IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OFWASHINGTON, 

### ) No. 76912-0-I 

### ) Respondent, 

### )

) DIVISION ONE v. RICKYARNTSEN, 

### ) UNPUBLISHED OPINION

Appellant. 

### ) FILED: January 6, 2020
MANN, A.C.J.

— RickyArntsen appeals his convictions for burglary in the first degree, assault in the second degree, burglary in the second degree, six counts of unlawful possession ofa firearm, six counts oftheft ofa firearm, and malicious mischief in the first degree, based on three incidents over a span oftwo days. Arntsen contends the trial court erred in failing to instructthejurythat the State had the burden to disprove Arntsen’s diminished capacity defense, and in granting the State’s motion tojoin and then denying his motion to severthe charges fortrial. Arntsen also contends thatthere
was insufficient evidence to support his convictions for unlawful possession ofafirearm and malicious mischief. Arntsen finally contends thatthe State committed prosecutorial misconduct during closing argument. We reverse Arntsen’s conviction for malicious mischief. We otherwise affirm.No. 76912-0-1/2

Arntsen was charged by amended information with 17 offenses arising out of three distinct incidents between December 1 and December2, 2014. Jackson Burglary Davonya Jackson lived in an Auburn apartmentwith hertwo young children. At around 7:00 am. on December 1, 2014, Jackson’s neighbor, Thomas Kelley, observed
an olderdark Jaguar enterthe apartment complex. Kelley saw a man exitthe carwith what he described to police as an assault rifle. Kelleytestified thatthe rifle “looked like
an AK-47 with a banana clip,” based on his prior military experience. Kelleywatched the man walkto Jackson’s apartment and kick in the front door. Kelley called 911. Jackson was getting her children readyfor school when a man, later identified as Arntsen, entered into her apartmentwith a rifle. Jackson described the man as a light skinned black man who was wearing “a lighttan colorjacket. He had something wrapped around his face, I don’t know, a scarforsomething around his face, darkjeans and some boots.” Arntsen pointed the rifle at Jackson and kept asking “where is that Samoan bitch and where is RickyWashington?” Jackson has a cousin named Dawn Jackson. Jackson was aware that a man named RickyWashington was the fatherof Dawn’s child. Jackson testified that she did not knowArntsen priorto the December 1 event. AfterJackson insisted there was nobody else there, Arntsen searched the apartment. He then forced Jackson into the parking lot at gunpoint, demanding that she show him “where they’re at.” Arntsen stated he was looking fora car, but Jackson

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did not knowwhat he was referring to. EventuallyArntsen walked away. Jackson then
ran backto the apartment and called 911. Aftergiving her initial statementto the police Jackson wentto herfamily’s house in Kent. Jackson contacted her cousin Dawn and confirmed herassociation with Ricky Washington. Jackson then put her cousin Dawn in touch with the police. Koenig Assault Shortlythereafter, also on December 1, Kim Koenig was driving when she was forced offthe road by a man driving an older, grayish Jaguar. Koenig testified thatthe
man had a kerchiefover his face, and he walked towards Koenig with a rifle. Koenig called 911. Koenig described the weapon as a hunting rifle, with “a regular metal barrel, butthe stock on itwas a wood grain. And itwas a fairwood grain, itwasn’t a dark, like black or anything like that.” Afterthe man returned to the Jaguar and drove away, Koenig followed the car long enough to read its license plate numberto the police dispatcher. The Jaguarwas registered toArntsen’s mother, Cynthia Arntsen. Koenig noted thatthe man had a “slightwall-eyed look about his eyes.” Robert Morrill, a passing motorist, observed the incident. He saw a man jump out ofan old, gray Jaguar. He sawthe man carrying what he thoughtwas an AK-47, which he identified from his own experience owning firearms. Morrill described the man
as wearing a tan jacket and sunglasses. Laterthat morning, police prepared and presented Jackson with a photo montage containing Arntsen’s picture. Jackson identified Arntsen from the photo montage.

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Big 5 Sporting Goods Burglary The next day, on December2, 2014, Arntsen drove a minivan through the front window and into a Big 5 Sporting Goods store. Arntsen then drove around inside the store. Arntsen, who was underthe influence of methamphetamine, believed he was running overthe people who were harassing him. Arntsen removed approximately 17 firearms from the display in the store, which were found in his van and on the floor. Ammunition thatfit an AK-47 rifle was found in Arntsen’s minivan at the Big 5. None of the 17 weapons removed byArntsen were AK-47s or used AK-47 ammunition. Big 5 did not sell AK-47 ammunition. Two police officers arrived on the scene and alerted the SWATteam. The SWAT team discovered Arntsen in the suspended ceiling and took him into custodyforcibly. As police removed Arntsen from the store, he was ‘saying things that didn’t make sense.” Arntsen was wearing a tan jacket and dark pants, like the clothing described by witnesses in the previous incidents. Photographsfrom the scene showed Arntsen in a “stressed-out state” and with “bugged out” eyes. After his arrest, police determined thatArntsen was notfitforjail and took him to Harborview Medical Center. He attempted to cut his restraints atthe hospital. Arntsen kept talking about RickyWashington. AfterArntsen’s arrest at Big 5, police e-mailed Jackson a photograph ofArntsen taken atthe scene ofthe arrest. Jackson recognized Arntsen as her assailant and she said she recognized the clothing Arntsen was wearing in the photograph.1

1 This identification was initially excluded by the court during pretrial motions in limine. The court later ruled thatArntsen had opened the door by questioning Jackson regarding the photograph. The court then permitted testimony about Jackson’s identification ofArntsen using the Big 5 photograph, but 4No. 76912-0-1/5
B.

Arntsen was charged with burglary in the first degree forthe Jackson incident, assault in the second degree and felony harassment in the Koenig incident, and burglary in the second degree, six counts of unlawful possession ofa firearm, six counts oftheft ofa firearm, and malicious mischief in the first degree, forthe Big 5 incident. At trial, Arntsen represented himself pro se. The court provided him with standby counsel afterthe trial began. Originally, the Jackson and Big 5 burglaries were filed separately. Priorto trial, the State amended the information, adding the Koenig assault to the Jackson burglary, and simultaneously moved to consolidate all three events fortrial. OverArntsen’s objection, the trial court granted the State’s motion tojoin all ofthe charges. During pretrial motions, Arntsen moved to again severthe charges. The trial court denied the motion to sever. Arntsen’s defense to the Jackson incidentwas denial, and that Jackson’s identification of him was tainted by her conversation with her cousin Dawn. Arntsen’s defense to the Koenig incident was that he was not identified. Arntsen’s defense to the Big 5 incidentwas based on diminished capacity. He had two mental health experts explain howthe mental health disorders, heavy drug use, and lack ofsleep diminished his capacity. One expert diagnosed Arntsen with bipolardisorderwith dependent and antisocial negativistic personalityfeatures. The second expert diagnosed him with paranoia, schizophrenia, anxiety, anti-social behaviordisorder, and poorjudgment and coping skills.

continued to exclude the photograph. AfterJackson acknowledged that she sawArntsen in the news, her in-court identification was also suppressed. 5No. 76912-0-1/6

Thejury acquitted Arntsen offelony harassment, but convicted him ofall the other charges.

Arntsen requested thejury be instructed that itwas the State’s burden to disprove his defense ofdiminished capacity beyond a reasonable doubt. The court declined the requested instruction, instead instructing thejurythat “[e]vidence of mental illness ordisorder may be taken into consideration in determining ifthe defendant had the capacityto form intent, knowledge, or malice.” Arntsen argues thatthejury instructions given bythe court did not correctly allocate the burden of proofto the government. We disagree. This court reviewsjury instructions de novo, within the context ofthejury instructions as a whole. State v. Slaughter, 143 Wn. App. 936, 941, 186 P.3d 1084 (2008). “Jury instructions aresufficient ifthey are supported by substantial evidence, allowthe parties to argue theirtheories ofthe case, and when read as a whole properly inform thejury ofthe applicable law.” Slaughter, 143 Wn. App. at 941. Errors in jury instructions that shiftthe burden of proofto a criminal defendant may implicate a defendant’s rightto due process, which makes them errors of constitutional magnitude. Slaughter, 143 Wn. App. at 941-42. Diminished capacity is a defense when an element ofthe crime charged is specific intent or knowledge. State v. Thomas, 123 Wn. App. 771, 779, 98 P.3d 1258 (2004). “If specific intent or knowledge is an element, evidence ofdiminished capacity
can then be considered in determining whetherthe defendant had the capacityto form the requisite mental state.” Thomas, 123 Wn. App. at 779. “Diminished capacity allows

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a defendantto undermine a specific element ofthe offense, a culpable mental state, by showing that a given mental disorder had a specific effect bywhich his abilityto entertain that mental state was diminished.” State v. Clark, 187 Wn.2d 641, 650, 389 P.3d 462 (2017). In State v. Marchi, 158 Wn. App. 823, 833, 243 P.3d 556 (2010), the defendant
was charged with attempted first degree murder and first degree assault ofa child after she gave her daughtera potent drug cocktail. The defendant argued that she did not have the requisite intentto committhe offenses due to diminished capacity. Marchi, 158 Wn. App. at 828. The trial court in Marchi gave the identical pattern instruction given in Arntsen’s case. Marchi, 158 Wn. App. at 834. Thejurywas instructed “thatthe State had the burden to prove each element ofthe charged crimes beyond a reasonable doubt.” Marchi, 158 Wn. App. at 834. The trial court did not instructthejury thatthe State had to disprove Marchi’s diminished capacity claim. kJ. 158 Wn. App. at 834. As in this case, the defendant argued on appeal thatthe instructions should have expressly required the State to disprove diminished capacity. k~. at 833. Division Two ofthis court rejected the defendant’s position, noting that “diminished capacity is [not] a complete defense but, rather, is evidence thejury may take into accountwhen determining whetherthe defendant could form the requisite mental state to committhe crime.” Marchi, 158 Wn. App. at 836. The court held: the trial court’s instructions clearly and unambiguously allocated to the State the burden of proving the crimes beyond a reasonable doubt. The jury instructions sufficiently informed thejurythatthe State had the burden of proving Marchi’s intent beyond a reasonable doubt. And the trial court instructed thejurythat it could consider her mental illness or disorder when deciding ifthe State proved that she acted with the requisite intent. We find no error in the trial court’s instruction. Marchi, 158 Wn. App. at 836. 7No. 76912-0-1/8

Arntsen argues that Marchi is no longer good law afterthe Supreme Court’s decision in State v. W.R., 181 Wn.2d 757, 336 P.3d 1134 (2014), and Division Two of this court’s decision in State v. Imokawa, 4 Wn. App. 2d 545, 422 P.3d 502 (2018). Imokawa, however, was more recently reversed. State v. Imokawa, 194 Wn.2d 391, 450 P.3d 159 (2019). NeitherW.R., nor Imokawa supportArntsen’s position. At issue in W.R. was whether, in a rape prosecution, the defendantwas required to prove the defense of consent by a preponderance ofthe evidence. W.R., 181 Wn.2d at 760. The Supreme Court held thatwhen consent necessarily negates an element of the crime, itviolates due process to place the burden of proofon the defendant. ki. at 766-67. The Court explained that ifa defense “necessarily negates an element ofthe crime, itviolates due process to place the burden of proofon the defendant.” ki. at 765. “The keyto whether a defense necessarily negates an element is whetherthe completed crime and the defense can coexist.” ki. at 765. When the defense necessarily negates the element ofa crime charged, the State cannot shiftthe burden of proof ofthe defense onto the defendant. Otherwise, the State would be relieved of its burden of proving every element ofthe crime beyond a reasonable doubt. j~. at 770-71. W.R. did not, however, require an instruction indicating thatthe State must disprove consent. Rather, it required the State to prove forcible compulsion. ki. at 766- 67. Indeed, the Court expressly stated that an instruction requiring the State to disprove consentwas not needed:

Because the focus is on forcible compulsion, jury instructions need only require the State to prove the elements ofthe crime. It is not necessaryto add a new instruction on consent simply because evidence of consent is produced.

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W.R., 181 Wn.2d at 774, n.3. Here, because the instructions did not require Arntsen to prove diminished capacity, but instead instructed thejurythatthe State had the burden to prove the elements ofthe crime, including intent, W.R. does not supportArntsen’s position. In Imokawa, the Supreme Court addressed whethera failure to instructthejury thatthe State had the burden of proving the absence ofa superseding intervening
cause violated due process. The State charged Imokawa with vehicular homicide and vehicular assault resulting from a collision. Imokawa claimed that actions taken bythe victim were an intervening superseding cause. The trial court denied Imokawa’s requestto include a specific instruction thatthe State must prove the absence ofan intervening cause. Imokawa argued that itviolated due process when thejury is not explicitly instructed thatthe State must prove absence ofa defense. Imokawa, 194 Wn.2d at401. The Court ofAppeals agreed that the State had the burden of proofand thatthejurywas not adequately instructed on that burden and reversed. The Supreme Court disagreed, and held: The trial court did not need to explicitly instruct thejurythatthe State has the burden to prove absence ofsuperseding intervening cause because, as instructed, proximate cause and presence ofa superseding intervening cause are mutually exclusive. This means proofof proximate cause beyond a reasonable doubt necessarily proves absence ofa superseding intervening cause. Imokawa, 194 Wn.2d at402. The Court concluded thatwhere “thejury is instructed as to the statutory elements ofa crime, that the State bears the burden of proving all elements beyond a reasonable doubt, and that the defendant has no burden of proof, the instructions as a whole are constitutionally adequate and do notviolate due process.” Imokawa, 194 Wn.2d at403-04. 9No. 76912-0-1110

Similarto Imokawa, the State did not have the burden to disprove Arntsen’s diminished capacity. Thejurywas instructed thatthe State had the burden to prove each ofthe elements ofthe crimes, including intent, beyond a reasonable doubt. The jurywas also instructed that it could considerArntsen’s mental illness or disorderwhen deciding ifthe State proved that he acted with the requisite intent. Thejury’s finding thatArntsen had the requisite intent demonstrates thatthejury did notfind the evidence ofdiminished capacity persuasive enough to showthat he lacked the requisite intent. The trial court did not err in declining to instructthejurythatthe State had the burden ofdisproving diminished capacity. Ill. Arntsen argues nextthatthe trial court abused its discretion when it granted the State’s motion tojoin the three incidents and laterdenied Arntsen’s pretrial motion to
sever. We disagree. A. Joinder is concerned with the propriety ofjoining separate offenses in a single charging document. CrR 4.3(a) permits thejoinderof multiple offenses when the various crimes ‘(1) {a]re ofthe same orsimilar character, even if not part ofa single scheme or plan,” or “(2) {a]re based on the same conduct or on a series of acts connected together orconstituting parts ofa single scheme or plan.” Thejoinder rule should “be construed expansivelyto promote the public policy of conserving judicial and prosecutorial resources.” State v. Bryant, 89 Wn. App. 857, 864, 950 P.2d 1004 (1998). Whether multiple offenses are properlyjoined is a question of law subject to de novo review. Bryant, 89 Wn. App. at 864. We determine the validity ofthejoinder based

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solely on the allegations in the charging information. “Ifjoinderwas not proper but offenses were consolidated in one trial, the convictions must be reversed unless the
error is harmless.” Bryant, 89 Wn. App. at 864. As the trial court explained in its order granting joinder: The incidents involved here took place over a period ofapproximately 24 hours. During two ofthe incidents, the defendant stated that he intended to kill “RickyWilliams.” He began by kicking in Ms. Jackson’s door and demanding to knowwhere he could find Mr. Williams. Avery shorttime later, defendant, wearing the same clothes and driving the same car, threatened anotherwoman with a rifle. The following day, the defendant drove a minivan into a sporting goods store in an attempt to steal several weapons. He once again stated that he planned to “kill Ricky Washington.” The incidents are all close in time and are part ofa series of acts that are closely connected. We agree. This evidence in the three crimes demonstrated a connection oftime, proximity, motive, and evidence. Because the State demonstrated a material connection between the offenses, joinderwas proper in this case. B. Wherejoinder is proper, the offenses shall be consolidated fortrial, “but the trial court may severthe offenses ifdoing so will promote a fair determination ofthe defendant’s guilt or innocence of each offense, considering any resulting prejudice to the defendant.” Bryant, 89 Wn. App. at 864; citing CrR 4.4. Atrial court’s failure to
sever counts is reversible only upon a showing that the court’s decision was a manifest abuse ofdiscretion. Statev. Bythrow, 114 Wn.2d 713, 717, 790 P.2d 154 (1990). To determine whetherto severa case, the court considers: “(1) the strength of the State’s evidence on each count; (2) the clarity ofdefenses as to each count; (3) court instructions to thejuryto consider each count separately; and (4) the admissibility of evidence ofthe other charges even if notjoined fortrial.” State v. Sutherby, 165
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Wn.2d 870, 884-85, 204 P.3d 916 (2009). We review onlythe facts known to the trial judge atthe time, ratherthan the events that develop laterat trial. State v. Bluford, 188 Wn.2d 298, 310, 393 P.3d 1219 (2017). Defendants seeking severance must demonstrate that a trial involving multiple counts would be so manifestly prejudicial as to outweigh the concern forjudicial economy. Bythrow, 114 Wn.2d at 718. We analyze each factor in turn. (1) The strength ofthe State’s evidence on each count Severance is properwhen one case is remarkably strongerthan the other. State
v. MacDonald, 122 Wn. App. 804, 815, 95 P.3d (2004). Here, the evidence supporting the Jackson burglary, Koenig assault, and Big 5 burglary is of roughly equal strength when considering the cross admissibility ofthe evidence. Arntsen conceded the Big 5 robbery; he contested onlythe intent element based on his claim ofdiminished capacity. The evidence ofthe Jackson burglarywas strong ifJackson’s identification ofArntsen
was credible. The Koenig assault occurred within an hourofthe Jackson burglary on a nearby roadwaywhile Arntsen was driving the same car identified at the Jackson burglary—a car registered to his mother. (2) The clarity ofdefenses as to each count Joinder prejudices a defendant ifthe defendant’s abilityto clearly present multiple defenses to ajury is disrupted. State v. Cotten, 75 Wn. App. 669, 687, 879 P.2d 971 (1994). “Prejudice may resultfromjoinder ifthe defendant is embarrassed in the presentation ofseparate defenses.” State v. Russell, 125 Wn.2d 24, 62, 882 P.2d 747 (1994). To demonstrate prejudice, the defenses must be “conflicting to the point of being irreconcilable and mutually exclusive.” State v. Medina, 112 Wn. App. 40, 53, 48

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P.3d 1005 (2002). Even the presence of mutually antagonistic defenses is not alone sufficientto compel separate trials. k~. The defendant must demonstrate thatthe conflict is so prejudicial that ajurywould unjustifiably inferthis conflict alone demonstrates guilt on all charges. j~ Arntsen asserted general denial as his defense to the Jackson burglary and Koenig assault, claiming thatthe events were eitherfabricated orthat he was misidentified. Arntsens defense to the Big 5 burglary was diminished capacity and necessity. These defenses do not reach the level of being irreconcilable. A reasonable juror could have concluded thatthe identification ofArntsen as the perpetrator ofthe Jackson burglary and Koenig assaultwas inadequate while also concluding thatthe evidence was sufficient to prove that he had committed the Big 5 burglary and that he had the capacityto form the requisite intentto committhat crime. Arntsen has thus not established prejudice in the presentation of his defenses. (3) Court instructions to the iurvto consider each count separately Jury instruction 19 instructed thejurythat each countwas separate and thejury must consider each crime separately. In Cotten, 75 Wn. App. at 688, this courtfound thatthis limiting instruction ameliorated any prejudice that may have resulted from joinder ofthe charges. (4) The admissibility ofevidence ofthe other charges Joinder is generally not prejudicial when evidence ofone crime is admissible to prove the elements ofanother. State v. Weddel, 29 Wn. App. 461 465, 629 P.2d 912 (1981). ER 404(b) provides:

Evidence ofother crimes, wrongs, or acts is not admissible to prove the characterofa person in orderto show action in conformitytherewith. 13No. 76912-0-1114

It may, however, be admissible for other purposes, such as proofof motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Evidence ofthe defendant’s bad acts may be admitted under ER 404(b) to show identity if: the evidence is logically relevantto the issue of identity, identity is a material issue before thejury, and the probative value ofthe evidence outweighs its potential for prejudice. State v. Hall, 40 Wn. App. 162, 165, 697 P.2d 597 (1985). Here, the evidence ofArntsen’s involvement in all three crimes was relevant and thus cross admissible to prove Arntsen’s identity. Identitywas Arntsen’s defense to the Jackson and Koenig incidents and the State demonstrated that the evidence linked Arntsen to these crimes. Washington was a critical link between the Jackson burglary and Big 5 Burglary, and helped establish Arntsen’s identity in the Jackson incident. Witnesses to the Jackson and Koenig incidents described the assailant as wearing the
same clothing thatArntsen was wearing when he was apprehended at the Big 5 store. Additionally, Koenig described her assailant’s “bugged-out eyes,” which matched Arntsen’s appearance at the Big 5 scene. Witnesses to the Jackson and Koenig incidents described the assailant’s car as a dark, olderJaguar. Koenig’s report ofthe license plate number confirmed that the Jaguar belonged toArntsen’s mother. Finally, witnesses to the Jackson and Koenig incidents described the assailant as carrying an AK-47 assault rifle. Cartridges thatfit AK-47 assault rifles were found in Arntsen’s minivan at Big 5. In summary, the critical evidence foressential elements ofthe crimes was dispersed through the three crimes, demonstrating that the three incidents were inextricably linked bythe evidence. Arntsen did not demonstrate that he was so

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manifestly prejudiced byjoinderthatthis prejudice outweighed the court’s concern for judicial economy. The trial court did not err byjoining the offenses and did not manifestly abuse its discretion when subsequently denying Arntsen’s motion for severance. 

### lv. Arntsen next argues thatthe State failed to prove that he committed the Jackson burglary and Koenig assaultwhile possessing a deadlyweapon. Arntsen argues that since the gun was neverdischarged or recovered, the gun-like object could have been a toy replica or a pellet gun. Arntsen relies on the testimony of his expertwitness who testified thatwithout more information, he could not distinguish between an actual rifle,
a pellet gun, or a toy. But the eye witness testimony established thatArntsen was armed with a real gun. The testfor determining the sufficiency ofthe evidence is whether, after viewing the evidence in the light mostfavorable to the State, any rational trier offact could have found guilt beyond a reasonable doubt. When the sufficiency ofthe evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor ofthe State and interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). The first degree burglary and second degree assault charges require thatthe State prove thatArntsen was armed with a deadlyweapon. The State must present sufficient proofthatthe person possessed an actual deadlyweapon, not a toy. State v. Tonqate, 93 Wn.2d 751, 755, 613 P.2d 121 (1980). The State is not required to prove thatthe firearm was operable at the time ofthe offense underformer RCW 9.41.010(9), which defines firearm. State v. Olsen, No. 51531-8-Il, slip op. at 7-8 (Wash. Ct. App. Oct. 8, 2019). The evidence is sufficient ifa witness to the crime testified to the 15No. 76912-0-1/16

presence ofa weapon. Tonqate, 93 Wn.2d at 754. “The evidence may be circumstantial; no weapon need be produced or introduced.” Tongate, 93 Wn.2d at 754. In Tasker, this court held that the State presented sufficient evidence thatthe defendant used a gun ‘in fact,” ratherthan a “gunlike but nondeadly object,” even though the firearm was never recovered. State v. Tasker, 193 Wn. App. 575, 595, 373 P.3d 310 (2016). This conviction was based on the victim’s description ofa “real gun” and the clicking noise she heard. Tasker, 193 Wn. App. at 595. While she forthrightly admitted to little experience with guns “in real life,” she was old enough, as the motherofa middle schooler, to have seen guns in photographs, on the news, in television programs and in movies. The clicking noise she described hearing behind her head was consistent with Mr. Tasker’s use ofa real gun. Collectively, the evidence was sufficientto establish the gun metthe definition ofa “firearm” under RCW 9.41 .010(9). Tasker, 193 Wn. App. at 595. This court confirmed that “eyewitness testimonythat described a gun as appearing real was sufficientto support ajuryfinding that an offenderwas armed with a firearm.” Tasker, 193 Wn. App. at 587-88. In Mathe, the State used witness testimonyto establish thatthe defendant had a deadlyweapon. State v. Mathe, 35 Wn. App. 572, 580, 668 P.2d 599 (1983). The weapons were never recovered. Mathe, 35 Wn. App. at 580. The courtfound that
a rational trier offact could have found beyond a reasonable doubtthat Mathe used a real and operable gun during the two robberies. While evidence ofthe deadlyweapon and firearm was circumstantial, “[un determining the sufficiency ofthe evidence, circumstantial evidence is not to be considered any less reliable than direct evidence. Mathe, 35 Wn. App. at 581-82.

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This case is analogous to Tasker and Mathe. Here, multiple witnesses testified that the suspectwas armed with an AK-47. Kelley identified the suspect as carrying an AK-47 nearJackson’s apartment. Kelleywas familiarwith AK-47s through his service in the Vietnam War. During the Koenig incident, Morrill witnessed the suspectwith an AK47. Morrill recognized the AK-47 as such through his own experience with guns. Finally, cartridges thatfitAK-47 rifles were found in Arntsen’s minivan at Big 5. None of the 17 firearms stolen from Big 5 used these cartridges, and Big 5 did not sell this type ofammunition. This evidence is sufficientto demonstrate that the gun was a gun “in fact.” Viewing the evidence in the light mostfavorable to the State, sufficient evidence supports thejury’s finding thatArntsen had a deadlyweapon. IV. To convictArntsen offirst degree malicious mischief, thejurywas required to find that he caused damage exceeding $5,000 to the Big 5 store. Arntsen contends thatthe State failed to establish thatthe damage caused to the Big 5 exceeded $5,000. We agree. Here, Erin Russo, the Big 5 managerwho testified aboutthe damage did not estimate the value ofthe damage to the store. The State presented no evidence ofthe monetaryvalue ofthe damage. Although photographs depict a serious amount of damage, the State provided no authoritythatwould have allowed thejuryto decide the damage value based on photographs alone. We agree with Arntsen there was insufficient evidence to demonstrate that the damage to the Big 5 store exceeded $5,000.

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V.

Arntsen next contends thatthe prosecutor committed misconduct during closing arguments preventing Arntsen from receiving a fairtrial. We disagree. Allegations of prosecutorial misconduct are reviewed under an abuse of discretion standard. State v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125 (2014). “When reviewing a claim that prosecutorial misconduct requires reversal, the court should reviewthe statements in the context ofthe entire case.” State v. Thorgerson, 172 Wn.2d 438, 443, 258 P.3d 43 (2011). The reviewing courtfirst considers whether the prosecutor’s comments were improper; and ifso, whetherthe improper comments caused prejudice. Lindsay, 180 Wn.2d at431. To show prejudice, the defendant must show a substantial likelihood thatthe prosecutor’s statements affected thejuryverdict. Lindsay, 180 Wn.2d at440. A. Arntsen first argues thatthe prosecutor committed misconduct by describing his arguments as being pulled out of“thin air” during rebuttal closing, thus denigrating his role as defense counsel. “[A] prosecutor must not impugn the role or integrity ofdefense counsel.” Lindsay, 180 Wn.2d at431-32. A prosecutor may, however, attackthe evidentiary basis, or lackthereof, for a defendant’s theory ofthe case. State v. Killngsworth, 166 Wn.App. 283, 291-92, 269 P.3d 1064 (2012); Lindsay, 180 Wn.2d at431. Because Arnsten failed to object or request a curative instruction, we reviewthe prosecutor’s comments to determine iftheywere “so flagrant and ill intentioned that an instruction could not have cured the resulting prejudice.” Lindsay, 180 Wn.2d at430.

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During closing rebuttal, the prosecutor argued: Ladies and gentleman, the defendant’s closing reminds me ofan old saying, and that it’s easyto pull things out ofthin air. Seriously. It’s easy to pull things out ofthin air. The prosecutor returned to this theme several times, using the word “thin air” three
more times. Arntsen analogizes these comments to Thorgerson, where the prosecutor used words ofdishonesty, like “bogus,” and ‘sleight of hand,” to disparage defense counsel and impugn defense counsel’s integrity. Thorgerson, 172 Wn.2d at451-52. When reviewing the prosecutor’s comments in the context ofthe closing argument, it is clearthatthe intent ofthe prosecutorwas to implore thejuryto rely on the evidence. For example, one ofthe prosecutor’s full statements was “the taskthat you have and the difficultythatyou have is sifting through all that stuffthatthe defendant so easily pulls out ofthe air, and looking at the evidence thatwas presented in the case and the facts that are in evidence before you.” Because the prosecutor’s statements were intended to demonstrate thatthe evidence did not supportArntsen’s argument, ratherthan to impugn Arntsen, these statements did not constitute misconduct. B. Arntsen next contends the prosecutor committed error by misstating the law on the crime of unlawful possession ofa firearm. A prosecutor’s arguments during closing argument must be confined to the law stated in the trial court’s instructions. State v. Walker, 164 Wn. App. 724, 736, 265 P.3d 191 (2011) (citing State v. Estill, 80 Wn.2d 196, 199, 492 P.2d 1037 (1972)). A prosecutor’s misstatement ofthe law creates a

19No. 76912-0-1120

substantial likelihood thatthe misstatement influenced thejuryverdict and denied the defendant a fairtrial. Walker, 164 Wn. App. at 736. Here, Arntsen argues thatthe prosecutor suggested that simple possession was sufficientto establish that he unlawfully possessed firearms in the Big 5 store. The prosecutor explained, ifyou pick something up and we can establish you intended to permanently—you intended to deprive another person of it, you picked it up, the theft is done. That’s it. You’ve committed the crime oftheft. You don’t have to like, Well, I’m going to walk outside, I’m going to do this today. Once you establish control overthat item, you have possessed it. The prosecutor’s statement does not contradictjury instruction 40, which defined possession ofa firearm as:

Possession means having a firearm in one’s custody or control. It may be eitheractual or constructive. Actual possession occurs when the weapon is in the actual physical custody ofthe person charged with possession. Constructive possession occurs when there is no actual physical possession butthere is dominion and control overthe item. In deciding whetherthe defendant had dominion and control over an item, you are to considerall the relevant circumstances in the case. Factors thatyou may consider, among others, include whetherthe defendant had the immediate abilityto take actual possession ofthe item and whetherthe defendant had the capacityto exclude others from possession ofthe item. No single one ofthese factors necessarily controls your decision. The prosecutor’s statement did not misstate the law and therefore did not constitute prosecutorial misconduct. C. Arntsen argued attrial that breaking into the Big 5 store to steal firearms was necessaryto protect himselffrom being victimized by RickyWashington, whom Arntsen allegedly believed intended to harm him. He contends on appeal thatthe prosecutor

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misled thejury by arguing thatthe burglarywas not necessary because Arntsen could have gone to ‘a gun show and [bought] a firearm or [got] one from his friends,”—both being reasonable, legal alternatives to breaking into Big 5. Arntsen argues thatthis statement was improper because the prosecutor knew he could not legally purchase a firearm because of a priorfelony conviction. We agree with Arnsten thatthe prosecutor’s commentwas not appropriate because buying the guns from a gun show orgetting a gun from friend was not a “reasonable legal alternative.” But even ifthe commentwas improper, Arnsten cannot demonstrate prejudice. Lindsay, 180 Wn.2d at431. In orderto demonstrate necessity, the defendant must prove that “(1) they reasonably believed the commission ofthe crime was necessaryto avoid or minimize a harm, (2) the harm soughtto be avoided was greaterthan the harm resulting from a violation ofthe law, (3) the threatened harm was not brought about bythe defendant, and (4) no reasonable legal alternative existed.” State v. Ward, 8 Wn. App. 2d 365, 372, 438 P.3d 588 (201 9). In orderto prove necessity as a defense to unlawful possession ofa firearm, the defendant must prove, among otherfactors, that they “reasonabley believed [they] or anotherwas under unlawful and present threat ofdeath
or serious physical injury.” State v. Parker, 127 Wn. App. 352, 354, 111 P.3d 1152 (2005). There was no such evidence presented to thejury. At best, Arntsen testified onlythat he was obtaining weapons to protect himself against a future harm that might
occurat some unknown time and place. Thus, while the prosecutor’s comment may have been improper, itwas not prejudicial and was not prosecutorial misconduct.

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VI.

Arntsen argues that cumulative error denied him a rightto a fairtrial. We disagree. ‘Cumulative error may call for reversal, even ifeach errorstanding alone would be considered harmless.” Thorgerson, 172 Wn.2d at454 (citing State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006)). The doctrine does not apply, however, “where the defendantfails to establish how claimed instances of prosecutorial misconduct affected the outcome ofthe trial or how combined claimed instances affected the outcome ofthe trial.” Thorgerson, 172 Wn.2d at454. Here, we are reversing the malicious mischief charge due to insufficient evidence. However, Arntsen has not demonstrated that he was denied a fairtrial. Arntsen has not established that thejury instructions warranted a reversal. Joinderwas proper in this case. The prosecutor did not conduct misconduct in closing arguments. Because Arntsen has not established errors in these instances, orestablished how these claimed instances affected trial, his argumentfor cumulative errorfails. VII. Arntsen raises additional issues in multiple lengthy statements ofadditional grounds (SAG). A defendant may submit SAG for review pursuantto RAP 10.10. However, “[an] appellate courtwill not consider a defendant/appellant’s statement of additional grounds for review if it does not inform the court ofthe nature and occurrence ofalleged errors.” RAP 10.10(c). Furthermore, we only consider arguments that are not repetitive of briefing. RAP 10.10(a). Finally, issues that involve facts orevidence not in the record are properly raised through a personal restraint petition, not a

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statement ofadditional grounds. State v. Alvarado, 164 Wn.2d 556, 569, 1 92 P.3d 345 (2008). We have considered all ofthe issues raised byArnsten, and address two in depth here.
A. Arntsen argues thatthere was insufficient evidence to prove the make, model, caliber, and specific features ofthe firearms forthe six counts oftheft ofa firearm, and the six unlawful possession ofa firearm counts from Big 5. We disagree. The testfor determining the sufficiency ofthe evidence is whether, after viewing the evidence in the light mostfavorable to the State, any rational trieroffact could have found guilt beyond a reasonable doubt. When the sufficiency ofthe evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor ofthe State and interpreted most strongly againstthe defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Arnsten contends thatthere was insufficient evidence to demonstrate that the weapons recovered were the weapons identified in each ofthejury instructions. Each ofthe instructions named the specificweapon Arntsen was charged with possessing. Forexample, instruction 34 was: “each ofthe following elements ofthe crime must be proved beyond a reasonable doubt: (1) That on or about December 2, 2014, the defendant knowingly had a firearm, a Savage .223 bolt action rifle, in his possession or control.” The State offered the testimony of Erin Russo, the manager of Big 5, to confirm thatthe weapons matched those found in Big 5 inventory records and matched the serial numbers ofweapons found in Arntsen’s van. Arnsten argues thatthe trial court

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erred in permitting Russo to read from the store’s inventory list. Arntsen’s argument fails fortwo reasons. First, Arntsen did not objectto any ofthis testimony. We may refuse to review any claimed errorthatwas not raised in the trial court. RAP 2.5(a); State v. Robinson, 171 Wn.2d 292, 304-05, 253 P.3d 84(2011) (issue preservation rules encourage ‘the efficient use ofjudicial resources

. . . by ensuring thatthe trial court has the opportunity to correct any errors, thereby avoiding unnecessary appeals”) (internal quotation omitted). Second, the prosecutor asked Russo if he was familiarwith the Big 5 inventory records and whetherthose records were maintained in the ordinary course ofthe store’s business. Russo confirmed that he was familiarwith these business records. Under RCW 5.45.020: A record ofan act, condition or event, shall in so far as relevant, be competent evidence ifthe custodian or other qualified witness testifies to its identity and the mode of its preparation, and if itwas made in the regular course of business, at or nearthe time ofthe act, condition or event, and if, in the opinion ofthe court, the sources of information, method and time of preparation were such as toJustify its admission. The information Russo provided thejurywas properly admitted as records of weapons in Big S’s inventory underthis statute. When viewing the evidence in the light mostfavorable to the State, based on Russo’s testimony, any rational trier offact could have found thatthe firearms identified in each ofthe firearm theft and possession jury instructions were the same firearms found in Arnsten’s vehicle and matching the Big 5 inventory. Salinas, 119 Wn.2d at 201.

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B.

Arntsen argues nextthatwhen a diminished capacity instruction is given, a voluntary intoxication instruction is not necessary, and the trial court erred by giving the voluntary intoxication instruction. We disagree. The authoritythatArntsen presented to the court is not in the record. Arntsen objected to the voluntary intoxication instruction afterthejury began deliberating. The court determined thatthis motion was untimely and properly denied. There was ample evidence presented aboutvoluntary including Arnsten’s testimonythat before he drove into the Big 5 he was “sitting here smoking—smoking meth. And then I would doze offa little bit, and then I wake up and I smoke some more meth, and I doze offa little bit.” The State requested the instruction forthejury so thatthejurywould be able to properly evaluate howvoluntary intoxication effects the defendant’s mental state. The trial court did not errwhen it included the voluntary intoxication instruction. We reverse the malicious mischief in the first degree conviction on the basis of insufficient evidence, we otherwise affirm.

WE CONCUR:

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