### FILED DECEMBER 13, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,
v. CAMERONJ. PETERSON, Appellant. ) ) ) ) ) ) ) ) ) No. 33965-3-111

UNPUBLISHED OPINION

KORSMO, J.

- CameronPeterson appeals ajuryverdict convictinghim on only
one oftwo charges arising from a tavern fight in Spokane. Since there is no showing of prejudicial error, we affirm. FACTS Mr. Peterson was chargedwithboth first and second degree assault arising from a tavern fight that spilled out into the street. Inside thetavern, Mr. Peterson struck Gregory Zielke Sr., inthehead, knocking the man out. The seniorZielke hadbeen engaged in an argumentwithPeterson's friend, Paul Cook. Petersonran outsidethetavern and was pursuedby Gregory Zielke Jr. Peterson was unable to gethis car started, so heremovedhis .25 mm gun from the vehicle and fled on foot. The youngerZielke overtookPeterson andtackledhim; a fight

### No. 33965-3-111 State v. Peterson


### ensued. Peterson ended the fight by shooting Zielke once in each ofhis forearms. The younger man then ran to safety, ending the fight. The court instructed thejury on self-defense and defense ofothers, and also that the defendant had no duty to retreat. In closing argument, the prosecutor argued, without objection, that thejury should consider "whatwould you have done" and that the defendant had reasonable alternatives to self-defense. Thejury acquitted Peterson offirst degree assault involving the younger Zielke, but convicted him ofsecond degree assault against the seniorZielke. Afterreceiving a standard range sentence ofthree months injail, Mr. Peterson timely appealed to this court. ARGUMENT The appeal presents two challenges to the conviction, and Mr. Peterson's statement ofadditional grounds (SAG) presents numerous other arguments. We consider first the challenge to the sufficiency ofthe 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 thejuryhad insufficient evidence ofsecond degree assault in light ofthe evidence that he was defending Mr. Cook. Since thejury

2No. 33965-3-III State v. Peterson

was notrequired to believe that evidence, the remaining evidence amply supports its verdict. Sufficiency ofthe evidence review is subjectto very well settled standards. Appellate courts review such challenges to see ifthere was evidence from which the trier offact could find each element ofthe offense proven beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-222, 616 P.2d 628 (1980) (citingJackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). The reviewing court will considerthe evidence in a light most favorable to the prosecution. Id. This court also must defer to the finder offact in resolving conflicting evidence and credibility determinations. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). When ajury is instructed on self-defense or defense ofothers, the State is required to disprove the defense beyond a reasonable doubt. State v. Acosta, IO 1Wn.2d 612, 615- 616, 683 P.2d 1069 (1984). Agreeingthat the State provedthe other elements ofsecond degree assault, Mr. Peterson's sole challenge concerns the evidence that he was acting in defense ofMr. Cook at the time he struck Mr. Zielke Sr. He argues thatthe State did not disprove his defense ofothers claim. This argument fails because thejurywas notrequired to believe his testimony. There was conflicting evidence concerning howthe incident occurred. The State's evidence showedthat Mr. Peterson without warning struck Mr. Zielke Sr. in the back of the head in a surprise attack. There was no imminent danger ofassault. While the 3

### No. 33965-3-III State v. Peterson


### defense certainly disagreed with that view ofthe case, the question here is whether there
was evidence from which thejury could find that events unfolded as the State argued they did. Such was the case. The evidence supported thejury's conclusion that Mr. Peterson was not acting in the defense ofMr. Cook when he struck the seniorZielke. Therefore, the evidence was sufficient to support that conviction. Prosecutor'sArgument 

### 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 ofprosecutorial misconduct, a defendant must establish that the prosecutor's conduct was both improper and resulted in prejudice in light ofthe context ofthe 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 thejury'sverdict. Id. 

### at 442-443. When a defendant fails to object to an improperremark, he or she waives a claim oferrorunless 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 thejury."' 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 4No. 33965-3-III 

### State v. Peterson unchallenged statements will be considered only ifthe error was too egregious for a timely objection to be worthwhile. This court reviews alleged improper comments in the context ofthe total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to thejury. 

### State v. Brown, 132 Wn.2d 529,561, 940 P.2d 546 (1997). A prosecutorhas wide latitude to argue reasonable inferences from the evidence. 

### Thorgerson, 172 Wn.2d at 448. However, the prosecutor commits reversible misconduct when he urges thejuryto 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 beliefin the accused's guilt. 

### State v. Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984). It also is improper for the prosecutorto shift the burden ofproofto 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 thejury should equate a reasonable person with whatthey would do misstated the law and thereby loweredthe prosecution's burden ofproof. At least one earlier case recognizes thatthis argument is a misstatement ofthe law because it ignores the objective component ofthe 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. 

### 5No. 33965-3-111 

### 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 establishedthat he was prejudiced by the argument. The bulk ofthe prosecutor's comments in the closing arguments were directed to the first degree assault charge-the count on whichthejury acquitted Mr. Peterson. She made only a few briefreferences to the second degree assault count, and none of those comments referred to the defense ofothers standard. Fromthe prosecutor's perspective, the second degree assault simply involved an attack from behind without warning and did not present issues ofdefense ofothers. Similarly, none ofher "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 withthe younger Zielke. In the context ofthe prosecutor's closing argument, all ofthe challenged statements referenced the first degree assault charge on which thejury acquitted Mr. Peterson. We are convinced beyond a reasonable doubt that they did not affectthe 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 ofview. None ofthe arguments have merit.

6No. 33965-3-111 

### State 

### v. Peterson
This courtwill consider only arguments that are not repetitive ofbriefing. RAP 10.IO(a). We also will not consider a defendant's statement ofadditional grounds for review ifit does not inform the court ofthe nature and occurrence ofalleged 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 searchthe record in support ofclaims made in the SAG. RAP 10.IO(c). Complaints about attorney performance cannot be entertained ifthe attorney's conduct "can be characterized as legitimate trial strategy ortactics." 

### 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 ofadditional grounds. 

### State v. 

### Calvin, 176 Wn. App. 1, 26,316 P.3d 496 (2013). Many ofthe arguments address either defense counsel's trial strategy or issues outside ofthe record that we cannot consider. Thepersonal statement includes a list of nineteen statements ofadditional 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 ofwhichhe was acquitted. Finally, Number 13 is an accusation ofprosecutorial misconductthat cannot be located inthe report ofproceedings. These statements are all without merit.

7No. 33965-3-111 State v. Peterson Finally, Mr. Peterson's counsel requests that this court excuse him from repaying the State for the costs ofthis appeal. While the author ofthis opinion would deny the request, a majority ofthe courthas voted to grantthe request. The conviction is affirmed. Appellate costs are waived. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

Pennell, J.

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