### INTHECOURTOFAPPEALSOF THESTATE OFWASHINGTON c=> -iS STATE OFWASHINGTON, Respondent,

v. RONALD LEE GRAY III, Appellant. NO. 68814-6-1 DIVISION ONE

UNPUBLISHED OPINION
FILED: December23, 2013 rn

Leach, C.J.

— Ronald Gray III appeals his conviction for attempted murder inthe first degree while armed with a deadly weapon. He claims thatthe trial court violated his constitutional right to present a defense when itexcluded evidence of the complaining witness's criminal history. Gray also alleges a 

### Brady1 violation, fabrication of evidence, prosecutorial misconduct, erroneous exclusion of evidence, newly discovered evidence, ineffective assistance of counsel, and an unfair trial. Because the court properly excluded Gray's 

### proffered witness's criminal history as propensity evidence barred by ER 404(b) and wefind no meritinGray's remaining arguments, we affirm the conviction.



### 1Brady v.Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L Ed. 2d 215 (1963). CO CT.31.-,-., cm"n'";;i

.' —iC.'NO. 68814-6-1/2

FACTS 

### On August 7, 2011, around 10:30 p.m., Gray and two friends tried to pick 

### fights with others outside of a convenience store. After leaving the store, they walked down the street and attempted to start a fight withthree teenagers. One ofthe teenagers, Jordan Kirk, went into his house and told his father, Matthew 

### Kirk, aboutthe harassment. Matthew Kirktold Gray and his friends to stay away and threatened to shootthem ifthey stepped into his yard. Gray and his friends yelled and grabbed their waists as ifthey had guns. Jordan called the police, 

### and Gray and his friends left and continued to walk down the street. Gray, who
was wearing blue shorts and a white T-shirt, continued yelling as he walked down the street. Numerous residents in the area called 911. 

### The group approached Leroy Travers and Coral Williams, who were unloading theircarafterreturning from a rafting trip, and yelled, "I am a Crip" and 

### "fuck you, nigger." Travers told them to leave. They called Williams names and made comments about shooting Travers and Williams. Travers told them that he 

### did not believe they had a gun. He approached Gray, who punched him inthe face. Travers punched Gray, threw Gray to the ground, and kicked him with his bare foot. Before turning to walk away, Travers also shoved one of Gray's friends and told him to stay back.

-2-NO. 68814-6-1/3

After Gray got up, he reached into his pants and threatened Travers, 

### saying, "That's okay, Iknow where you live" and tellingTravers thathe would "kill your whore." Travers, who had no weapons, ran back toward Gray. The men engaged, and Gray stabbed Travers fourtimes. 

### The State charged Gray byamended information withattempted murderin 

### the firstdegree and assaultin the firstdegreewhilearmedwith a deadlyweapon. 

### Grayrequested a pretrial ruling on the admissibility ofTravers's criminal history to support his self-defense claim. The court excluded this evidence under ER 404(b). 

### A jury convicted Gray as charged and also returned a special verdict that 

### he was armed with a deadly weapon. The court imposed a standard range 

### sentence.2 Grayappeals.3 ANALYSIS Witness's Criminal History Evidence Grayfirst claims, "[T]he essential question here is whethera traditional ER 

### 404(b) applies when evidence is offered by a defendant in support of his defense, or whether a straightforward relevancy/prejudice inquiry applies." He 

### 2Thejury convicted Gray ofattempted murder in the first degree and assault inthe first degree while armed with a deadly weapon. The courtvacated the assault conviction on the basis that conviction for both counts would violate 

### doublejeopardyprinciples. We include otherrelevantfacts inthe discussion below as necessary. -3-NO. 68814-6-1/4 

### alleges that the trial court "denied his constitutional right to present a defense" when it excluded evidence of Travers's criminal history under ER 404(b). He 

### contends, "Travers' prior aggressive contacts tended to make itmore probable 

### that he, not Gray, was the aggressor and that he was someone to be feared." Gray argues that this propensity evidence would support his assertion that he acted in self-defense when he stabbed Travers. 

### The parties disputethe standardfor our review ofthe court's application of ER404(b). Graycontendsthatwe should conducta de novo review becausethe 

### trialcourt's rulingdenied his constitutional right to present a defense. The State counters that we should review for an abuse of discretion because the proper 

### application of the rules of evidence involves the trial court's exercise of discretion. We need not resolve this question because the court properly excluded the evidence under either standard ofreview. 

### We recently considered and rejected Gray's constitutional and ER 404(b) 

### interpretation claims in State v. Donald.4 We held that ER 404(b) requires exclusion ofevidence ofany person's othercrimes, wrongs, or acts to showthat 

### he actedconsistentwith his character on a particular occasion.5 We alsoheld

4No. 68429-9-1 (Wash.Ct. App. Dec. 9, 2013). 5Donald, slip op. at 7.NO. 68814-6-1/5

thatthis requirement does notviolate an accused's constitutional right to present
a defense.6 ER 404(a)(2) allows the admission of evidence of "a pertinent trait of characterofthe victim offered by an accused." Gray makes no argumentthatthe trial court should have admitted Travers's criminal history under this rule. The 

### criminal history proffered to the trial court would not support such an argument. The trial court did not err when it excluded the proffered evidence of Travers's criminal history. Brady Violation In a statement of additional grounds, Gray alleges that the prosecutor improperly withheld evidence. Gray asserts that he requested video surveillance from the convenience store and that "[i]n the E-mail to Mr. Gray[']s trial counsel 

### the prosecutor stated 'there[']s no outside video of the mart' indicating he rendered the surviellance [sic] material worthless." Gray claims, "[l]t was mentioned in the police report that a copy was to be at the police headquarters putting it inthe prosecutor[']s constructive possession." Gray argues, "The video if produced would have shown Mr. Gray was not acting aggressive toward anyone at the mart, rebutting the prosecutor[']s giving of the first aggressor instruction." 

### 6Donald, slipop. at 1. -5-NO. 68814-6-1/6

In Brady v. Maryland, the Supreme Court held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, 

### irrespective of the good faith or bad faith of the prosecution."7 Evidence is material only ifthere is a reasonable probability that had prosecution disclosed 

### the evidence to the defense, the proceeding would have had a different result.8 The record does not contain the referenced police report or e-mail or any evidence of a surveillance video from the convenience store. Additionally, nothing in the record indicates that Gray interacted with Travers at or near the 

### store. Because Gray fails to show a reasonable probability that disclosing this evidence, if it exists, would have led to a different result, he fails to show a violation ofthe Brady rule. Fabrication ofEvidence Gray further alleges, "The prosecutor also fabricated evidence by stating the defendant had the folding knife at the ready as he taunted 'the victim' in an attemptto get him to re-engage." "Inthe criminal law context, the deprivation of



### 7Bradv, 373 U.S. at87. 

### 8 State v. Thomas. 150 Wn.2d 821, 850, 83 P.3d 970 (2004) (quoting United States v. Baqlev. 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985): In re Pers. Restraintof Benn. 134Wn.2d 868, 916, 952 P.2d 116(1998)). -6-NO. 68814-6-1/7 liberty based on fabricated evidence is a violation of a person's constitutional 

### rightto dueprocess."9 To support his assertions, Gray cites testimony from witnesses Coral 

### Williams and Ryan Leverenz, who said that they observed no weapons. Gray does not dispute that he was involved in an altercation with Travers or that 

### Travers was stabbed. Witness Leo Mattox testified that Gray screamed to 

### Travers that he was going to "kill his whore." Although Gray claims that he had
no weapon, Mattox testified, "I seen a knife come out and what appeared to be 

### punching or stabbing, at that point, I couldn't clearly define it that night, you know, until later." Mattox also told the courtthat he saw Gray throw something 

### thathit a neighbor's shed as Gray ran awayfrom the scene10 and thatMattox found a knife near the shed the next day. A forensic scientist from the Washington State Patrol Crime Laboratory testified that although she could not clearly determine a single person's DNA (deoxyribonucleic acid) profile on the knife handle, the knife's blade contained Travers's blood. Because evidence 

### elicited at trial supports the prosecutor's argument, we reject Gray's fabrication claim.



### 9Jones v. State, 170Wn.2d 338, 350, 242 P.3d 825(2010). 10The court admitted the knife into evidence.NO. 68814-6-1/8

Prosecutorial Misconduct Gray also alleges prosecutorial misconduct. He claims thatthe prosecutor 

### improperly expressed his personal opinions to the jury. Additionally, Gray contends that during the State's closing argument, the prosecutor violated the pretrial orderprecluding the use ofthe word "victim." To succeed on a claim of prosecutorial misconduct made for the first time
on appeal, an appellant must establish that the prosecutor's behavior was "so 

### flagrant and ill intentioned that an instruction could not have cured the resulting 

### prejudice."11 Toprove prosecutorial misconduct, an appellant must showboth improper conduct and resulting prejudice.12 Conduct is notflagrant and illintentioned where a curative instruction could havecured anyerror.13 "Butthe cumulative effect of repetitive prejudicial prosecutorial misconduct may be so flagrant that no instruction or series of instructions can erase their combined 

### prejudicial effect."14 "Mere appeals to a jury's passion and prejudice are inappropriate."15 Prejudice exists where there is a substantial likelihood that the 

### misconduct affected the verdict.16 Theprosecutor has wide latitude in closing

11 State v. Emery, 174Wn.2d 741, 760-61, 278 P.3d 653 (2012). 

### 12Statev. Fisher, 165Wn.2d727,747, 202 P.3d 937(2009). 13 State v. Walker, 164Wn. App. 724, 737, 265 P.3d 191 (2011), review denied, 177Wn.2d 1026 (2013). 

### 14Walker, 164Wn. App. at 737. 15State v. Smith, 144Wn.2d 665, 679, 30 P.3d 1245, 39 P.3d 294(2001). 16Statev. McKenzie, 157Wn.2d44, 52, 134P.3d221 (2006). -8-NO. 68814-6-1/9
argument to draw reasonable inferences from the evidence and to express such 

### inferences to thejury.17 We review a prosecutor's comments during closing argument in the context of the total argument, the issues in the case, the 

### evidence, and thejuryinstructions.18 During the State's closing argument, the prosecutorcommented, "He turns him and pushes against him onto the ground, and luckily that's when the officer arrived, because Iam pretty sure Leroy Travers would not be here today ifthat 

### officer had not arrived." He also remarked, while referring to Gray, "[Pjrobably embarrassed him infront of his friends that he got knocked down, and he's going 

### to finish the job. So first aggressor. That alone eliminates self—self-defense." Even if the prosecutor's statements were improper, Gray fails to show a substantial likelihood that they affected the verdict. Viewed inthe context ofthe total argument, the prosecutor recited the law directly from the jury instructions and noted that the State bears the burden of proof. The State also presented a strong case. Mattox testified that Gray attempted to pick fights and was yelling
as he walked down the street. He also testified that Travers ran at Gray after 

### Gray threatened Travers and Williams, the two men "grabbed each other equally," and then Gray stabbed Travers. Ryan Leverenz, another witness, 

### 17State v. Magers, 164Wn.2d 174, 192, 189 P.3d 126(2008) (citing State v. Stenson, 132Wn.2d 668, 727, 940 P.2d 1239 (1997)). 

### Ornery, 174Wn.2d at 764n.14. -9-NO. 68814-6-1/10

testified that he heard Gray yelling threats to "shoot a house up" and threats to 

### Travers's girl friend beforethe men engaged and Gray stabbed Travers. Travers testified that Gray threatened to shoot him and his girl friend and that Gray punched Travers. Travers also testified that after he punched Gray, threw him
on the ground, and kicked him, Gray got up and continued to threaten Travers, 

### Travers ran at Gray, and then Gray stabbed Travers. The contrary evidence primarily concerned the witnesses' credibility. Because Grayfails to demonstrate prejudice, we reject his argument. Gray also fails to show that he was prejudiced from the prosecutor's use ofthe word "victim"approximately seven times during closing, despite the court's pretrial ordergranting Gray's motion in limine to preclude the Statefrom referring 

### toTravers as "the victim."19 Even ifthis conductwas improper, Gray does not show a substantial likelihood that these comments affected the verdict. Exclusion ofEvidence Gray also claims that the court erred when it excluded an out-of-court statement that Travers purportedly made to Mattox. The stabbing occurred on August 7. On October 3, Travers allegedly told Mattox, while referring to Gray, "Yeah, I probably would have done the same thing if I'd been in his circumstances."
19The record does notcontain this motion in limine. -10-NO. 68814-6-1/11 

### Gray contends thatTravers's statement was nothearsay.20 In ruling that Mattoxcould nottestifyto Travers's statement, the courtreasoned, This conversation which took place about 30 days after, and within which the individuals are sharing opinions about what could have and should have happened and—and afterthey've reflected on this and so forth and so on is not relevant to this case, in my opinion. And to the degree that it is, Evidence Rule 403 would keep it out because ofthe danger ofconfusion ofthe issues and so forth, and misleading thejury. The jury's job is to determine what happened there on the scene. The jury's job is not to determine what post—in a postreflective state the parties thought was going to go—what the parties thought should have happened. And it is, Ithink, absolutely inappropriate for the record to reflect this information inasmuch as thejury's job is to determine whether or not the situation was one which required—which called for the action that brings Mr. Gray to the scene right now—brings him to the attention ofthe Court. So what two fellows, two friends are talking about later, 30 days later about this is not considered appropriate under 403 or 

### under401 .[21] We agree with the trial court. Even ifwe were to conclude that evidence ofthis statementis not hearsay, Grayfails to show how this statementis relevantorthat the danger of misleading the jury when asked to consider Gray's and Travers's conduct at the time ofthe incidentwould not substantially outweigh its probative 

### 20 "'Hearsay' is a statement, other than one madeby thedeclarantwhile testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." ER 801. Gray alleges that the prosecutor committed 

### misconduct by objecting to this evidence. The State's objection cannotform the basis of a prosecutorial misconduct claim. Although the State objected to the statement's admission on the basis that itwas hearsay and irrelevant, the court addressed onlythe relevancy objection. 

### 21 The courtappears to have erred in stating "30 days." The transcript indicates thatthe conversation tookplace almosttwo months afterthe stabbing. -11-NO. 68814-6-1/12 

### value. Thus, the trial court did not abuse its discretion in excluding evidence of this conversation. Newly Discovered Evidence 

### Gray also alleges that he "had a friend with him by the name of Tony Goodnow, who was a witness to Mr. Gray[']s self defense act. He was 

### interviewed after the trial byMr. Gray[']ssentencing counsel LisaMulligan." Gray argues, "His statement would shed new light on the first aggressor issue, so it could change the result ofthe verdict." Because reviewing this claim on direct appeal would require us to considermatters outsidethe trial record, we decline to 

### address it.22 Ineffective Assistance ofCounsel Gray also claims that his trial counsel, Kris Jensen, was ineffective because he "failed to conducta pre-trial interview" with witness Matthew Kirk and 

### because he did not call James Star to testify. Gray asserts, "Matt is the only witness who says Mr. Gray was aggressive prior to the incident, though he says there was [sic] two people wearing white t-shirts, one was aggressive, Iwas the only one in a white[]t-shirt." 

### 22 See Statev. McFarland, 127 Wn.2d 322, 335, 899P.2d 1251 (1995) ("Where
... the claim is brought on direct appeal, the reviewing court will not consider matters outside the trial record." (citing State v. Crane, 116 Wn.2d 315, 335, 804 P.2d 10 (1991); State v. Blight, 89 Wn.2d 38, 45-46, 569 P.2d 1129 (1977))). -12-NO. 68814-6-1/13


### Wereview ineffective assistance of counselclaims de novo.23 Toprevail, 

### a defendant must show both deficient performance and resulting prejudice.24 Counsel's performance is deficient if it fell below an objective standard of 

### reasonableness.25 Our scrutiny of defense counsel's performance is highly deferential, and weemployastrong presumption ofreasonableness.26 "Torebut this presumption, the defendant bears the burden ofestablishing the absence of 

### any 'conceivable legitimate tactic explaining counsel's performance.'"27 To establish prejudice, a defendant must show a reasonable probability that the trial's outcome would have been different absent counsel's deficient 

### performance.28 Failure on either prong of the test defeats an ineffective assistance of counsel claim.29 "The decision whether to call a witness is ordinarily a matter of legitimate trial tactics and will not support a claim of ineffective assistanceofcounsel.'"30


### 23 In rePers. Restraint ofBrett, 142Wn.2d 868, 873, 16 P.3d601 (2001). 24 Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 

### 25 Stenson. 132 Wn.2d at 705. 

### 26Strickland, 466 U.S. at 689; McFarland, 127 Wn.2d at 335-36. 

### 27 State v. Grier, 171 Wn.2d 17, 42, 246 P.3d 1260 (2011) (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)). 

### 28 State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987) (quoting Strickland, 466 U.S. at694). 

### Strickland, 466 U.S. at 697. 30 State v. Statler, 160Wn. App. 622, 636, 248 P.3d 165 (quoting State v. Kolesnik, 146 Wn. App. 790, 812, 192 P.3d 937 (2008)), review denied, 172 Wn.2d 1002(2011). -13-NO. 68814-6-1 /14

The record shows that although Jensen did not conduct a pretrial interview with Kirk, Jensen effectively cross-examined Kirk at trial. Gray does not show thatJensen's failure to interview Kirkbeforetrial prejudiced him. Jensen's choice notto call Staras a witness was a legitimatetrial strategy. 

### Gray also claims that he received ineffective assistance of counsel because his attorney "failed to request an additional jury instruction explaining 

### thatwithdrawing from the altercation revives the right to self-defense." Counsel's failure to propose a legally adequate jury instruction can constitute ineffective 

### assistance.31 Sufficientjury instructions permiteach partyto argue its theory of 

### the case andproperlyinformthejuryoftheapplicablelaw.32 An initial aggressor who provoked the altercation cannot successfully invoke the right to self-defense to justify or excuse causing bodily harm to the other person engaged inthe conflict "unless he ingood faith had first withdrawn from the combat at such a time and in such a manneras to have clearlyapprised 

### his adversary that he in good faith was desisting, or intended to desist, from 

### further aggressive action."33 Here, Gray argues that he withdrew "when he abandoned the fist-fight [sic] and physically retreated 120 feet away from


### 31 Statev. Cienfueqos, 144 Wn.2d 222, 228-29, 25 P.3d 1011 (2001). 

### 32 State v. Rilev, 137 Wn.2d 904, 909, 976 P.2d 624 (1999)(quoting State v. Bowerman, 115Wn.2d 794, 809, 802 P.2d 116 (1990)). 

### 33 State v. Craig, 82 Wn.2d 777, 783-84, 514 P.2d 151 (1973) (citing State v. Wilson, 26 Wn.2d 468, 174 P.2d 553 (1946)). -14-NO. 68814-6-1/15



### Travers." The trial court gave Gray's requested self-defensejury instruction, as well as the State's requested first aggressorinstruction. 

### Witnesses testified that Gray and Travers separated physically after the fistfight. But Williams testified that as Gray walked away, he reached into his pants, "acting like he had something," and made verbal threats to Williams and Travers. Mattox testified that Gray "made a motion that he was pulling a gun out 

### from behind his back" as the men were separating, that "astheywere separating, the volumes were getting louder," that Gray made "a statement about killing [Travers's] whore," and that Gray was "being more aggressive as [Travers] was being coached awayfrom the situation." Although Gray's theory ofthe case was self-defense, Gray's actions did not communicate clearly to Travers his intention to withdraw from further conflict. Thus, under the circumstances here, defense counsel's performance did not fall below an objective standard of reasonableness and did not prejudice Gray's trial. Fair Trial Gray also claims, While the jury was present, the honorable judge called Mr. Gray up for a sidebar, as Mr. Gray rose up the correctional officer stood up and yelled "whatare you doing, sit down." This led thejury to seethat Mr. Graywas incustodywhich is a violation ofhis rights, and serves also as a basis for [a] newtrial.

•15-NO. 68814-6-1/16 

### "Every criminal defendant is entitled to a fair trial by an impartial jury."34 The presumption ofinnocence is a basiccomponentof afairtrial.35 Togiveeffectto this presumption, the court has a duty to be "alert to any factor that could 

### 'underminethe fairness ofthefact-finding process.'"36 The record contains no indication that the jury was aware of Gray's 

### custodial status at thetime oftrial.37 Although the record does notcontain the statement that Gray cites, this incidentwould demonstrate merely that the court officerwas maintaining orderinthe courtroom. Therefore, we rejectthis claim. CONCLUSION ER 404(b) requires excluding evidence of any person's other crimes, 

### wrongs, or acts to show that he acted consistent with his character on a particularoccasion. Gray fails to show thatthe State withheld material evidence
or fabricated evidence. He alsofails to establish thatthe prosecutor's statements


### 34 Statev. Gonzalez. 129Wn. App. 895,900, 120 P.3d 645(2005) (citing U.S. Const, amends. VI, XIV § 1;Wash. Const, art. I, §§ 3, 21, 22). 

### 35 Gonzalez, 129Wn. App. at 900(citing Estellev. Williams, 425U.S. 501, 503, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976); State v. Crediford, 130Wn.2d 747, 759, 927 P.2d 1129 (1996)). 

### 36Gonzalez, 129Wn. App. at 900(quotingWilliams, 425 U.S. at 503). 37 The trial transcript indicates that Gray was concerned that the jurors saw himwearing a jailbracelet. The prosecutor stated, "The Defendant, as your Honor well knows, was wearing a fairly longsleeved jacket with a regular suit. 

### And that bracelet would probably not even be visible from clear across the 

### courtroom to the jurors. And even if they did see that bracelet, it would look something like a small medical bracelet." Defense counsel did not question the jurors abouttheirability to seethe bracelet. -16-NO. 68814-6-1/17 during closing were prejudicial. The court properly excluded Travers's out-of

### court statement. We do not consider ifTony Goodnow's testimony is newly discovered evidence. Gray fails to show that defense counsel's conduct was improperor prejudicial, and no evidence shows thatthejury was aware ofGray's custodial status at the time of trial. For these reasons, we affirm Gray's conviction.

WE CONCUR: 

# f/.s /rv^. ~7

# ^L

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