argument misstating, minimizing, or trivializing the

law regarding the burden of proof can be improper. State v. Johnson, 158 Wn. App. 677, 684-85,

243 P.3d 936 (2010). As are arguments that shift the burden of proof to the defense. Thorgerson,

172 Wn.2d at 453.

       During closing argument, the prosecutor stated that if the jury believed Chacon “did it,”

then she proved that Chacon committed the crimes. 3 RP at 514. The prosecutor then stated that

the only way the jury could believe Chacon committed the crimes is if it “ha[d] been given that

information” and “formed that belief based on that information.” 3 RP at 514. She continued,

“You don't get to that point if it hasn't been proved to you beyond a reasonable doubt,” and told




                                                9
49184-2-II


the jury to “hold the State to the burden of proof that you are instructed on[.]” 3 RP at 514. Chacon

did not object.

       Nothing in the prosecutor’s arguments suggests that she misstated or minimized the State’s

burden of proof. To the contrary, the prosecutor told the jury to hold the State to its burden of

proof as instructed by the court. Therefore, we conclude that the prosecutor did not make any

improper argument on this basis.

       B.         Disparagement

       Chacon next argues that the prosecutor committed misconduct by mischaracterizing5 and

disparaging his attorney’s defense theory rather than attacking it based on the evidence presented

at trial. He argues that the prosecutor improperly compared his attorney to “old gals” in a television

commercial who were satirized for their ineptitude with technology. Br. of Appellant at 15.

       “It is improper for the prosecutor to disparagingly comment on defense counsel's role or

impugn the defense lawyer's integrity.” Thorgerson, 172 Wn.2d at 451. Disparaging defense

counsel, however, is significantly different from disparaging defense counsel's argument. See

Thorgerson, 172 Wn.2d at 451-52. It is not error for a prosecutor to argue that the evidence does

not support the defendant’s theory. State v. Graham, 59 Wn. App. 418, 429, 798 P.2d 314 (1990).

       During rebuttal, the prosecutor stated, “Listen, listen, listen, buzz, buzz, buzz, buzz,”

arguing that Chacon’s attorney was distracting the jury with irrelevant facts and that he was telling

the jury to ignore the court’s instructions. 3 RP at 576. The prosecutor equated the defense theory

as “white noise.” 3 RP at 576. Chacon did not object.


5
  Chacon does not argue how the prosecutor’s comments mischaracterized his attorney’s defense
theory. He argues that the prosecutor “dismiss[ed] Mr. Chacon’s arguments as an attempt to divert
the jury’s attention from the real issues.” Br. of Appellant at 15. But these comments did not
mischaracterize the attorney’s defense theory. Chacon’s arguments focus on disparagement of his
attorney.


                                                 10
49184-2-II


       These remarks impugned Chacon’s attorney’s integrity because they implied that he

attempted to deceive the jury and steer it away from the court’s instructions. Although the

prosecutor’s remarks were inappropriate, Chacon has not shown that there was a substantial

likelihood that the remarks affected the jury’s verdict. Additionally, a curative instruction would

have eliminated any prejudicial effect.

       As to the prosecutor’s alleged comparison of Chacon’s attorney to “old gals” in a television

commercial, Chacon mischaracterizes the prosecutor’s argument. 3 RP at 581. During rebuttal,

the prosecutor compared Chacon’s argument—that “he didn’t know what was happening, all these

things just sort of happen and he wasn’t involved in them,”—to a woman in a television

commercial. 3 RP at 581. The woman in the commercial firmly believed that she understood how

to use Facebook, even though her understanding was completely wrong. 3 RP at 581.

       The prosecutor argued that even though Chacon said that “it didn’t happen, and his

behavior should be excused because . . . that’s just the way it is,” he should not be acquitted of the

charges because his version of events was unsupported by the evidence. 3 RP at 581. These

comments did not disparage Chacon’s attorney’s role or impugn his integrity.

       For the foregoing reasons, we disagree with Chacon’s arguments on prosecutorial

misconduct.

III.   REASONABLE DOUBT JURY INSTRUCTION

       Chacon argues that the trial court’s jury instruction defining reasonable doubt relieved the

State of its burden of proof and undermined Chacon’s presumption of innocence. We agree that




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49184-2-II


the trial court erred by giving a reasonable doubt jury instruction that did not use the exact language

of WPIC 4.01,6 but that the error was harmless.

       We review alleged errors of law in jury instructions de novo and consider them in the

context of the instructions as a whole. State v. Fehr, 185 Wn. App. 505, 514, 341 P.3d 363 (2015).

Trial courts have been directed to use only the reasonable doubt pattern instruction contained in

WPIC 4.01. State v. Bennett, 161 Wn.2d 303, 317-18, 165 P.3d 1241 (2007). Here, the trial court’s

jury instruction defining reasonable doubt used almost the exact verbiage of WPIC 4.01, but

omitted one sentence from it. The omitted sentence reads, “The defendant has no burden of

proving that a reasonable doubt exists.” WPIC 4.01. Chacon did not object.7

       Because the trial court did not instruct per Bennett, it committed error; however we

conclude that the error was harmless. Erroneous jury instructions are generally subject to a

constitutional harmless error analysis. State v. Brown, 147 Wn.2d 330, 332, 58 P.3d 889 (2002).

Error is harmless if we are satisfied beyond a reasonable doubt that the jury verdict would have

been the same absent the error. Brown, 147 Wn.2d at 341. Even misleading instructions do not

require reversal unless the complaining party can show prejudice. State v. Aguirre, 168 Wn.2d

350, 364, 229 P.3d 669 (2010).




6
  11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 4.01, at, 85
(3d ed. 2008) (WPIC).
7
  Even though Chacon did not object to the jury instruction, we review it. State v. O'Hara, 167
Wn.2d 91, 100-01, 217 P.3d 756 (2009) (jury instructions that fail to define the beyond a
reasonable doubt standard constitutes manifest constitutional error); RAP 2.5(a)(3).



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49184-2-II


       In deciding harmless error, we are aware that a split exists among the divisions of this court

as to whether a harmless error analysis can be utilized when a trial court gives an erroneous

reasonable doubt instruction Division I held that a failure to use WPIC 4.01 constituted reversible

error and declined to apply a harmless error analysis. State v. Castillo, 150 Wn. App. 466, 472-

75, 208 P.3d 1201 (2009). But Division II declined to follow Castillo. It reasoned that Bennett

did not hold that an instruction that modified WPIC 4.01 automatically constituted reversible error.

State v. Lundy, 162 Wn. App. 865, 872, 256 P.3d 466 (2011). Lundy held that the failure to use

WPIC 4.01 is not structural error, and that it should be subject to a constitutional harmless error

analysis. Lundy, 162 Wn. App. at 872. We adhere to our ruling in Lundy.

       Here, the trial court’s instruction accurately described the State’s burden of proof by clearly

stating that the State must prove each element of the crimes charged beyond a reasonable doubt.

It also instructed that the “defendant is presumed innocent,” and that the “presumption continues

throughout the entire trial unless . . . you find it has been overcome by the evidence beyond a

reasonable doubt.” CP at 31 (Instr. 3). Chacon has not shown prejudice and we do not find

prejudice. Therefore, we conclude that although the jury instruction was erroneous, the error is

harmless beyond a reasonable doubt.




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49184-2-II


       We affirm.

       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.




                                                         Melnick, J.


We concur:




       Bjorgen, C.J.




       Sutton, J.




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