### FILED 

### SEPTEMBER30,2014 In the Office ofthe ClerkofCourt W AStateCourtofAppeals, Division III

INTHECOURT OF APPEALS OF THESTATEOF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 30640-2-III Respondent, ) (consolidatedwith ) No. 3064I-I-III) 

### v. ) ) GARYDALEENGELSTAD, JR, ) JOSEPHLEE SHOUSE, ) UNPUBLISHED OPINION ) Appellants. ) FEARING, J. - Ajuryfound Joseph Shouse and GaryEngelstadguilty oftwo counts ofrobbery inthe fIrst degree, three counts ofassaultinthe seconddegree, burglaryinthefIrst degree, and unlawful possessionofa fIreann inthe fIrst degree. Both defendants raisenumerous issues onappeal: Whethersufficientevidence supports their convictions? Whetherprosecutors engagedinmisconduct? Whether seconddegree assaultmerges with fIrst degreerobbery? Whetherdismissal ofcounts eight and nine, theftinthe second degree, negates anessential elementofthe fIrst degreerobbery offenses? 

### In addition, Shouse andEngelstad ftled statements ofadditional grounds, arguing ineffective assistance ofcounsel, cumulativetrial courterrors, prosecutorialNo. 30640-2-III consol. w/30641-I-III State v. Shouse; State v. Engelstad misconduct, andjurytampering. The charges stem from erratic behavior ofShouse and Engelstad, with their companions, on October 20, 2011, at theproperty ofGerald Moccardine. FACTS An understanding ofthe criminal charges requires some background. Victim Gerald Moccardine makes his living collecting scrap metal and other "junk." To acquire the scrap metal, Moccardine often scouts his environs looking for businesses or residences where cars or otherjunkhave accumulated. In early October 20I0, Gerald Moccardine saw cars and otherpotentiallyvaluable scrap metal at Joseph Shouse's charredhome. Moccardine approached Shouse at his home and asked whether he could collectthe scrap metal and otherjunklittered around his property. Accordingto Moccardine, Shouse gave him permission to take some, but not other, scrap. On October 13, 2010, Gerald Moccardine and a friend went to Joseph Shouse's home late at night to collectthe offered scrap metal. While they loaded thejunkinto Moccardine's van, Shouse and two ofShouse's friends arrived. Shouse demanded they puteverythingback. Moccardine testified he returned all objects. Joseph Shouse and his friend Gary Engelstad believed Moccardine stole some property. On October 17, Joseph Shouse and Gary Engelstad drove to Gerald Moccardine's property. Moccardine considered the visit to be friendly and invited the two into his house trailer. Dawn Flood, who stayed with Moccardine at the time, was inside the
I 2 

# 1No. 30640-2-II1 conso!. w/30641-1-II1 State v. Shouse; State v. Engelstad
trailer. Flood concluded that Engelstad and Shousewere angry with Moccardine. She testified that Shouse carried a hammer and asked her, apparently outside ofMoccardine's earshot, ifshe would "freakout" ifhe smashed Moccardine's hands with it. Report of Proceedings (RP) at 182. She asked him ifit mattered, and continued "visiting" with Shouse and Engelstad because she "didn'twant any problems." RP at 181. Gerald Moccardine showed Joseph Shouse around Moccardine'sproperty. As the two walked the property, Gary Engelstad searched the trailer. After Shouse and Engelstad left the property, Moccardine noticed several objects missing, including an air gun and old tools. Two days later, on October 19, Julie Curry went to Gerald Moccardine'sproperty to get snowtires. The sun set before Moccardine couldplace the tires on Curry's car. So Curry decided to spend the night with Dawn Flood and Moccardine insidethe trailer. Thepresence ofCurry and Flood compound the charges against Joseph Shouse and Gary Engelstad. Beforeretiring to bed, Curry decided to retrieve cigarettes from her van. When she opened the trailer door, she saw four people standing around hervan. Surprised to

see people, she called to Moccardine and Flood, "there is people here." RP at408. Gerald Moccardine and Dawn Flood came to the trailerdoor. Fourpeople then walked from Julie Curry's van toward the trailer door. Flood and Moccardine recognized two of them as Joe Shouse and Gary Engelstad. Curry recognized one ofthem as Gary 3No. 30640-2-II1 consol. w/30641-1-II1 State v. Shouse; State v. Engelstad Engelstad. Stephanie Van Comen, the mother ofJoseph Shouse's son, was also present with Shouse and Engelstad, althoughMoccardine, Flood, and Curry did not see her. Afterreaching the doorto Moccardine's trailer, Joe Shouse asked Moccardine and Dawn Flood why they complained to the police abouthim. Moccardine and Flood denied having contacted the police. Gary Engelstadthen approached Moccardine and said "this is the second time Ihave hadto deal with you on a cardeal," and he told Moccardine that he was going to takehis alternators. RP at 300. Moccardine said, "nobody is taking nothing from here." RP at 299. Engelstad then hit Moccardine in the face. Moccardine backed into his trailer, and Engelstad followed. Engelstad threw an objectthat struck Moccardine in the head, causinghim tobleed. Upon GeraldMoccardinebeing struck, his billfold fell offa table and ontothe floor. Moccardine bent to retrieve the billfold, as Gary Engelstad asked, "whatare you after," and brandishedwhat appeared to be a firearm. RP at 308. Dawn Flood, in an attemptto stop Engelstad, tugged on his sweat shirt, exclaiming "knock it off," "come on," "why do you gottopull a gun?" RP at 199. Flood testified attrial that Engelstad did notpoint the gun at her and that she did not feel threatened byEngelstad. At trial, Julie Curry testified that Gary Engelstad pointed the gun "at all ofus more
or less

...because we were all standing close togetherbut mostly at [Moccardine]." RP at414. Moccardine testified, "Say I seen [Engelstad] holding the gun .... [I]t could havebeen a piper;] all I seen was a[n] octagonal barrel." RP at 311. 4No. 30640-2-II1 consol. w/30641-1-II1 State v. Shouse; State v. Engelstad

As a result ofEngelstad'spointinghis gun, Curry feared for her safety. During trial, the State asked ifshe felt threatenedby the gun? Curryresponded: Yeah, because mostly because I felt maybe not so muchthat itwas-I mean I don'twant tobelieve anybody was goingto get shot or anythingbut it wasjustgetting-itwas getting scarybecause thejostling and everything I thought perhaps it would go offaccidentally, yeah, I was a little worried. RP at 416. The State asked further ifCurry was afraid for her safety? Curry replied, "Yeah, I was at that pointjusttrying tobackout[;] I was like trying to duck outunder people's arms and stuffand getback." RP at416. With weapon in hand, Gary EngelstadtookGerald Moccardine's wallet andthe $15 therein. Julie Curry went outside to hervanto calm her barking dogs. AfterCurry left the trailer, a third person entered the house trailerbrandishing a weapon. Upon entering, he movedthe gun withhis gaze acrossthe trailer in a sweeping fashion. Gary Engelstad lowered his weapon and went outside. Thethird man then demanded Dawn Flood's and Gerald Moccardine's cell phone batteries and said, "you ain't going outside now." RP at 315. Heholstered his weapon, but straddled the trailer dooruntil the gang offour left. Julie Curry testifiedthatthe "person standing atthe doorway

... was holding a gun on [Moccardine] and [Flood] to keep them" in place. RP at 422. Whilethe third man stood guard, Gary Engelstad, Joseph Shouse, and a fourth

manrummaged through the various trailers on Moccardine's property. During this time, Shouse approached Julie Curry while she stood onthe steps ofhervan, called outto her,

5No. 30640"2"III consol. w/30641-1"III State 

### v. Shouse; State 

### v. Engelstad
and identified himself. Curry then recognized Shouse. Shouse told Curry her van blockedtheir access to a trailer and asked herto move it. Curry complied. After Curry moved her van, she laid down inside it. For the next 45 to 90 minutes, Julie Curry, Dawn Flood, and Gerald Moccardine heardpeople opening and closing cars and trailers and moving objects. None ofthem

saw anyone take any scrap. After Gary Engelstad, Joseph Shouse, and their two to three companions left Gerald Moccardine's property, Dawn Flood and Moccardine discovered two crown royal bags ofFlood'sjewelry, Flood's son'sPlay Station Portable, Moccardine's welder, torch, and various othertools missing. PROCEDURE The State charged Gary Engelstad and Joseph Shouse each with nine crimes as follows: 1. Robbery in the first degree by taking personal property ofGerald Moccardine by the use offorce and, in the course ofthe robbery, being armedwith a deadly weapon, displaying what appeared to be a deadly weapon, or inflicting bodily injury on Moccardine; 2. Assault in the second degree upon Gerald Moccardine with a deadly weapon, the handgun; 3. Robbery in the first degree bytaking personal property ofDawn Flood bythe 

# I I 6No. 30640-2-III consol. w/30641-1-II1 State v. Shouse; State v. Engelstad

use offorce and, in the course ofthe robbery, being armed with a deadly weapon, displaying what appearedtobe a deadly weapon, or inflictingbodily injury on Flood; 4. Assault in the second degree upon DawnFloodwith a deadly weapon, the handgun; 5. Assault in the second degree upon Julie Curry with a deadly weapon, the handgun; 6. Burglaryin the first degree byentering the building ofGerald Moccardine while armed with a deadly weapon orduring which Moccardine was assaulted; 7. Unlawfulpossession ofa firearm in that each hadprior disqualifying crimes; 8. Theft in the second degree by taking auto parts and tools ofGerald Moccardine valued atmore than $750; and 9. Theft in the second degree by takingjewelry ofDawn Flood valued at more than $750. Shouse andEngelstad were charged as both a principal and an accomplice on each count. The charges againstboth were heard during the same trial. We are unaware of any charges against the third and fourth men. Attrial the State called as witnesses several responding police officers, Gerald Moccardine, Dawn Flood, Julie Curry, and Stephanie Van Comen. Because Shouse and Engelstad contend the prosecutor's examination ofthose witnesses amounted to misconduct, we recount some ofthe testimony the State elicited from a responding 7No. 30640-2-III consol. w/3064I-I-III State v. Shouse; State v. Engelstad

officer and Stephanie Van Comen. Corporal James Nale interviewed Dawn Flood afterthe night ofOctober 19. During the course ofthe State's direct examination ofNale, the State asked ifNalemade any observation during that interview? Naleresponded that Flood "was candid and open with me and answered all my questions withouthesitation." RP at 87. Thenthe State asked whether he completed any training orcourses regarding witness interviews. Nale replied he had, and this exchange followed: Q. And what does that consist of? A. Consists ofbasic law enforcement academy and then it consists of justexperience and then also going through specific training for interviewing such as go[ing] through the Reed [sic] technique, which is a specific interview and interrogation trainingthat touches onthings such as, you know, body language, behavior, speech patterns and stuffand it was

### aRP at 88. At thatpoint, Engelstad's attorney interjected, "[c]ould we have a sidebar, please[?]" RP at 88. The court consented and held a sidebar offthe record. When the jury left, the court described the sidebar as follows: "Mr. Youngbrought up the Read technique [sic] that officerhad testified to andjusttrying to I think give [ the prosecutor] a warning. I think I didn'trule at all. I didn't make any ruling." RP at 92. Afterthe sidebar, theprosecutor continued questioning Corporal Nale: Q. And as you're interviewing individuals, are you assessing their demeanor? A. Yes. Q. Is that a factor in your-because I believe you testified that you felt she was not being false with you that youhad8No. 30640-2-III conso!. w/30641-I-III State v. Shouse; State v. Engelstad [Englestad's Attorney]: Objection. That's exactly what we were talking about? THE COURT: I'll sustain the objection. [Prosecutor]: State has no further questions. RP at 89. None ofthe parties requested a limiting instruction orthe courtto strike any portions ofNale'stestimony. Later during trial, the prosecutorexamined Stephanie Van Comen. During the questioning, he asked her to explain why she agreed to testify. Van Comen testified that the State offered to resolve herburglary charges and help her get her kids back. 

### In exchange, she explained, she was to tell "thetruth." RP at 500. Despite her agreement, the State contended Stephanie Van Comen perjured herself

on the stand and sought to impeach her during its direct examination by inquiring about conflicting statements she provided law enforcement during pretrial interviews. Police interviewed Van Comen several times before trial. In the first interview, Van Comen stated shehad observed Shouse with a shotgun. Later, sherecanted, claiming she made up the statementto retaliate for Shouse's infidelity. She affirmed the other statements she made in her first interview. At trial, however, Van Comen disavowed even these statements she had previously affirmed. 

### It is in this context the State questioned Van Comen about the shotgun, asking her why she did not correct all ofher statements in her second interview, when she recanted ever seeing Shouse with a shotgun. During the closing arguments ofthis case the prosecutorbegan by asking thejury



### 9 

# 1

, I I 

# i 1No. 30640-2-III consol. w/30641-I-III State v. Shouse,' State v. Engelstad

to think aboutwho the victim is in this case. "Is the victim Gerald Moccardine? Is the victim Dawn Flood? Is the victim Julie Curry?" RP at 642. The prosecutor asked this question "because it appears to [him] thatthroughout the questioning by counsel for Mr. Shouse and Mr. Engelstad that they want you [thejury] to believe that [Shouse and Engelstad] are the victims in this case." RP at 642. But "'[t]he only information that's been elicited in this trial about Mr. Shouse and Mr. Engelstad being victims oftheft have

come from victims whohave said [Shouse] told me Mr. Moccardine took things." RP at 646. The prosecution continued: However, did we get a sense from any witness that attempted to testifY as to items taken whatthose items were? We did I guess withMs. Van Comen sort ofget here because

... she talked about property that she believed may have been taken that [Shouse] told her about

.... [But] [s]he was impeached with the inconsistency in her statement provided to law enforcement and those that wereprovided in court. That goes to her credibility. And soeven ifshe had maybe provided a list earlier who would that list have come from? Mr. Shouse because again she didn't see anything. Now Mr. Shousehad the opportunity to provide us withthe information as to what he claimed Mr. Moccardinetook did he not? RP at 646. Atthis point, Shouse's attorney objected. The court did not respond and the prosecutor continued. "Mr. Shouse had a contactwith Officer Baird" three days after the armed robbery. RP at 646. "And in denying any involvementwith that, he told Officer Baird

...there have beenpeople coming and going from here stealingmy stufftoo." RP at 647. OfficerBaird asked, "Doyou know who?" RP at 647. Shouse "suspected Gerald 

# I

1 Moccardine." RP at 647. Baird asked, Shouse "[w]hy [do you] suspect him? Did [you]

10No. 30640-2-III consol. w/3064I-I-III State v. Shouse; State v. Engelstad

see him? Does he have yourproperty? Give me information. Tell me what'smissing." RP at 647. But "Shouse appeared not really to want to provide any ofthat. Said he had

noproof. Seemed as ifhejustwanted to get rid of[Baird]." RP at 647. Upon conclusion oftrial, ajury convicted Joseph Shouse and Gary Engelstad of all charges: two counts ofrobbery in the first degree, three counts ofassault in the second degree, burglary in the first degree, two counts oftheft in the second degree, and unlawful possession ofa firearm in the first degree. At sentencing the State stipulated that the two charges oftheft in the second degree merge with the two counts ofrobbery in the first degree. The court dismissed the two counts oftheft in the second degree with prejudice. On appeal Joseph Shouse and Gary Engelstad argue they neitherrobbed nor assaulted Dawn Flood or Julie Curry because they did not take anything from Flood's person orin her presence and they did not point the weapon that looked like a firearm at Flood orCurry. In addition, they argue the State failed to prove Engelstadbrandished a real, working firearm. Shouse argues the State failed toprove he was an accomplice or that he had actual or constructive possession necessary to support a conviction for unlawful possession ofa firearm in the first degree. But ifthis court finds sufficient evidence supports their convictions, they urge this court to vacate their convictions because the prosecutor engaged in misconduct. Atthe very least, they contendthis court

11No. 30640-2-111 consol. w/30641-1-1I1 State v. Shouse,' State v. Engelstad

must merge their second degree assault convictions with their first degree robbery convictions. Shouse and Engelstad also filed statements ofadditional grounds. In those statements, they argue counsel provided ineffective assistance, the trial court denied them dueprocess byrefusing to splittheirtrials and failing to instructthejury oftheir Fifth Amendmentrights, thatthe prosecutor engaged in misconduct, insufficient evidence supports theirburglary conviction, and cumulative errors denied them a fair trial. LAW AND ANALYSIS ISSUE 1: Does sufficient evidence establish Joseph Shouse's accomplice liability? ANSWER 1: Yes. Joseph Shouse first contends the State failed to prove beyond a reasonable doubt his liability as an accomplice to any ofthe charged crimes. In this section, we exclude from discussion accomplice liability for the crime ofunlawful possessionofa firearm. That question deserves additional analysis and will be addressedbelow. RCW 9A.08.020(3) defines when a person is an accomplice. The statute states: A person is an accomplice ofanotherperson in the commission ofa crime if: (a) [w]ith knowledge that it wouldpromote or facilitate the commission ofthe crime he 12 

# t I I 

### iNo. 30640-2-III consol. w/30641-1-II1 State v. Shouse; State v. Engelstad (i) [s]olicits, commands, encourages, or request such otherperson to commitit; or (ii) [a]ids or agrees to aid such otherperson inplanning or committing it; or (b) [hlis conduct is expressly declared by law to establish his complicity. Merepresence at a crime scene is insufficientto convict under accomplice liability. State v. Rotunno, 95 Wn.2d 931,933,631 P.2d 951 (1981). To provethat one present is an aider, it must be established that one is "ready to assist" in the commission ofthe crime. Rotunno, 95 Wn.2d at 933 (citingIn re Wilson, 91 Wn.2d 487,491,588 P.2d 1161 (1979)). The law holds an accomplice equally culpable as the principal, regardless ofwhich one actuallyperformed the harmful act. State v. Silva-Baltazar, 125 Wn.2d 472,886P.2d 138 (1994); State v. McDonald, 90 Wn. App. 604, 611, 953 P.2d 470 (1998), a/f'd, 138 Wn.2d 680, 981 P.2d 443 (1999). All that is required is thatthe accomplice has encouraged, rendered assistance, or aided in the planning or commission ofthe crime. State v. McDonald, 90 Wn. App. at 611 (1998). When a defendant challenges the sufficiency ofthe evidence underlying his conviction, a reviewing courtviews the evidence in the lightmost favorable to the State and asks whether any rational trier offact could find the essential elements ofthe crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-21, 616 P.2d 628 (1980). The reviewing court considers circumstantial evidence equally reliable as direct evidence. 

# i f State v. Myers, 133 Wn.2d 26,38,941 P.2d 1102 (1997); State v. Delmarter, 94 Wn.2d 

# \ 13 

### I 

# I INo. 30640-2-II1 consol. w/30641-1-II1 State v. Shouse; Statev. Engelstad 634,638,618 P.2d 99 (1980). "Credibility determinations are for the trier offact and cannot be reviewed on appeal." State v. Camarillo, 115 Wn.2d 60,71,794 P.2d 850 (1990). We conclude that thejury heard more than sufficient evidence to convictJoseph Shouse ofeitherprincipal or accomplice liability for all crimes committed. Shouse was much more than merely present at Gerald Moccardine's property during the commission ofthe crimes. He likely instigated the crimes. He certainly participated in the crimes. Joseph Shouse and his colleagues came together, searched Moccardine'sproperty together, held people captive together, tookpersonal property ofothers together, and left together. Witnesses testified that around October 13, Shouse came home to find Moccardine loading his things into a van. Shouse was mad and demanded Moccardine and his friend put everything back. Moccardine testified he did, but testimony suggests Shouse did not believe him. On October 17, Joseph Shouse and Gary Engelstad went to Gerald Moccardine's property. While there, they searched for Shouse'sproperty. Dawn Flood testified that as Shouse and Engelstad looked through the items on Moccardine's property, Shouse would identify what he believed was his. After they left, Moccardine discovered several items missing.

14No. 30640-2-III consol. w/30641-1-III State 

### v. Shouse; State 

### v. Engelstad

On October 19, Joseph Shouse, Gary Engelstad, StephanieVan Comen and others wentto GeraldMoccardine'sproperty in two separate cars, but arrived at the sametime. Once at Moccardine'sproperty, Van Comen saw Engelstad, Shouse, and others rummagingthrough Moccardine's property. Julie Curry testified that Shouse identified himselfand asked herto movehervan sothat they may access one ofMoccardine's trailers. Engelstad, Shouse, and others later returned to her and Shouse'shome. The evidence, with reasonable inferences drawn in favor ofthe State, shows Shouse actively encouraged orrequested**En~elstad** and others to go to Moccardine's propertywith the intent ofretrieving items hebelieved Moccardinepreviously stole from him. ISSUE 2: Does sufficient evidence support Joseph Shouse and Gary Engelstad's conviction for first degree robbery againstDawnFlood? ANSWER2: Yes. Shouse and Engelstad argue that first degree robbery requires the State establish beyond a reasonable doubtthat eachthreatened use offorce with the intent to unlawfully takeDawn Flood'spersonal property from herperson or in herpresence. They arguethe State failed to establish that they either threatenedFlood orthatthey tookproperty from heror in herpresence. Actually, the State need onlyprovethat one ofthe defendants or another oftheir cohorts threatened Flood with a deadly weapon and took Flood's 15No. 30640-2-III consol. w/30641-l-II1 State v. Shouse; State v. Engelstad property from herperson or in herpresence. RCW 9A.S6.200. Thejuryheard sufficient evidence that one ofthe defendants or an accomplice performed such acts. Dawn Flood was threatened and had herpersonal property stolen in herpresence. The second gunman who sweptthe trailer with his gun and stood guard by the trailer door threatened Flood and Moccardine with force ifthey tried to leave. Where such threats preclude a person from beingpresentwhen their property is stolen, his orher physical presence is not required. State v. Chamroeum Nam, 136 Wn. App. 698, 705,150 P.3d 617 (2007). Julie Curry testified that the person standing at the doorway held a gun on Moccardine and Flood to keep them stationary. Thethreat by the second gunman prevented Flood from being physically present at Moccardine's car when a member of the group took the two crown royal bags full of jewelry from it. This conduct constitutes first degree robbery. Joseph Shouse and Gary Engelstad also contendthat no property was taken from the person or in the presence ofDawn Flood. But "ataking ofpersonal property can
occur in the presence ofthe victim even though the victim was not immediatelypresent." State v. Stearns, 61 Wn. App. 224, 229, 810 P.2d 41 (1991). Where force or fear prevents a victim from approaching the place oftheft, the taking occurs in his or her presence. State v. McDonald, 74 Wn.2d 141,144,443 P.2d 651 (1968). Julie Curry testified thatthe person standing at the doorway held a gun on Moccardine and [Flood] to keep stationary. The man standing in the doorway prevented Flood from beingpresent 16No. 30640-2-III consol. w/30641-I-III State v. Shouse; State v. Engelstad

when Shouse, Engelstad, and others rummagedthrough herproperty. Laterthat night Van Comen observed Engelstad and another man sifting through a crownroyal bag filled withjewelry,personal property ofDawn Flood. ISSUE 3: Does sufficient evidence support thejury's finding that Gary Engelstad and Joseph Shouse assaulted Dawn Flood? ANSWER3: Yes. Joseph Shouse and Gary Engelstad next contend the State failed to establish beyond a reasonable doubt that either intentionally assaulted DawnFlood with a deadly 

# I

il weapon. This argument is also misplaced. Sinceboth were charged with accomplice liability, the State need onlyprove that a member ofthe group at the Moccardine property assaulted DawnFlood with a gun. One is guilty ofsecond degree assault when one assaults another with a deadly weapon or with intentto commit a felony. RCW 9A.36.021. Because assault is not defined in the criminal code, the courts rely upon the common law definition ofassault,

one ofwhich is to place a person in fear ofbodily injury bythe use ofa weapon that has the apparentpowerto do harm. State v. Carlson, 65 Wn. App. 153, 158, 828 P.2d 30 (1992). While DawnFlood downplayed her fear ofthe gunEngelstadbrandished, she feared the second man who swept the room with gun in hand. She evidencedher fear by 17No. 30640-2-111 consol. w/3064 1-1-111 State v. Shouse; State v. Engelstad staying in the trailer while others rummaged through herproperty. This testimony, viewed in the light most favorable to the State supports thejury's finding that Shouse and Engelstadthreatened Flood with the bodily harm, and that shereasonably feared imminent bodily injury. ASSAULT IN THE SECOND DEGREE: JULIE CURRY ISSUE4: Does sufficient evidence support Joseph Shouse and Gary Engelstad's conviction for the second degree assault ofJulie Curry? ANSWER4: Yes. Joseph Shouse and Gary Engelstad also contend the State failed to establish beyond a reasonable doubt thatthey intentionally assaulted Julie Curry. To convict a defendant ofsecond degree assault, thejurymust find specific intent to create reasonable fear and apprehension ofbodily injury. State v. Ward, 125 Wn. App. 243, 248, 104 P.3d 670 (2004), abrogatedon othergrounds byState v. Grier, 171 Wn.2d 17,246P.3d 1260 (2011) (citingState v. Byrd, 125 Wn.2d 707, 713, 887 P.2d 396 (1995)). Intent may be inferred from pointing a gun. Ward, 125 Wn. App. at 248. Engelstad pointed the gun at Curry, among others. Curry testified that she felt threatened and feared for her safety as a result. Ajurymay reasonably infer from the direction Engelstad pointed his weapon that he intended to create in Curry an 18No. 30640-2-III consol. w/30641-1-III • State v. Shouse; State v. Engelstad apprehension and fear ofimminentbodily injury. In fact, that is whatCurry felt. Curry feared for her safety as evidenced by herjostling and ducking underthe arms of Moccardine and Flood to avoid any bullet fired by Engelstad. Viewed in the lightmost favorable to the State, any rationaljurycould find that Engelstad and Shouse committed second degree assault against Julie Curry. ISSUE 5: Does sufficient evidence support Joseph Shouse's convictions for unlawful possession ofa firearm in the first degree? ANSWER5: No. RCW 9.41.040 makes it illegal for a felon topossess a firearm. In relevantpart RCW 9.41.040provides: (l)(a)A person, whether an adult orjuvenile, is guilty ofthe crime of unlawfulpossession ofa firearm in the first degree, ifthe person owns, has in his orherpossession, orhas in his orher control any firearm afterhaving previously been convicted or found not gUilty by reason ofinsanity in this state orelsewhere ofany serious offense as defined in this chapter. Both Gary Engelstad and Joseph Shouse had previous convictions for serious offenses that disqualified each from possessing a firearm. Shouse was chargedwith unlawful possession ofa firearm both as a principal and an accomplice. Thus, we must determine whetherthejuryheard sufficient evidenceto convicthim as, first, a principal, and second, an accomplice. We donot know ifthe man stationed at the trailerthreshold 19No. 30640-2-II1 consol. w/3064I-I-III State v. Shouse; State v. Engelstad
had a conviction disqualifYing him from possessing a firearm. So, ifShouse is guilty as
an accomplice to someone else's unlawful possession, it must be based upon possession ofthe gun by Gary Engelstad. Under the statute, the State may prove a felon unlawfully possesses a firearm as a principal by showing actual possession orthrough constructivepossession. State v. Raleigh, 157 Wn. App. 728, 737, 238 P.3d 1211 (2011). The State establishes actual possession when the defendant has physical custody ofthe firearm. State v. Reichert, 158 Wn. App.374, 390,242 P.3d44 (2010). We agree with Joseph Shouse that the only evidence that he actually possessed a firearm during theraid at Gerald Moccardine's property comes from impeachment testimony elicited from Stephanie Van Comen. The purpose ofimpeachment is to attack the credibility ofthe witness and not to furnish substantive evidence ofthe crime. State v. Jefferson, 6 Wn. App. 678, 683,495 P.2d 696 (1972). Thus, any gUilt for principal liability must rest on constructive possession. The State agrees and declares it never sought to base guilt upon actual possession. The State may establish constructive possession by showing the defendant had dominion and control overthe firearm. Reichert, 158 Wn. App. at 390; State v. Murphy, 98 Wn. App. 42,46,988 P.2d 1018 (1999). Dominion and control means that the defendant can immediately convert the item to their actual possession. State v. Jones, 146 Wn.2d 328,333,45 P.3d 1062 (2002); Reichert, 158 Wn. App. at 390. This control need not be exclusive, but mere proximity to the firearm is insufficient to show dominion 20No. 30640-2-III consol. w/30641-I-III State v. Shouse; State v. Engelstad
and control. State v. Embry, 171 Wn. App. 714, 747; 287 P.3d 648 (2012); State v. George, 146 Wn. App. 906, 920,193 P.3d 693 (2008); State v. Chouinard, 169 Wn. App. 895,899,282P.3d 117 (2012). Knowledge ofthepresence ofa fireann, without more, is insufficientto show dominion and control to establish constructive possession. Chouinard, 169 Wn. App. at 899; State v. Hystad, 36 Wn. App. 42,49,671 P.2d 793 (1983). The Statehinges Joseph Shouse's conviction for unlawful possession ofa fireann
on its theory that he was an accomplice to the acts ofEngelstad and the other gunman. If Shouse was an accomplice, the State contends, he exercised dominion and control over the fireanns and thereby constructivelypossessed them. We believe the State erroneously merges accomplice liability with constructive possession. Although the end result is the same, the two are separate concepts with different elements. IfShouse constructivelypossessed a fireann, he is gUilty as aprincipal. IfShouse is guilty as an accomplice, it is because someone else that he assisted either actually or constructively possessed a fireann unlawfully. Underprincipal liability, Shouse must be disqualified from possessing a gun. Under accomplice liability, anotherperson possessing a gun must be the one disqualified. Accomplice liability and constructive possession are independent pegs upon which a conviction for unlawful possession could stand. We agree with Joseph Shouse that thejury lacked sufficient evidence to convict him ofconstructive possession ofa fireann. In a case resembling this one, State v. 21No. 30640-2-111 consol. w/30641-1-1I1 State v. Shouse; State v. Engelstad Embry, 171 Wn. App. 714, ajury convicted three defendants, two as accomplices, of attempted first degree murder and first degree unlawful possession ofa firearm. On appeal, the two defendants charged as accomplices challenged their unlawful possession convictions for insufficient evidence, contending they neither actually nor constructively possessed the firearm. Another defendant, a member ofthe same gang, shot a rival gang member and then hopped in a car in which the other defendants were respectively driver and passenger. Although noting that one may constructively possess a firearmjointly with anotherperson, the courtreversed the two defendants' convictions for insufficient evidence. The court emphasized that: (1) authorities never recovered a gun; (2) no witness saw the defendants with the gun in theirhands; (3) no witness testified they exercised control or dominion; (4) and although one could infer the defendants may have known the third defendant entered their carwith a gun, theirproximity was insufficient to prove constructive possession. In the case on appeal, law enforcement never recovered a gun. No witness testified to seeing Joseph Shouse with a gun in his hands or that he exercised control or dominion over the guns Engelstad and another actually possessed. While Shouse arrived and left with Engelstad, his mere proximity to the weapon is insufficient to show he constructively possessedthe firearm. The State contends that, since Shouse and Engelstad worked togethertoward regaining Shouse's possessions and because Shouse stole objects only after Engelstad and a thirdperson pulled guns on the victims, Shouse 22No. 30640-2-II1 consol. 

### w/3064I-I-III State 

### v. Shouse; State 

### v. Engelstad

can be tagged with constructivepossession. We find no casethat supports such a conclusion. Such evidence is more directed to the theory ofaccomplice liability. Neitherparty directly addresses whether one may be convicted for unlawful possession ofa firearm under accomplice liability. No Washington decision directly addresses this question. State v. Embry only asked whether fellow gang members could be convicted ofconstructive possession. We hold that one can be gUilty under accomplice liability. The accomplice liability statute, RCW 9A.08.020(3), lists the circumstances whichrender one an accomplice "ofa crime." The statute does not exclude any crimes from accomplice liability. Thejuryinstructions given by the court read awkwardly in the context ofdeclaring one guilty ofunlawful possession ofa firearm by accomplice liability, but, read as a whole, the instructions allowed thejuryto convict Joseph Shouse ofunlawful possessionthrough accomplice liability. In a foreign decision, Commonwealth v. Knox, 50 A.3d 749 (Pa. Super. Ct. 2012), known for defendant twins switching seats at trial to confuse witnesses, the testimony showed that only one brotherpossessed a gun during the events leadingto and after the murder. The appellate court agreed with the other brother that the evidence did not support a conviction for his unlawful possession ofa firearm. The court, nonetheless, held that one can be guilty as an accomplice for unlawful possession. His beingpresent atthe scene when his brotherpulled the gun and fleeing with his brother, among other evidence, was sufficient for accomplice liability. The Pennsylvania accomplice liability 23No. 30640-2-111 consol. w/30641-1-1I1 State v. Shouse; State v. Engelstad

statute is stricterthan the Washington statute. We already reviewed the rules ofaccomplice liability and the rules for determining sufficiency ofevidence. Forthe same reasons that we concluded that Joseph Shouse could be convicted as an accomplice for other crimes, we hold there was sufficient**eviden~e** to convict Shouse ofunlawful possession ofa firearm. To prove that

one present is an aider, it must be established thathe is "ready to assist" in the commission ofthe crime. Rotunno, 95 Wn.2d at 933; In re Wilson, 91 Wn.2d 487,491 (1979). To repeat from earlier, Shouse was much more than merely present at Gerald Moccardine'sproperty during the commission ofthe crimes. Reasonable inferences establish that he instigated and was the leader behind the crimes. He and his comrades searched for property allegedly his. Joseph Shouse and his colleagues came together, searchedMoccardine's property together, heldpeople captive together, tookpersonal property ofothers together, and left together. Shouse and Engelstad wentto the Moccardine trailer together, at which time Engelstadpulled his gun. There is no evidence that Shouse left the trailerbefore the pulling ofthe gun. Our conclusion that sufficient evidence existed to convict Joseph Shouse on the basis ofaccomplice liability does not complete our analysis. The verdict does not disclose whetherthejury convicted Shouse on the basis ofaccomplice liability or principal liability

. Ifajurymay have found the defendant guilty eitherbecause of 24No. 30640-2-III consol. w/30641-1-II1 State v. Shouse; State v. Engelstad principal or accomplice liability, there must be sufficient evidence to support both theories to avoid reversal. State v. Collins, 76 Wn. App. 496,501,886P.2d 243 (1995); State v. Amezola, 49 Wn. App. 78, 90, 741 P.2d 1024 (1987). Therefore, we reverse the conviction ofJoseph Shouse on the charge ofunlawful possession ofa firearm. When one alternative means for committingthe crime is not supported by sufficient evidence, the remedy is toremand for a new trial solely on the second alternative means for committing the crime. State v. Maupin, 63 Wn. App. 887, 894-95, 822 P.2d 355 (1992);Amezola, 49 Wn. App. at 90. Thus, weremand, for a newtrial, the charge against Joseph Shouse for unlawful possession ofa firearm on the ground of accomplice liability. ISSUE 6: Does sufficient evidence support thejury's finding that someone at the robbery

was armed with a real gun, thusjustifyingthe deadly weapon sentence enhancement? ANSWER

### 6: Yes. Both Joseph Shouse and Gary Engelstad argue that the State failed to prove beyond a reasonable doubt that anyone was armed with a real gun. The two cling to testimony from Gerald Moccardine that he was unsure whetherthe object Engelstad pointed was a gun or an octagonal tool. The defendants also emphasize that the other alleged gun at the scene was pointed through a doorway at night, no witness provided a 25No. 30640-2-III consol. w/30641-1-III State v. Shouse; State v. Engelstad description ofthe gun, and the State neverrecovered any gun. We hold that sufficient evidence supports the deadly weapon sentencing enhancement special verdict. RCW 9.95.015 allows an enhanced sentence ifthe defendant or an accomplice is armed with a deadly weapon at the time ofa crime. Evidence to prove the presence ofa firearm in the commission ofa crime is sufficientto uphold ajury's special verdict ifa single witness testifies that during the commission ofthe crime a firearm was present, regardless ofwhetherthe firearm is located. State v. Tongate, 93 Wn.2d 751, 754, 613 P.2d 121 (1980). While Moccardine could not be sure whether Engelstad brandished a firearm, he was positive "the other guy had a gun, [he] knew it was a gun." RP at 311. Dawn Flood testified Engelstadpulled a gun and that "another guy came around the

comerwith a gun." RP at 198. Julie Curry also testified that Engelstad pulled a gun and, after she leftthe trailer, another "person standing at the doorway

...was holding a gun
on [Moccardine] and [Flood] to keep them" in place. RP at 422. Joseph Shouse also contends the special verdict instruction did not comply with the law because it did not specify thejurymust find the defendants were armed with a real gun. In State v. Tongate, the court imposed a deadly weapon enhancement afterthe juryreturned a special verdict finding Tongate was armed with what appeared to be a firearm or other deadly weapon. Thejury in Shouse and Engelstad's trial were instructed that they must find they were "armed with a firearm." Clerk's Papers (CP) at 144. The trial court also defined a "firearm" in instruction 13 as "aweapon or device from which a 26No. 30640-2-III consol. w/30641-1-III State v. Shouse; State v. Engelstad projectile may be fired by an explosive such as gun powder." CP at 114. Only a real firearm fires aprojectile using explosives. Thejury instructions required thejuryto find the presence ofa deadly weapon. Therefore, they were sufficient. ISSUE 7: Whether the trial court's dismissal oftwo theft charges negated the essential elements ofShouse and Engelstad's robbery convictions? ANSWER7: No. The trial court dismissed the two theft charges after thejuryreturned a verdict. Joseph Shouse and Gary Engelstad ask this court to inferthat the trial court dismissed these charges for insufficient evidence. They then argue that, ifinsufficient evidence supportedthe theft convictions, the evidence is also insufficient to support the robbery convictions predicated on theft. Thus, according to Shouse and Engelstad, we must dismiss the two, first degree robbery convictions. Shouse and Engelstad's argument is based upon the false premise that the theft charges were dismissed because ofinsufficiency ofevidence. Nevertheless, the trial court dismissed the theft convictions because they merged with the first degree robbery convictions for doublejeopardy purposes. As analyzed above, the evidence supporting the convictions for first degree robbery is sufficient and should be affirmed.



### 27No. 30640-2-III consol. w/3064I-I-III State 

### v. Shouse; State 

### v. Engelstad

ISSUE 

### 8: Didthe prosecutor engage in misconductthat deprived Shouse ofa fair trial? ANSWER 8: No. Joseph Shouse argues thatthe State engaged in two acts ofprosecutorial misconduct. First, it calledwitness Stephanie Van Comen, a witness that it knew would not give it useful evidence, so it could introduce impeachment evidence that thejury could use substantively to convict Shouse ofunlawful possession ofa firearm. Second, the State vouched for hertestimony when itelicitedtestimony that shewouldtestify truthfully. The State may impeach a witness with prior out-of-court statements ofmaterial fact that are inconsistent with testimony in court, even ifsuch statements would otherwise be inadmissible as hearsay. State v. Clinkenbeard, 130 Wn. App. 552, 569, 123 P.3d 872 (2005); State v. Dickenson, 48 Wn. App. 457, 466,740P.2d 312 (1987). Impeachment evidence affects the witness's credibility; itis notprobative ofthe substantive facts. Clinkenbeard, 130 Wn. App. at 569; State v. Johnson, 40 Wn. App. 371, 377, 699 P.2d 221 (1985). Out ofconcernthat ajurycould struggle with distinguishing between impeachment and substantive evidence, courts have consistently heldthe State may not
use such a statement under the guise ofimpeachment for the primary purpose ofplacing before thejury substantive evidence which is not otherwise admissible. State v. Hancock, 28No. 30640-2-III consol. w/30641-1-II1 State v. Shouse; State v. Engelstad
109 Wn.2d 760, 763, 748 P.2d 611 (1988); State v. Lavaris, 106 Wn.2d 340, 344, 721 P.2d 515 (1986); Clinkenbeard, 130 Wn. App. 569-70; State v. Babich, 68 Wn. App. 438, 444, 842 P.2d 1053 (1993). When distinguishing betweenpermissible impeachmenttestimony and impermissible testimony elicited underthe guise ofimpeachment, courts ask whetherthe State called the witness for theprimarypurpose ofimpeaching her with otherwise inadmissibletestimony. Lavaris, 106 Wn.2d at 345 (citing UnitedStates v. DeLillo, 620 F.2d939,946 (2d Cir. 1980)). Courts reason that the State'sprimary purpose was not to impeach a witness when the impeachmenttestimony corroborated elements essential to the State's case, when the testimony provided important circumstantial evidence ofthe events leading up to the case, and where nothing in the record indicates that there was
reason to anticipate thatthe witness would not testifY consistently with her earlier statements. DeLillo, 620 F.2d at 946; Hancock, 109 Wn.2d at764; Lavaris, 106 Wn.2d at 346-47. Courts conclude that the State'sprimary purpose in calJing a witness was to impeach thatwitness when the only testimony establishing an essential element ofthe State's case comes from the impeachment testimony and the State relies on the testimony in closing argument. Clinkenbeard, 130 Wn. App. 570-71. Herethe State did not offer Stephanie Van Comen'stestimony with the primary purpose ofimpeaching her. Van Comen's testimony more closely resembles the type courtspermitted inLavaris, Hancock, andDeLillo. Van Comen, like the witness in 29No. 30640-2-III consol. w/30641-1-III State 

### v. Shouse; State 

### v. Engelstad Lavaris, corroborated essential elements ofthe robbery, thatEngelstad and others took a purple crownroyal bag containingjewelryfrom Moccardine's lot. Like the witness in DeLillo, Van Comen testified to the circumstances leading up to the robbery, including the day, time, and location where it occurred, and the people there. See generally RP at 482-86. And like Hancock, nothing in the record indicates the State anticipated Van Comen would testify inconsistently with earlier statements. Police interviewed Van Comen on a couple ofoccasions. In her second interview, Van Comenrecanted her previous statement that she observed Shouse with a shotgun. But in that and subsequent interviews she reaffirmed the other statements she made. The State only impeached her after it became clearhertestimony was inconsistent with the prior statements she reaffirmed. More importantly, the State neverused the impeachmenttestimony to argue that Shouse held a gun during the robbery. Even ifthe State offered Stephanie Van Comen'stestimony with the primary intent ofimpeaching her, Joseph Shouse must still establish prejudice. Lavaris, 106 Wn.2d at 344. Shouse fails to meet this burden. To showprejudice, Shouse would have to show the impeachment testimony the State elicited was that he possessed a shotgun. But that is not the testimony the State elicited. The State impeached Van Comen by showingpolice afforded her an opportunity to correct any misstatements. When they did, Van Comen stated she previously lied; she did not see Shousewith a shotgun. The State

30No. 30640-2-III consol. w/30641-1-III State v. Shouse,' State v. Engelstad
relied onVan Comen'srecantation to impeach hertestimony at trial. Moreover, the State did not use the impeachmenttestimony to argue that Shouse was armed with a gun. Shouse also claims the State improperly vouched for Van Comen. The State may notvouch for a witness because it is entirely for thejuryto determine whether a witness testified truthfully. UnitedStates v. Brooks, 508 F.3d 1205, 1210 (9th Cir. 2007); State v. Ish, 170 Wn.2d 189, 196,241 PJd 389 (2010). In general, the State improperly vouches for a witness if(1) the prosecutor expresses his orherpersonal beliefas to the veracity of the witness or (2) the prosecutor indicates that evidence not presented at trial supports the witness's testimony. Brooks, 508 F.3d at 1209; Ish, 170 Wn.2d at 196. We agree that the State vouched for Stephanie Van Comenby eliciting the fact that she agreed to testify truthfully in exchange for their assistance in resolving a burglary charge. In Ish, our high Court held that where the credibility ofthe witness had not previously been attacked, referencing the witness's out-of-courtpromise to testify truthfully was irrelevant and had thepotential to prejudice the defendant. 170 Wn.2d at 199. Van Comen'stestimony had not previously been attacked. Thus, the reference to her out-of-courtpromise to testify truthfully was improper. Once a defendant establishes that aprosecutor's statements are improper, this court determines whetherthe statementprejudiced the defendant. State v. Emery, 174 Wn.2d 741, 760, 278 PJd 653 (2012). Ifthe defendant did not object at trial, the defendant is deemed to have waived any error, unless the prosecutor's misconduct was so 31No. 30640-2-111 consoL w/30641-1-I11 State 

### v. Shouse; State 

### v. Engelstad flagrant and illintentioned that an instruction could not have cured the resulting prejudice. Underthis heightened standard, the defendant must show that (1) 'nocurative instruction would have obviated any prejudicial effect on thejury' and (2) the misconduct resulted in prejudice that'had a substantial likelihood ofaffectingthejury verdict.' Emery, 174 Wn.2d at 760-61 (internal citation omitted) (quoting State v. Thorgerson, 172 Wn.2d 438,455,258 P.3d 43 (2011)). Shouse did not object at trial and thus must show

no instruction wouldhave cured the misconduct and the misconduct had a substantial likelihood ofaffecting thejurytriaL Shouse alleges neither and can show neither. There is no reason a limiting instruction would not have cured any potential prejudice. Here, thejudge instructed thejurythat they are the "solejudges ofthe credibility ofeach witness." CP at 102. Juries are presumedto follow the trial court's instructions, absent evidence proving the contrary. State v. Kirkman, 159 Wn.2d 918,928, 155 P.3d 125 (2007). Shouse also fails to allege or establish that the misconduct likely resulted in substantial prejudice, particularly when the State vouched for testimony that Shouse did not possess a shotgun. ISSUE 9: Didthe prosecutorelicit improper testimony about Dawn Flood's veracity when questioning Corporal Nale? ANSWER9:

32No. 30640-2-III consol. w/30641-1-III State v. Shouse; State v. Engelstad

No. Joseph Shouse and Gary Engelstad complain for the first time on appeal that the trial court did not"instruct thejury to disregard the testimony that Flood was candid and open. Br. ofAppellant at 36. Generally, appellate courts will not consider issues raised for the first time on appeal. RAP 2.5(a); State 

### v. Tolias, 135 Wn.2d 133, 140,954P.2d 907 (1998). A claim may be raised, however, ifit is a manifest error affecting a constitutional right. Kirkman, 159 Wn.2d at 934 (citing RAP 2.5(a)(3». To do so, an appellant "mustidentify a constitutional error and show how the alleged error actually affected the defendant's rights at trial. It is this showing ofactualprejudice that makes the error 'manifest,' allowing appellate review." Kirkman, 159 Wn.2d at 926-27; State 

### v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). Based upon the foregoing principles, we analyze alleged constitutional errorraised for the first time on appeal by applying a four stepprocess. First, we employ a cursory determination as to whetherthe alleged error in fact suggests a constitutional issue. Second, we determine whetherthe alleged error is manifest. Essential to this determination is aplausible showing by the defendantthat the asserted errorhad practical and identifiable consequences in the trial ofthe case. Third, ifthe court finds the alleged

errorto be manifest, then the court must address the merits ofthe constii'utional issue. Finally, ifthe court determines that an error ofconstitutional import was committed, then, and only then, the courtundertakes a harmless error analysis. State v. Barr, 123 Wn. 33No. 30640-2-III conso!. w/30641-1-III State v. Shouse; State v. Engelstad App. 373, 380, 98 P.3d 518 (2004); State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992). Joseph Shouse and Gary Engelstadraise a constitutional issue. Joseph Shouse and Gary Engelstad arguethatthejury may have improperly found them guilty based on Corporal Nale's opinionthat DawnFloodwas candid and open. Nale testifiedthat during his interview he found Flood candid and open. Later, the State askedNale to explain any training he received for interviewing a witness. Nale explainedhe learned the Reid technique for interviewing before defense counsel requested a sidebar. Afterthe sidebar, the prosecutor continued questioning Corporal Nale: Q. And as you're interviewing individuals, are you assessingtheir demeanor? A. Yes. Q. Is that a factor in your-because I believe youtestifiedthat you felt she was not being false with youthat you had­ [Englestad'sAttorney]: Objection. That's exactly whatwe weretalking about? THE COURT: I'll sustainthe objection. [Prosecutor]: State has no further questions. RP at 89. We agree with Joseph Shouse and Gary Engelstad thatthe State committed constitutional error by commenting on the credibility ofDawn Flood. Improperly opining on a victim's credibility is an error ofthe constitutional right to ajurytrial. Kirkman, 159 Wn.2d at 927. Corporal Nale characterizedFlood as "open and candid." RP at 87. "Candid" means she is "free from bias, prejudice, or malice" and "marked by 34No. 30640-2-III consol. w/30641-1-III State 

### v. Shouse; State 

### v. Engelstad

honest sincere expression." WEBSTER'S THIRD INTERNATIONALDICTIONARY 325 (1993). Nale's characterization is an implicit, ifnottacit, endorsement ofFlood'sbelievability. We do notreverse, however, because we do not find prejudice. "Manifest" in RAP 2.5(a)(3) requires a showing ofactual prejudice. State v. Walsh, 143 Wn.2d 1,8,17P.3d 591 (2001); Kirkman, 159 Wn.2d at 935. "Actual prejudice" requires Shouse and Engelstad showthe errorhad "practical and identifiable consequences in the trial." Kirkman, 159 Wn.2d at 935. In consideringwhether defendants established prejudice inKirkman, the court noted that the "record in each case also establishe[d] that eachjuryreceived specific instructions that they were the soletriers offact andthe sole deciders ofthe credibility of witnesses." 159 Wn.2d at 937. Ourtrial court also instructedthejurors that they were "the solejudges ofthe credibility ofeach witness

... [and] thejudges ofthe value or weightto be given to the testimony ofeach witness." CP at 102. Jurors are presumedto follow the court's instructions. Kirkman, 159 Wn.2d at 937. The court's curative instructions, in addition the othertestimony supportingtheir convictions, suggests neither sufferedprejudice. Kirkman, 159 Wn.2d at 938. ISSUE 10: Didthe prosecutorunconstitutionally commenton Shouse's rightto remain silent in closing arguments?

35No. 30640-2-III consol. w/30641-1-III State v. Shouse; State v. Engelstad

ANSWER 10: No. During closing arguments, the prosecutor stated, "NowMr. Shousehadthe opportunity to provide us with the information as to what he claimed Mr. Moccardine took did he not?" RP at 646. Because ofthe context ofthe statement, wedisagree with Joseph Shousethatthe remark was an improper statement infringing on Shouse'srightto remain silent. The United States Constitution'sFifth Amendment, made applicable to the States by the Fourteenth Amendment, prohibits the States from forcing a defendanttotestify at trial. Griffin v. Cal., 380 U.S. 609, 612, 85 S. Ct. 1229, 14 

### L. Ed. 2d 106 (1965); State v. Easter, 130 Wn.2d 228, 238, 922 P.2d 1285 (1996). Toprotectthisprivilege, the State is alsoprohibited from eliciting comments from witnesses or commenting during closing argument on a defendant's silence, ifsuch comments may lead ajury to infer guilt. Easter, 130 Wn.2d at 236. Even allusion to the defendant's failure to testify violates his constitutionalprivilege against compulsory self-incrimination, since it cuts down on the privilege by making its assertion costly. 13 ROYCE A. FERGUSON WASHINGTON PRACTICE SERIES: CRIMINALLAW §4504 (3d ed. 2004) (citing State v. Wilmoth, 31 Wn. App. 820, 644 P.2d 1211 (1982)). In Washington, a defendant's constitutional right to silence applies in both pre andpost arrest situations. State v. Romero, 113 Wn. App. 779, 786-87, 54 P.3d 1255 (2002); Easter, 130 Wn.2d at 243. 36No. 30640-2-111 consol. w/30641-1-1I1 State 

### v. Shouse; State 

### v. Engelstad Duringthe closing arguments ofthis case the prosecutor began by asking whothe victim was. "Is the victim Gerald Moccardine? Is the victim Dawn Flood? Is the victim Julie Curry?" RP at 642. The State asked this question because counsel for Shouse and Engelstad suggested that the defendants were the victims ofa crime. The State sought to make the point that there was no evidence ofGerald Moccardine takingproperty of Joseph Shouse. So, the prosecutor rhetorically asked, "NowMr. Shouse had the opportunity to provide us with the information as to what he claimed Mr. Moccardine took did he not?" RP at 646. The State spoke further that Shouse had the opportunity to provide a list ofitems taken from him when Shouse spoke with Officer Baird three days after the armed robbery. We hold the prosecutor's comments did not implicate Joseph Shouse'sFifth Amendmentright. Ifa defendant voluntarily offers information to police, "histoying with authorities by allegedly telling only part ofhis story" is not protected by Miranda. State 

### v. Young, 89 Wn.2d 613, 621,574 P.2d 1171 (l978). Shouse told Baird he suspected Moccardine ofstealing items from him, but refused to explain why he suspected Moccardine orwhat items were stolen. Because Shouse did not remain silent entirely, the State could comment on what Shouse did not say. State v. Pottorf, 138 Wn. App. 343, 348, 156 P.3d 955 (2007). Assuming we concluded that the State's closing remarks implicated the constitutional right to remain silent, we still would not reverse. The comment only 37No. 30640-2-III consol. w/30641-I-III State v. Shouse; State v. Engelstad indirectly commented on Joseph Shouse's silence and he shows no prejudice. Under an analysis created in Romero, we first question whetherthe prosecutor's comment is a direct or indirect comment on the defendant's rightto silence. Romero, 113 Wn. App. at 790. On the one hand, a witness or state agent makes a direct comment whenhe or she explicitlyreferences that a defendant invoked his or herright to remain silent. Pottorff, 138 Wn. App. at 346; Romero, 113 Wn. App. at 793. For example, in Romero, this court found apolice officer made a direct comment about the defendant's right to remain silent when the officer testified, "Iread him his Miranda warnings, which he chose not to waive, would not talk to me." Romero, 113 Wn. App. at 793. In another instance, the court found an officermade a direct commentwhen the officertestifiedhe read the defendant his Miranda rights and the defendant refused to talk. State v. Curtis, 110 Wn. App. 6, 9, 37 P.3d 1274 (2002). On the other hand, a witness or a state agent makes an indirect comment on the right to remain silent when ajury could infer from the commentthe defendant attempted to exercise his right to remain silent. Pottorff, 138 Wn. App. at 347. For example, courts ruled that apolice officer made an indirect comment when the officertestified the defendant claimed he was innocent and agreed to take a polygraph, but only after discussing the matter with his attorney. State v. Lewis, 130 Wn.2d 700, 706, 927 P.2d 235 (1996); State v. Sweet, 138 Wn.2d 466, 480,980 P.2d 1223 (1999). The courts concluded that the witnesses' testimony was a mere reference to silence, not a "comment"on the silence, and thus not reversible error absent a showing of 38

# I I No. 30640-2-III consol. w/30641-1-III State 

### v. Shouse; State 

### v. Engelstad prejudice. Sweet, 138 Wn.2d at 481 (citingState v. Lewis, 130 Wn.2d 700, 706-07, 927 P.2d 235 (1996». The State, in ourtrial, uttered a "merereference"to Shouse's silence. Unlike the comments by officers in Romero and Curtis, theprosecutor did not explicitly reference Shouse'sright toremain silent, nor did the State even reference Shouse'srefusal to
answer Baird's questions. He spoke ofShouse's opportunityto and failure to tell Baird what items were stolen from him when he complained about stolen objects. Shouse cannot showthe State's comments prejudiced him. To showprejudice, Shouse must demonstrate thatthe comments on his silence were used as substantive evidence ofhis guilt. State v. Burke, 163 Wn.2d 204,215,181 P.3d 1(2008). The prosecution's comments were not used as substantive evidence ofShouse's guilt. Whether Shouse disclosed to police why he suspected Moccardine ofstealing from him

or what items may have been taken is irrelevantto whether Shouse aided Engelstad and others to rob Moccardine and Flood, and assault Moccardine, Flood, and Curry. The defendant bears the burden ofdemonstratingthat the prosecutor's remarks

were improper. State v. Gregory, 158 Wn.2d 759,841, 147 P.3d 1201 (2006); State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997). Joseph Shouse has not methis burden.

39No. 30640-2-III consolo w/30641-I-III State V. Shouse; State V. Engelstad

ISSUE 11: Did the prosecutor engage in misconductby interjecting facts not in evidence in his closing argument? ANSWER 

### 11: No. Joseph Shouse and Gary Engelstad argue that, in his closing argument, the prosecutor interjected facts not in evidence. Specifically, the prosecutor said Shouse "showed up at the trailer, knows the gun'sthere. Steps forward and says, 'Hey, they are goingto take care ofthis and I am goingto go getthe property.'" RP at 662-63. Later the prosecutorcommented, in response to defendant's emphasizing the lack ofweapons found, thatthepeople that bring the weapons take the weapons with them. "Doesthat

mean weapons weren'tthere? No." RP at 664. We question whether Shouse and Engelstadpreserved this argument for appeal. Shouse objected when the prosecutor stated Shouse constructively possessedthe weapon Englestad actually possessed. But no counsel later objected to the State's statementthat suspects often bringweapons to a crime and depart with them. We conclude the prosecution did notengage in misconduct anyway. The defendantbears the burden ofdemonstrating whether the prosecutor's remarks were improper. Gregory, 158 Wn.2d 759 at 841; Stenson, 132 Wn.2d 668 at 718. Allegedly improper comments mustbe viewed in the context ofthe entire argument, and a 40No. 30640-2-III consol. w/30641-1-III State v. Shouse; State v. Engelstad prosecutor enjoys wide latitude in drawing and expressing reasonable inferences from the evidence. Gregory, 158 Wn.2d at 841; State v. Gentry, 125 Wn.2d 570, 641,888 P.2d 1105 (1995). Even ifthe defendant shows the comments were improper, the error does not require reversal unless the appellate court determines there is a substantial likelihood the misconduct affected thejury'sverdict. Gregory, 158 Wn.2d at 841; Gentry, 125 Wn.2d at641. A prosecutor commits reversible misconductby urging thejuryto decide

a case based on evidence outside therecord. State v. Pierce, 169 Wn. App. 533, 553,280 P.3d 1158 (2012); State v. Claflin, 38 Wn. App. 847, 851,690P.2d 1186 (1984). We address first the prosecution's reference to the thoughts ofJoseph Shouse when arriving atthe crime scene. In the past, courts found aprosecutor argued facts outside the record when a prosecutor spoke in the first person as he described the defendant's thoughtprocess before the crime. Pierce, 169 Wn. App. at 553-54. The court found the prosecutor's statement amountedto arguing facts outside the evidence because it attributed "repugnant and amoral thoughts to [the defendant]-thoughts that

were based onthe prosecutor's speculation and not the evidence." Pierce, 169 Wn. App. at 554. But unlikePierce, the prosecutorbelow did not attribute repugnant and amoral thoughts to Shouse, nor did he speculate about the motive ofthe crime. Theprosecutor described why Shouse may have aided Engelstad based on the testimony provided by witnesses.

41No. 30640-2-111 consol. w/30641-1-1I1 State v. Shouse; State v. Engelstad Stephanie Van Comen testified the group wentto Moccardine's trailer "topick up
some stuff[Moccardine] had taken from [Shouse]." RP at 478. Van Comen's testimony supports the prosecutor's statements about why Shouse wentto Moccardine's property that night. Even iftheprosecutor's statements were improper, Shouse and Engelstad fail to assert, let alone establish, prejudice. The defendantbears this burden. Gregory, 158 Wn.2d at 841. We next address the prosecutor's commentthat suspects who bring weapons to crimes departwith them. This statement is based upon testimony in the record. The prosecutor asked Detective Vraves, "Inthose several cases [investigating crimes involving firearms], how often have you found firearms thatwere used in the commission ofa crime left behind?" RP at 64. Detective Vraves answers, "mostofthe time the weapon goes with the subject." RP at 64. The prosecutor did not improperly interject facts not in evidence. ISSUE 12: Did cumulative errors deny Shouse a constitutionally fair trial? ANSWER 12: No. Joseph Shouse argues thatprosecutorial misconduct, combined with minimal evidence introduced at trial showing his actual involvement in the crimes, amounts to 42No. 30640-2-III consol. w/30641-1-III State v. Shouse; State v. Engelstad

cumulative error and deprived him ofa fair trial under the Sixth and Fourteenth Amendments to the United States Constitution. We disagree. We find there to be strong evidence ofguilt and only one harmless error. ISSUE 13: Should Engelstad's and Shouse's convictions for second degree assault merge with their convictions for first degree robbery? ANSWER 13: Yes. SHOUSE CONTENDS Joseph Shouse and Gary Engelstad maintain thattheir respective convictions for second degree assault merge with first degree robbery convictions. Therefore, they argue that their convictions for assault impose doublejeopardy upon them. We agree that merger applies and reverse the assault convictions. Although Shouse and Engelstad mention the constitutional rightprohibiting doublejeopardy, we base our decision upon the merger doctrine and apply no double jeopardy scrutiny. Merger and doublejeopardy are related concepts and a double jeopardy analysis may include a merger analysis. State v. Freeman, 153 Wn.2d 765, 772­ 73,108 P.3d 753 (2005). Nevertheless, the concepts are distinct. The merger ofcrimes is not necessarily ofconstitutional origin. State v. Frohs, 83 Wn. App. 803, 811 n.2, 924 P.2d 384 (1996). Instead, the doctrine ofmerger is based upon the assumption that the 43No. 30640-2-II1 consol. w/30641-I-II1 State v. Shouse; State v. Engelstad legislature did not intend to punish two crimes, when one crime is a predicateto a second crime. The merger doctrine is a common law or case law rule ofstatutory interpretation. State v. Vladovic, 99 Wn.2d 413,420-21,662 P.2d 853 (1983); Frohs, 83 Wn. App. at 809. The State may bring mUltiple charges arising from the same criminal conduct in a singleproceeding. State 

### v. Michielli, 132 Wn.2d 229, 238-39, 937 P.2d 587 (1997). Nevertheless, the merger doctrine may require the dismissal ofone charge after trial. Freeman, 153 Wn.2d at 772-73. Mergeroccurs when the legislature clearly indicated that, in orderto prove a particulardegree ofcrime, the State must prove not only that a defendant committed that crime but that the crime was accompanied by an act that is defined as a crime elsewhere in the criminal statutes. State v. Deryke, 110 Wn. App. 815, 822-23,41 P.3d 1225 (2002), aff'd, 149 Wn.2d 906, 73 P.3d 1000 (2003). Merger is appropriate, however, only when the degree ofone offense is raised by conduct separately criminalized by the legislature. The courtpresumes the legislature intendedto punish both offenses through a greater sentence for the greater crime. Freeman, 153 Wn.2d at 772-73; State v. Chesnokov, 175 Wn. App. 345, 349, 305 P.3d 1103 (2013); State 

### v. Parmalee, 108 Wn. App. 702, 710, 32 P.3d 1029 (2001). For instance, the doctrine applies when, to prove first degree rape, the State mustprove not only that a defendant committed rape, but also that therape was accompanied by an act defined as a

44No. 30640-2-111 consol. w/30641-1-1I1 State v. Shouse; State v. Engelstad
crime elsewhere in the criminal statutes, such as assault orkidnapping. Vladovic, 99 Wn.2d at 420-21. Aperson is guilty ofrobbery in the first degree if, during the commission ofa robbery, he is armed with a deadly weapon, displays what appears to be a firearm or other deadly weapon, or inflicts bodily injury. RCW 9A.56.200. Robbery in the second degree is any otherrobbery. RCW 9A.56.2l0. Assault in the second degree includes an assault with a deadly weapon. RCW 9A.36.021(l)(c). Therefore, when the State charges an accused with robbery in the first degree for being armed with or use ofa deadly weapon, the degree ofthe robbery is increased as aresult ofa second degree assault. In four decisions, Washington courts haveheld that the legislature did not intendto punish first degree robbery separately from second degree assault, at least when the assault facilitates the robbery. In re Pers. Restraintof Francis, 170 Wn.2d 517, 242 P.3d 866 (2010); State v. Kier, 164 Wn.2d 798, 194 P.3d 212 (2008); Freeman, 153 Wn.2d 765 (2005); State V. Chesnokov, 175 Wn. App. 345 (2013). "Underthe merger rule, assault committed in furtherance ofarobbery merges with robbery and without contrary legislative intent or application ofan exception." Freeman, 153 Wn.2d at 778. State v. Freeman analyzed the assault and robbery statutes. Our Supreme Court noted that "toprove first degree robbery as charged and proved by the State, the State had toprovethe defendants committed an assault in furtherance ofthe robbery." Freeman, 153 Wn.2d at 778. "[W]ithout the conduct amounting to assault, each would be guilty of 45No. 30640-2-III consol. w/30641-I-III State v. Shouse; State v. Engelstad only second degree robbery." Freeman, 153 Wn.2d at 778. "Underthe mergerrule, assault committed in furtherance ofa robbery merges with robbery" unless an exception applies or there is other evidence ofcontrary legislative intent. Freeman, 153 Wn.2d at 778. In Freeman, the high court found no exception applied and merged the defendant's first degree robbery and second degree assault convictions. In Francis, the court vacated a conviction for second degree assault, since it was the predicate crime used to raise robbery from second degree to first degree. In State v. Chesnokov, 175 Wn. App. 345 (2013), we merged one second degree assault conviction into the first degree robbery conviction, but left standing two assault convictions. Chesnokov pointed his gun atthree victims, during the robbery. Only one assault was needed to raise therobbery conviction from second degree to first degree. Despite the strong language in State v. Freeman, there is no per se rule that assault in the second degree merges into robbery in the first degree. 153 Wn.2d at 774. Rather,

a case by case approach is required. 153 Wn.2d at 774. Even iftwo convictions would appear to merge on an abstract level under this analysis, they may be punished separately ifthedefendant's particular conduct demonstrates an independentpurpose 

### or effect of each. Kier, 164 Wn.2d at 804. We find no independentpurpose in Shouse and Engelstad's crimes. The crimes were committedto the end oftakingproperty from GeraldMoccardine's land. 46No. 30640-2-III consol. w/3064I-I-III State v. Shouse; State v. Engelstad
The State contends Shouse's and Engelstad's case can be distinguished from Freeman. InFreeman, the defendants argued and the court found the first degree robbery conviction merged withthe second degree assault conviction because the defendant assaulted the victims in furtherance ofthe robbery. 153 Wn.2d at 779. Without the assault conviction, the State could only have proved second degree robbery-not first degree. But unlike Freeman, according to the State, Shouse and Engelstad's convictions for first degree robbery are predicated on facts distinct from those forming the basis of their second degree assault convictions. In the contextofthe events ofOctober 19, the State alleges Shouse and Engelstad assaulted Moccardine, Flood, and Curry inside Moccardine's trailer whenEngelstad and

a second gunmanpointed their weapons at the three. Afterwards, Engelstad, Shouse, and others robbed Moccardine and Flood as the second man who brandished a weapon held them inside the trailer. We agree thatthe acts may be legally and factually distinct, but that does not end our inquiry. We also agree withthe State that our facts may be distinguished from Freeman, but our facts cannot be distinguished from the later decision. Kier, 164 Wn.2d 798 (2008). State v. Kier provides the controlling ruling because each case has more than one assault victim, but we do notknow which assault thejuryused to convictthe defendants offirst degree robbery. InState 

### v. Kier, Qualagine Hudson drove his Cadillac with his cousin, Carlos Ellison, as apassenger. The car exhibited a "For Sale" sign. The operator ofanother car 47

# 1 I 

# I No. 30640-2-II1 conso!. w/30641-1-II1 State v. Shouse; State v. Engelstad 

# I I honked its hom, and Hudson, believing someone might be interested in buying the 

# ! Cadillac, stopped his car. Hudson exited his car and Herbert Kier exited the other car. 

## i Kier pointed a gun at Hudson and Hudson fled the scene. Kierthen approached the I

# I t passenger side ofthe Cadillac, displayed his gun, and ordered Ellison from the car. Kier and his accomplices then drove offin the Cadillac. After Kier was convicted ofboth second degree assault and first degree robbery, the State argued against merger on the ground that only Hudson owned the Cadillac and the State only based the assault charge

on the pulling ofthe gun on Ellison. The court rejected the argument becausethe evidence and instructions allowed thejuryto consider either assault ofEllison orHudson

as the basis for elevating the robbery. Therule oflenity required the merger ofKier's second degree assault conviction into his first degree robbery conviction. Here, the evidence and instructions afforded thejurythe same opportunity to consider alternative acts constituting assault as the basis for elevating the robberies to first degree. Thejury could have considered the victim ofthe assault and the victim of the robbery to bethe same. Boththe robbery and the assault convictions could bepredicated upon the same assault. For example, both crimes could be rooted on the second gunman's actions: sweeping theroom with his gun and then standing guard as others took Moccardine and Flood'sproperty. In the alternative, thejury could have chosen to elevate the robbery to

48No. 30640-2-III consol. w/30641-1-III State 

### v. Shouse; State 

### v. Engelstad
first degree onthe basis ofthe bodily injury Engelstad inflicted onMoccardine before taking $15 from his wallet. Theusual remedy for violations ofthe prohibition ofdoublejeopardy is to vacate the lesser offense. State 

### v. Hughes, 166 Wn.2d 675, 686 n.13, 212 P.3d 558 (2009). Thus, we vacate the convictions ofJoseph Shouse and Gary Engelstad for second degree assault. ISSUE 14: Whether Gary Engelstad's counsel was ineffective because he "discussed different things for his case," andbecause his counsel rested after the prosecution did. ANSWER 14: No. We now begin our discussion ofGary Engelstad and Joseph Shouse's statements ofadditional grounds. Engelstad first argues thathis lawyerprovided ineffective assistance. To establish ineffective assistance ofcounsel a defendant must satisfY a twoparttest (1) his orher counsel's assistance was objectively unreasonable and (2) as a result ofcounsel's deficient assistance, he or she sufferedprejudice. Stricklandv. Washington, 466 U.S. 668,688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), This court presumes counsel was effective. State v. Gomez-Cervante, 169 Wn. App. 428, 434, 282 P.3d 98 (2012).

49No. 30640-2-III consol. w/30641-1-III State v. Shouse; State v. Engelstad Engelstad makes no argument overcoming thepresumption ofeffectiveness. His claimthathis counsel and he discussed different things is vague. Construing his claim in the light favorable to him he alleges his counsel presented a defense that they did not discuss, but he offers no evidence supporting this contention. Engelstad may take issue with his counsel's choice not to present witnesses at trial. Yet, Engelstad fails to identifY any witness his counsel should have calledtotestifY. This court presumes the choice not to call witnesses is a legitimatetrial strategy ortactic. State v. Grier, 171 Wn.2d 17,33,246P.3d 1260 (2011). ISSUE 15: Did the prosecutor engage in misconduct when he questioned Stephanie Van Comen about her pending burglary charges because that impeached her credibility and made Shouse look guilty, since he was a codefendant in her case as well? ANSWER 15: No. As analyzed earlier, the State may impeach its own witness. Anyway, Engelstad's contention is unsupported in the record. The prosecutor never mentioned Shouse was a codefendant in Van Comen'sburglary charge. ISSUE 16: Whetherthe trial court denied Gary Engelstad a fair trial by refusing to severhis trial from Shouse's trial? 50No. 30640-2-III consol. w/30641-1-III State v. Shouse; State v. Engelstad

ANSWER 16: No. In general, the granting or denial ofa motion for separate trial of jointly charged defendants is entrusted to the sound discretion ofthe trial court and will not be disturbed

on appeal absent a manifest abuse ofdiscretion. State v. Herd, 14 Wn. App. 959,961, 546 P.2d 1222 (1976); State v. Ferguson, 3 Wn. App. 898,479 P.2d 114 (1970). Defendant bears the burden ofdemonstrating specifically how ajointtrial prejudiced his defense. State v. McDonald, 40 Wn. App. 743, 700 P.2d 327 (1985). Engelstad does not allege any specificprejudice, let alone onethat would showthe trial court abused its discretion. ISSUE 17: Whether Gary Engelstad received an unfair trial because a woman slandered both Shouse and him by name in the hallway when thejurytook a bathroom break? ANSWER 17: No. Defense counsel alerted the trial court that avictim in anotherprosecution against Joseph Shouse talked in the hallway with aprosecutor. Defense counsel asked the two to speak insidethe prosecutor's office, but the woman continuedtalking in the hall. The record does not show, however, that the woman spoke to anyjurors orthat anyjurors overheard hercomments. 51No. 30640-2-III consol. w/30641-1-III State 

### v. Shouse; State 

### v. Engelstad

ISSUE 18: Whether Gary Engelstad Fifth Amendmentright to remain silent was violated because the trial court failed to instruct thejurythat it could not draw any adverse inferences from his decision not to testity? ANSWER 18: No. Engelstad's claimed error is contrary to the trial record. The trial court instructed thejury, "The defendant is notrequired totestity. You may not use the fact thatthe defendant has not testifiedto infer guilt orto prejQdice him in any way." CP at 108. ISSUE 19: Whether the prosecutorviolated rights ofGary Engelstad, under 18 U.S.C. 

### § 201 (c)(2), by dropping a charge against GeraldMoccardine for possession in exchange for his testimony. ANSWER 19: No. Gary Engelstadpresents no evidence that the prosecution dropped charges against Moccardine in exchange for his testimony. Ifit had, counsel likely would have crossexaminedhim on the issue as he did Van Comen. In any case, 18 U.S.C. 

### § 201 is an antibribery statute that proscribes giving something ofvalue as a bribe for false testimony. UnitedStates v. Moody, 977 F.2d 1420, 1425 (l1th Cir. 1992). Engelstad does not 52No. 30640-2-III consol. w/30641-1-III State 

### v. Shouse; State 

### v. Engelstad
contend any ofMoccardine'stestimony is false. Thus, the statute is inapplicable and its application is unsupported by the record. ISSUE 20: WhetherJoseph Shouse'srights were violated by the trial court's instruction to the jurythathe waspreviously convicted ofa serious felony wasprejudicial? ANSWER20: No. Thejuryinstruction mentioningJoseph Shouse'sprior conviction was relevant because ofthe charges ofunlawful possession ofa firearm. Joseph Shouse acknowledges that he stipulatedto thejuryinstruction. As such, he is barred from raisingthis issue on appeal under the invited error doctrine. The doctrine ofinvited error "prohibits a party from settingup an error at trial and then complaining ofit on appeal." State v. Pam, 101 Wn.2d 507,511,680P.2d 762 (1984), overruledon othergrounds byState 

### v. Olson, 126 Wn.2d 315,893 P.2d 629 (1995). Shouse attempts to evade the stipulation by assertinghe did not understand the effect ofthe stipulation. Butthe court specifically asked him ifhe understood. The court asked, "Mr. Shouse, Mr. Engelstad, do you know what we are talking about here?" RP at 456. Shouse responded, "Yes, sir." RP at 456. The court explained, 

### "I need to get it out ofyour mouths notyour attorney's." RP at455. "I amtrying to figure outwhether you'll relieve the state ofits burden ofproof. The fact that youhave been convicted ofa 53No. 30640-2-III consol. w/30641-1-III State v. Shouse; State v. Engelstad
serious offense." RP at 457. Shouse responded, "I'llrelieve." RP at 457. The court followed up, "Yourelieve them ofthat burden?" RP at 458. Shouse, "Yes, sir." RP at 458. The record shows he knowingly and voluntarily stipulated to thejury instruction. ISSUE21: WhetherJoseph Shouse's counsel was ineffective for failing to explain the prejudicial effect stipulatingto a serious offense would have on his trial? ANSWER21: No. Even assuming Shouse's counsel did not explain the effect ofstipulating to a serious offense, the court adequately explained the effect to him. Therefore, he suffered

noprejudice and fails to establish ineffective assistance. Strickland, 466 U.S. at 690. ISSUE 22: Whether Joseph Shouse's counsel provided ineffective assistance whenhe failed to challenge the State's evidence that was destroyedpriorto the trial? ANSWER22: No. The record lacks any suggestion that the State destroyed or lost any evidence prior to triaL

54No. 30640-2-III consol. w/30641-I-III State v. Shouse; State v. Engelstad

ISSUE23: Whetherthe State failed to prove the mens rea and actus reas elements for the trespass element ofburglary againstJoseph Shouse, since Moccardinepreviously invited him onto his property? ANSWER23: No. Next, Shouse contends the State failed to proveburglary since Moccardine previously invited him onto his property. A person commits the crime ofburglary in the first degree when he or she enters orremains unlawfully in a building with intentto commit a crime against aperson orproperty therein. RCW 9A.52.020. A person enters

or remains unlawfully in orupon premises when he or she is notthen licensed, invited, or otherwise privileged to so enter orremain. RCW 9A.52.010(5). While Moccardine invited Shouse onto his property in thepast, sufficient evidence supports thejury's finding he remained on thatproperty unlawfully when he and his cohorts threatened to steal alternators, struck Moccardine, and pointed guns at him. ISSUE24: WhetherJoseph Shouse's counsel provided ineffective assistance when he failed to object to hearsay testimony? ANSWER24: No. 55No. 30640-2-II1 consol. w/30641-1-III State 

### v. Shouse,' State 

### v. Engelstad

To establish ineffective assistance ofcounsel a defendant must satisfY a two-part test (l)that his orher counsel's assistance was objectively unreasonable and (2) that as a result ofcounsel's deficient assistance, he or she suffered prejudice. Strickland, 466 U.S. at 690.Therecord substantiates Shouse's claimthatthe State introduced hearsay evidence, to which his counsel failed to object. Specifically, the State introduced a photographic lineup Deputy SheriffNathan Foster showed Moccardine. Fostertestified Moccardine signed the lineup and identified Shouse. During a break in trial, the court admonished defense counsel for not objecting. The court then concluded, "itwill be admitted at some point ifnot, we'll redress it later." RP at 136. Laterthe State showed the lineup to Moccardine to authenticate his signature identifYing Joseph Shouse. Therefore, any deficiency in the performance ofShouse's counsel did not result in prejudice. ISSUE25: Whether cumulative errors denied Joseph Shouse a fair trial? ANSWER25: No. Joseph Shouse only established his counsel's failure to object to hearsay introducing a lineup in which Moccardine identified him. Finding no others to accumulate, he fails to establish that he was denied a fair trial. 56No. 30640-2-III consol. w/30641-I-III State v. Shouse; State v. Engelstad

CONCLUSION We vacate Joseph Shouse's conviction for unlawful possession ofa firearm and merge Shouse's and Gary Engelstad's convictions for second degree assault with their convictions for first degree robbery. We remand for a new trial ofJoseph Shouse's charge ofunlawful possession ofafirearm. We also remand for resentencing ofboth defendants. Otherwise, we affirmthe convictions below. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

Siddoway, C.J.

Rawson J.P.T.

57