FILED 

DECEMBER 13, 2016 

In the Office of the Clerk of Court 

WA State Court of Appeals, Division Ill 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

DIVISION THREE 

STATE OF WASHINGTON, 

Respondent, 

v. 

CAMERON J. PETERSON, 

Appellant. 

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No. 33965-3-111 

UNPUBLISHED OPINION 

KORSMO, J. - Cameron Peterson appeals a jury verdict convicting him on only 

one of two charges arising from a tavern fight in Spokane. Since there is no showing of 

prejudicial error, we affirm. 

FACTS 

Mr. Peterson was charged with both first and second degree assault arising from a 

tavern fight that spilled out into the street. Inside the tavern, Mr. Peterson struck Gregory 

Zielke Sr., in the head, knocking the man out. The senior Zielke had been engaged in an 

argument with Peterson's friend, Paul Cook. Peterson ran outside the tavern and was 

pursued by Gregory Zielke Jr. 

Peterson was unable to get his car started, so he removed his .25 mm gun from the 

vehicle and fled on foot. The younger Zielke overtook Peterson and tackled him; a fight 
No. 33965-3-111 

State v. Peterson 

ensued. Peterson ended the fight by shooting Zielke once in each of his forearms. The 

younger man then ran to safety, ending the fight. 

The court instructed the jury on self-defense and defense of others, and also that 

the defendant had no duty to retreat. In closing argument, the prosecutor argued, without 

objection, that the jury should consider "what would you have done" and that the 

defendant had reasonable alternatives to self-defense. The jury acquitted Peterson of first 

degree assault involving the younger Zielke, but convicted him of second degree assault 

against the senior Zielke. 

After receiving a standard range sentence of three months in jail, Mr. Peterson 

timely appealed to this court. 

ARGUMENT 

The appeal presents two challenges to the conviction, and Mr. Peterson's 

statement of additional grounds (SAG) presents numerous other arguments. We consider 

first the challenge to the sufficiency of the evidence, and then a claim that the prosecutor 

engaged in misconduct in closing argument, before briefly addressing the pro se 

contentions. 

Sufficiency of the Evidence 

Mr. Peterson first contends that the jury had insufficient evidence of second 

degree assault in light of the evidence that he was defending Mr. Cook. Since the jury 

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No. 33965-3-III 

State v. Peterson 

was not required to believe that evidence, the remaining evidence amply supports its 

verdict. 

Sufficiency of the evidence review is subject to very well settled standards. 

Appellate courts review such challenges to see if there was evidence from which the trier 

of fact could find each element of the offense proven beyond a reasonable doubt. State v. 

Green, 94 Wn.2d 216, 221-222, 616 P .2d 628 (1980) ( citing Jackson v. Virginia, 443 

U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). The reviewing court will 

consider the evidence in a light most favorable to the prosecution. Id. This court also 

must defer to the finder of fact in resolving conflicting evidence and credibility 

determinations. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). 

When a jury is instructed on self-defense or defense of others, the State is required 

to disprove the defense beyond a reasonable doubt. State v. Acosta, IO 1 Wn.2d 612, 615-

616, 683 P .2d 1069 ( 1984 ). Agreeing that the State proved the other elements of second 

degree assault, Mr. Peterson's sole challenge concerns the evidence that he was acting in 

defense of Mr. Cook at the time he struck Mr. Zielke Sr. He argues that the State did not 

disprove his defense of others claim. 

This argument fails because the jury was not required to believe his testimony. 

There was conflicting evidence concerning how the incident occurred. The State's 

evidence showed that Mr. Peterson without warning struck Mr. Zielke Sr. in the back of 

the head in a surprise attack. There was no imminent danger of assault. While the 

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No. 33965-3-III 

State v. Peterson 

defense certainly disagreed with that view of the case, the question here is whether there 

was evidence from which the jury could find that events unfolded as the State argued 

they did. Such was the case. 

The evidence supported the jury's conclusion that Mr. Peterson was not acting in 

the defense of Mr. Cook when he struck the senior Zielke. Therefore, the evidence was 

sufficient to support that conviction. 

Prosecutor's Argument 

Mr. Peterson next contends that the prosecutor engaged in misconduct in her 

closing argument by misstating the law. While we agree that the prosecutor erred, there 

was no prejudice to the defense. 

To prevail on a claim of prosecutorial misconduct, a defendant must establish that 

the prosecutor's conduct was both improper and resulted in prejudice in light of the 

context of the entire record and the circumstances at trial. State v. Thorgerson, 172 

Wn.2d 438,442, 258 P.3d 43 (2011). Prejudice exists only where there is a substantial 

likelihood the misconduct affected the jury's verdict. Id. at 442-443. When a defendant 

fails to object to an improper remark, he or she waives a claim of error unless the remark 

is "' so flagrant and ill intentioned that it causes an enduring and resulting prejudice that 

could not have been neutralized by an admonition to the jury."' Id. at 443 ( quoting State 

v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994)). Thus, a properly challenged 

statement will be reviewed for a "substantial likelihood" that it affected the verdict, while 

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No. 33965-3-III 

State v. Peterson 

unchallenged statements will be considered only if the error was too egregious for a 

timely objection to be worthwhile. This court reviews alleged improper comments in the 

context of the total argument, the issues in the case, the evidence addressed in the 

argument, and the instructions given to the jury. State v. Brown, 132 Wn.2d 529,561, 

940 P.2d 546 (1997). 

A prosecutor has wide latitude to argue reasonable inferences from the evidence. 

Thorgerson, 172 Wn.2d at 448. However, the prosecutor commits reversible misconduct 

when he urges the jury to consider evidence outside the record; appeals to passion and 

prejudice are typically based on matters outside the record. State v. Pierce, 169 Wn. 

App. 533,553,280 P.3d 1158 (2012). Furthermore, a prosecutor is not allowed to assert 

in argument his personal belief in the accused's guilt. State v. Reed, 102 Wn.2d 140, 145, 

684 P.2d 699 (1984). It also is improper for the prosecutor to shift the burden of proof to 

the defendant or argue that the defendant failed to present evidence. Thorgerson, 172 

Wn.2d at 453. 

Appellant contends that the prosecutor's argument that the jury should equate a 

reasonable person with what they would do misstated the law and thereby lowered the 

prosecution's burden of proof. At least one earlier case recognizes that this argument is a 

misstatement of the law because it ignores the objective component of the reasonable 

person standard. State v. Walker, 164 Wn. App. 724, 734-736, 265 P.3d 191 (2011). We 

agree that the prosecutor's statements here were erroneous for the same reason. 

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State v. Peterson 

We need not decide whether or not a timely objection could have cured the error, 

because we conclude that appellant has not established that he was prejudiced by the 

argument. The bulk of the prosecutor's comments in the closing arguments were directed 

to the first degree assault charge-the count on which the jury acquitted Mr. Peterson. 

She made only a few brief references to the second degree assault count, and none of 

those comments referred to the defense of others standard. From the prosecutor's 

perspective, the second degree assault simply involved an attack from behind without 

warning and did not present issues of defense of others. Similarly, none of her "what 

would you have done" statements referenced the second degree assault charge. Each of 

them challenged some action taken by Mr. Peterson related to his confrontation with the 

younger Zielke. 

In the context of the prosecutor's closing argument, all of the challenged 

statements referenced the first degree assault charge on which the jury acquitted Mr. 

Peterson. We are convinced beyond a reasonable doubt that they did not affect the 

verdict on the second degree assault charge. The erroneous statements were not 

prejudicial on that charge. 

Statement of Additional Grounds 

Mr. Peterson filed a pro se SAG raising numerous claims that largely reargue the 

case from his point of view. None of the arguments have merit. 

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No. 33965-3-111 

State v. Peterson 

This court will consider only arguments that are not repetitive of briefing. RAP 

10.IO(a). We also will not consider a defendant's statement of additional grounds for 

review if it does not inform the court of the nature and occurrence of alleged errors. RAP 

10.IO(c); State v. Bluehorse, 159 Wn. App. 410,436,248 P.3d 537 (2011). An appellate 

court is not required to search the record in support of claims made in the SAG. RAP 

10.IO(c). Complaints about attorney performance cannot be entertained if the attorney's 

conduct "can be characterized as legitimate trial strategy or tactics." State v. McNeal, 

145 Wn.2d 352, 362, 37 P.3d 280 (2002). Finally, issues that involve facts or evidence 

not in the record are properly raised through a personal restraint petition, not a statement 

of additional grounds. State v. Calvin, 176 Wn. App. 1, 26,316 P.3d 496 (2013). 

Many of the arguments address either defense counsel's trial strategy or issues 

outside of the record that we cannot consider. The personal statement includes a list of 

nineteen statements of additional grounds for review. Numbers 1, 2, 4, 5, 6, 7, 8, 9, 12, 

18, and 19 present evidence not in the record. Number 3 is a disagreement with his 

counsel's trial strategy. Numbers 10, 11, 14, 15, 16, and 17 are not statements of 

additional grounds for review; most address the shooting incident of which he was 

acquitted. Finally, Number 13 is an accusation of prosecutorial misconduct that cannot 

be located in the report of proceedings. These statements are all without merit. 

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No. 33965-3-111 

State v. Peterson 

Finally, Mr. Peterson's counsel requests that this court excuse him from repaying 

the State for the costs of this appeal. While the author of this opinion would deny the 

request, a majority of the court has voted to grant the request. 

The conviction is affirmed. Appellate costs are waived. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

WE CONCUR: 

Pennell, J. 

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