IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

ALEXANDER TRAVIS JOHNSON,

Appellant.

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No. 34710-9-III

UNPUBLISHED OPINION

FEARING, J. — A jury found Alexander Johnson guilty of harassment, second 

degree assault, malicious harassment, and third degree malicious mischief. On appeal, 

Johnson challenges evidentiary rulings, the performance of his trial counsel, the trial 

court’s handling of his unannounced absence from trial, and the objectivity of a juror. 

We find error in one evidentiary ruling but deem the error harmless. 

FACTS

This prosecution concerns the relationship between defendant Alexander Johnson 

and victim Eric Leggett, occupants of adjoining apartment buildings in downtown 

Spokane. Alexander Johnson is the significant other of Noelle Beck. Noelle Beck 

resided at 319 Cornerstone Courtyard Apartments (Cornerstone) in Spokane, operated by 

FILED

MAY 24, 2018

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 34710-9-III

State v. Johnson

2

the Spokane Housing Authority. Beck’s apartment lay on the third floor of the 

apartments, with windows facing Adams Street and a side alley. 

Alexander Johnson regularly stayed in Noelle Beck’s apartment despite being an 

unauthorized guest. Rules promulgated by the Spokane Housing Authority barred 

unauthorized guests from staying beyond fourteen days. Johnson, with the assistance of 

the Cornerstone manager Melanie Kurtzhall, applied to the housing authority to add his 

name to Beck’s lease. The housing authority denied Johnson’s application. 

Eric Leggett occupied a first floor unit in an apartment building adjoining 

Cornerstone. Presumably because of Leggett’s and Alexander Johnson’s smoking habits, 

the two became acquainted when smoking cigarettes on the sidewalk adjoining the two 

apartment buildings. During these respites, the two discussed many topics, including 

politics and religion. 

The cordial relationship between Eric Leggett and Alexander Johnson deteriorated 

when Leggett told Johnson he was gay and HIV positive. Thereafter and on March 20, 

2016, Leggett found four threatening notes taped to his apartment window. The first note 

read: “‘Wish for a quick death to,’” “‘Eric.’” Report of Proceedings (RP) at 276. The 

second declared: “‘To,’” “‘Eric, don’t fuck with us.’” RP at 278. The third stated: 

“‘To,’” “‘Eric,’” “‘we will take the man on the couch and your fag friends too.’” RP at 

279. The fourth and final note announced: “‘To Eric,’” “‘Eric, do not disrespect anyone 

with your comments. You will be hurt and kept alive.’” RP at 280. Leggett reported the 
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menacing messages to Cornerstone manager Melanie Kurtzhall, who advised Leggett to 

contact the police. 

Melanie Kurtzhall reviewed Cornerstone surveillance tapes following her 

conversation with Eric Leggett. The footage showed Alexander Johnson pacing outside 

the Cornerstone apartments before placing objects on an exterior window of the adjoining 

building and walking away. Kurtzhall also called the police who investigated and took

possession of the notes. 

On April 12, 2015, Eric Leggett heard a sporadic tapping noise, like the sound of 

pebbles, at his window. Leggett exited his apartment, checked the alleyway abutting his 

apartment’s ground floor window, and, after seeing no one, returned inside his apartment. 

The tapping sound resumed, which lured Leggett outside again. A fearful Leggett also 

called 911. He noticed a crack in his glass window, and, while still on the phone with 

law enforcement, felt the pop of a bullet hit his skin, which sensation caused him to drop 

his phone. He deemed his life to be in danger. 

Spokane Police Officer Joshua Laiva responded to Eric Leggett’s emergency call. 

Officer Laiva saw a bright red welt on Leggett’s ribcage near his armpit with a 

corresponding projectile hole in his shirt. Leggett told Officer Laiva that the shot 

originated from the third floor of Cornerstone and that he suspected Alexander Johnson 

to be the shooter. 

Alexander Johnson resided with Noelle Beck on April 12. Beck allowed Officer 
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4

Joshua Laiva to view her apartment, although Johnson was absent. Officer Laiva 

observed windows on the south wall of the apartment. One window was open one inch 

and its blinds pushed to the left. Officer Laiva also noticed Eric Leggett’s window was 

broken, the window screen had a hole from a projectile, and the window framing had 

been damaged. Laiva concluded that the damage to Leggett’s window came from a 

projectile moving at a downward angle. 

Melanie Kurtzhall viewed security footage again after learning of Eric Leggett’s 

injury. Kurtzhall saw Alexander Johnson exiting and entering Cornerstone. Once inside 

Noelle Beck’s apartment, Johnson peered out a window while holding a rifle. While 

outside, Johnson paced on the sidewalk. A caseworker for tenants at Cornerstone, Angel 

Willson, also saw Johnson that day with a rifle. 

Later on April 12, Melanie Kurtzhall noticed Alexander Johnson sitting in his car 

outside Cornerstone. Johnson motioned as if shooting an imaginary gun at Kurtzhall. A 

frightened Kurtzhall returned inside Cornerstone. 

On the evening of April 12, Jack Swanstrom visited his girlfriend’s apartment at 

Cornerstone. Swanstrom saw Alexander Johnson bearing a rifle. Johnson previously 

told Swanstrom he believed Eric Leggett had flirted with him, which purported seductive 

behavior bothered Johnson. 

Spokane County Detective Randy Lesser reviewed Cornerstone security footage 

and saw on the videotape Alexander Johnson, fourteen minutes before Eric Leggett’s 
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5

injury, walking around the apartments with a pellet gun. Detective Lesser questioned 

Johnson several days after the shooting. Johnson denied shooting Leggett, but admitted 

to owning a pellet gun, which law enforcement seized. Johnson acknowledged to Lesser 

that he knew of Leggett’s homosexuality. 

PROCEDURE

The State of Washington charged Alexander Johnson with felony harassment, 

second degree assault, malicious harassment, and third degree malicious mischief. 

Most of the issues on appeal concern trial procedure. Trial commenced on June 

20, 2016. The first day of trial involved jury selection and a hearing to admit Alexander 

Johnson’s statements to law enforcement. The following exchange occurred, during voir 

dire, between the State’s attorney and prospective juror two:

[Prosecutor]: One of the things that [defense counsel] talked about 

was having evidence to prove something and believing in something. And 

I can’t remember whether it was juror No. 5—sorry, you would think I 

could remember ten minutes ago, but if—and I’ll ask juror No. 2. If I 

present evidence to you to prove a proposition and the evidence does prove 

that proposition, can you believe that?

JUROR NO. 2: Yes. I have faith that you are giving us the truth and 

that the evidence that you’re giving us is reliable, that the evidence that this 

party would give is reliable, so I would say if evidence is presented in 

court, I would believe it.

RP at 123-24. No one asked juror two any further questions on this same subject. 

Defense counsel exercised no challenges for cause and no peremptory challenges. Juror 

two served on the jury. 
No. 34710-9-III

State v. Johnson

6

On the second day of trial, Alexander Johnson was present when the court 

convened in the morning. The trial court recessed around 9:45 a.m. for five minutes, 

which recess Johnson used for a restroom break. Johnson did not return to the courtroom 

thereafter. For the next half hour, defense counsel phoned Johnson to inquire of his 

location. Law enforcement also searched for Johnson to no avail. The State informed the 

trial court of a desire to continue with the trial nonetheless. No witnesses had yet to 

testify. 

The trial court issued a bench warrant for Alexander Johnson’s arrest. The court 

then commented:

His absence does appear to be voluntary on the face but I suppose 

there could be an explanation that we’re otherwise unaware of. I’ll give 

him the benefit of the doubt but if he’s not here at 1:30 and we haven’t 

otherwise located him in an emergency setting . . . it’s inconvenient to our 

jurors but I don’t want to have to try this case again. We don’t need to 

declare a mistrial, which is my first concern. 

. . . . 

So again, Counsel, I apologize for the inconvenience, but I guess in 

fairness it’s not my fault. It’s not your fault, and [defense counsel], just so 

we have a clear record . . . I would be surprised if we locate [Johnson] in 

an emergency room or someplace else. I think he’s just trying to avoid 

being here for whatever reason . . . but that’s besides the point. If he shows 

up, and if he doesn’t, we’ll go forward without him at 1:30. 

RP at 229-231. Following this colloquy, the court recessed for the remainder of the 

morning and the noon hour. When the court reconvened in the afternoon, the trial court 

remarked: 
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[F]irst of all . . . in this case [Alexander Johnson] is not just late or 

delayed and whether he’s truly just not coming back, and we’d been 

waiting since thereabouts 10:00 this morning. It is now about 20 minutes to 

the hour, 20 minutes to 2:00 in the afternoon. Seems pretty clear to me 

[Johnson] isn’t going to return and during our recess we checked the local

hospitals. Might seem like an exercise in silliness but just to be sure that 

Mr. Johnson wasn’t there, and we also checked our jail roster in case in 

some fashion he happened to get picked up. No sign of Mr. Johnson 

anywhere. 

We also checked our clerk’s office to see if for some reason he 

might be there. There is no sign of him and I’m satisfied that I’ve laid 

down enough of a record, as has counsel, and foundation for us to go 

forward with the trial without [Johnson] here. 

RP at 237-38. Trial then proceeded during the afternoon with opening statements and 

testimony from some of the State’s witnesses. 

Cornerstone manager Melanie Kurtzhall testified she felt frightened when 

Alexander Johnson motioned his finger, as a gun, in her direction. Kurtzhall added that 

she knew that Johnson had already shot Eric Leggett, which knowledge enhanced her 

fear. 

The State questioned Eric Leggett about who he believed the “shooter” to be:

[DEPUTY PROSECUTOR]: And who was the person you thought 

responsible for your injuries?

[LEGGETT]: Alex Johnson.

[DEPUTY PROSECUTOR]: Okay. And that’s the same Alexander 

Johnson who you believe put the notes on your window?

[LEGGETT]: Yes, ma’am.

[DEPUTY PROSECUTOR]: Okay. Now, is it because of the 

incident from March 21 that you believed Mr. Johnson to be responsible for 

the April 12 incident? 

[LEGGETT]: That and the vantage of the – of their apartment, yes, 

to be able to shoot both the window and me in a different perspective. I 
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8

thought it was very likely and I directed the officers to go that direction 

with their investigation. 

RP at 356-57.

The trial court admitted the pellet gun confiscated from Alexander Johnson as an 

exhibit. Detective Randy Lesser identified the gun as a Crosman Fury NP pellet gun, and 

he testified that the gun looks like a rifle to the average person. A scope sits on the top of 

the gun’s barrel, and the scope allows the shooter to aim from afar. Detective Lesser 

averred that warning labels accompany the purchase of the pellet gun. Lesser researched 

the labels on the manufacturer’s Internet website. He read the label warning to the jury: 

“Warning: Not a toy. This air gun is recommended for adult use 

only. Misuse or careless use may cause serious injury or death. May be 

dangerous up to 600 yards.”

. . . Police and others may think it is a firearm.

. . . . 

If you’re firing a lead pellet, the velocity is up to 1,000 feet per 

second. If you’re firing an alloy pellet, the velocity is up to 1200 feet per 

second.

RP at 396-97. 

The third day of trial, June 22, 2016, began with more testimony from a State 

witness without Alexander Johnson present. After only minutes of testimony and with 

the jury excused, the trial court announced that law enforcement had surrounded a home 

occupied by Johnson and officers were attempting to garner Johnson’s cooperation in 

returning to the courthouse or seize his person and bring him to the courthouse. The 

court then recessed for the rest of the morning. 
No. 34710-9-III

State v. Johnson

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By early afternoon, June 22, law enforcement held Alexander Johnson in custody. 

At 1:40 p.m., the trial court reconvened, and the court commented: 

It’s about 20 minutes to 2:00 and it’s the 22nd of June, 2016, and we 

talked before the break about potential for [Alexander Johnson] to join us 

again since he’s been absent from the trial after we recessed after the jury 

was selected and he didn’t come back but now I understand [Johnson] is in 

custody. He is actually physically down here on the County property. He 

is not, as the jail staff just advised me, he is not portable in terms of his

appearance, so I guess I just wanted to, Counsel, run it by all of you about 

procedurally that, to be quite frank, I’ve never had a situation like this 

develop yet. I’m not sure if we should go forward right now. I mean I’ve 

got jurors waiting or whether we stop and get him over here and he—if he 

wants to be in the courtroom. I can’t have him in the courtroom looking the 

way I understand he looks based on what the jail has told me. 

. . . . 

He [Alexander Johnson] looks like he’s been in a scuffle. Let me 

put it that way, that’s what I understand. His pants are torn up. He’s got 

jail slippers. But then again, the concern I have is . . . arguably he’s already 

indicated his intentions to not be here. Maybe I need to get him over here 

for him to formally tell us on the record what he would like to do one way 

or another. If he doesn’t want to be here for the rest of the trial, maybe he 

can waive that appearance on the record.

RP at 437-38. Counsel and the trial court discussed questions surrounding Johnson’s 

return to the courtroom, the physical appearance of Johnson, and the admissibility of 

evidence of Johnson’s absconding. 

Law enforcement transported Alexander Johnson to the courtroom that afternoon. 

The trial judge and Johnson engaged in the following conversation after Johnson’s 

arrival:

THE COURT: Mr. Johnson, good afternoon.

[JOHNSON]: Good afternoon.
No. 34710-9-III

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THE COURT: Sir, I just wanted to verify you had a chance to speak 

with [defense counsel], correct?

[JOHNSON]: Yes, sir. 

THE COURT: And have you made a decision, sir, that you would 

like to remain in the courtroom for the balance of the trial?

[JOHNSON]: Yes, sir. 

THE COURT: Okay. And you feel that’s a decision you made after 

being fully advised by [defense counsel] regarding your rights? To remain 

in the trial? 

[JOHNSON]: Yes. 

THE COURT: Okay. And, sir, you do understand that [defense 

counsel] explained to you, you do have a right not to be present at trial if 

you want, as long as you make a knowing and voluntary waiver of that. 

But so I’m clear, sir, your determination is you would like to stay, you 

would like to participate in the trial and be here, correct?

[JOHNSON]: Correct.

RP at 446-47. 

With Alexander Johnson present, Detective Randy Lesser completed his 

testimony. Johnson called no witnesses and the trial recessed for the third day.

On the fourth day, counsel delivered their respective summations. Defense 

counsel commented: 

The State talked about the weapon [pellet gun] as a firearm. It does 

fire a projectile. The State talked about the foot-per-second velocity of 

whether it’s a lead pellet or an alloy pellet. We know that where the 

window was shot there are some of what [Eric Leggett] believes were the 

pellet but the detective says, you know, he can’t tell. Was it lead at 1,000 

feet per second or an alloy at 1200 feet [per] second . . . . 

The State also talked to you about that the weapon may be 

dangerous up to 600 yards. The distance here is shorter than 600. I don’t 

think anybody would argue that. The quote she had was that “it may be 

dangerous up to 600 yards.” Not deadly, may be. At one point it can 

possibly cause death under the circumstances in which it is used. But it 

doesn’t say what those circumstances were. 
No. 34710-9-III

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I think you have to look at the day that this assault allegedly took 

place. There are assumptions that the shot came from apartment 319, 

which is the residence of [Noelle Beck] and [Alexander Johnson]. There’s 

no indication at the time that the shot, and this was testimony, who was in 

the apartment.

RP at 540-41. The jury found Alexander Johnson guilty of all four crimes charged: 

felony harassment, second degree assault, malicious harassment, and third degree 

malicious mischief. 

At the sentencing hearing, the State mentioned that it had filed bail jumping 

charges against Alexander Johnson because of his absence from some of the trial. The 

State also commented that the sentencing court could consider Johnson’s absconding 

from the courtroom when sentencing. During the hearing, the court afforded Johnson an 

opportunity for allocution. The sentencing court did not ask Johnson to explain his 

absence, however. Johnson declined to render any statement. 

LAW AND ANALYSIS 

Juror Bias

Issue 1: Does Alexander Johnson show actual bias of juror two?

Answer 1: No. 

On appeal, Alexander Johnson first assigns error to the trial court’s failure to 

remove juror two from jury service and his trial counsel’s failure to object to the seating 

of juror two. Johnson contends that juror two’s response to a question during voir dire 

showed actual bias against him because the juror declared he or she would believe the 
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State’s evidence. We previously quoted the colloquy between the State’s attorney and 

juror two but repeat it here, because of the critical nature of the precise comments: 

[Prosecutor]: One of the things that [defense counsel] talked about 

was having evidence to prove something and believing in something. And 

I can’t remember whether it was juror No. 5—sorry, you would think I 

could remember ten minutes ago, but if—and I’ll ask juror No. 2. If I 

present evidence to you to prove a proposition and the evidence does prove 

that proposition, can you believe that?

JUROR NO. 2: Yes. I have faith that you are giving us the truth and 

that the evidence that you’re giving us is reliable, that the evidence that this 

party would give is reliable, so I would say if evidence is presented in 

court, I would believe it.

RP at 123-24. 

The State understandably asked juror two if the juror would accept a proposition if 

the State proved the proposition. The question indirectly sought to determine if the juror 

would acquit the defendant despite the State proving all of the elements of the crime. 

The question thereby searched for bias against the prosecution. The question did not 

query the juror as to whether he or she will accept all of the evidence presented by the 

State as the truth. The question did not ask if the juror will accept the evidence of the 

State regardless of whether Alexander Johnson presents conflicting evidence or 

regardless of whether Johnson presents no evidence. 

Juror two’s answer journeyed beyond the State’s question. In addition to the juror 

affirming that he or she would convict if the State proved the elements of the crime, the 

juror disclosed that he or she would accept all State’s evidence as the truth. This 
No. 34710-9-III

State v. Johnson

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disclosure would suggest bias in favor of the State, but the juror did not end his or her 

answer there. The juror also stated that she or he would deem all evidence presented by 

“this party” as reliable. RP at 124. The juror did not name to whom “this party” referred. 

Nevertheless, we suspect “this party” references Alexander Johnson, since the juror 

already mentioned that she or he would accept the evidence presented by the State as 

dependable, and the trial involved no other party beside Johnson. 

The unique response of juror two raises the question of whether a juror holds 

actual bias if the juror impliedly states that he or she will consider the State’s evidence as 

the truth if the defendant presents no countervailing evidence. The juror answer suggests 

that the juror will, contrary to constitutional principles, ignore a presumption of 

innocence and require the defendant to bear a burden of producing evidence in order to 

acquit himself rather than demanding that the State prove its case beyond a reasonable 

doubt. Neither party addresses this nuance in his or its briefing. 

Alexander Johnson contends that juror two’s statement reveals actual bias. The 

Sixth and Fourteenth Amendments to the United States Constitution, as well as article I, 

section 22 of the Washington Constitution, guarantee a criminal defendant the right to 

trial by an impartial jury. Taylor v. Louisiana, 419 U.S. 522, 526, 95 S. Ct. 692, 42 L.

Ed. 2d 690 (1975); State v. Davis, 175 Wn.2d 287, 312, 290 P.3d 43 (2012). The right to 

trial by jury means a trial by an unbiased and unprejudiced jury. State v. Stackhouse, 90 

Wn. App. 344, 350, 957 P.2d 218 (1998). Even one biased juror denies the accused a 
No. 34710-9-III

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constitutional right to an impartial jury. State v. Irby, 187 Wn. App. 183, 192-93, 347 

P.3d 1103 (2015), review denied, 184 Wn.2d 1036, 379 P.3d 953 (2016). If the potential 

juror demonstrates actual bias, the trial court must excuse the juror for cause. State v. 

Fire, 100 Wn. App. 722, 726, 998 P.2d 362 (2000), reversed on other grounds by 145 

Wn.2d 152, 34 P.3d 1218 (2001). 

Two Washington statutes address juror bias. RCW 4.44.170(2) defines actual 

bias: 

For the existence of a state of mind on the part of the juror in 

reference to the action, or to either party, which satisfies the court that the 

challenged person cannot try the issue impartially and without prejudice to 

the substantial rights of the party challenging, and which is known in this 

code as actual bias.

RCW 4.44.190 reads: 

A challenge for actual bias may be taken for the cause mentioned in 

RCW 4.44.170(2). But on the trial of such challenge, although it should 

appear that the juror challenged has formed or expressed an opinion upon 

what he or she may have heard or read, such opinion shall not of itself be 

sufficient to sustain the challenge, but the court must be satisfied, from all 

the circumstances, that the juror cannot disregard such opinion and try the 

issue impartially.

Under the Washington statutes, even if a juror has a preconceived idea, such 

opinion shall not disqualify the juror unless the court is satisfied, from all the 

circumstances, that the juror in reference to the action or to either party cannot disregard 

such opinion and try issues impartially. State v. Lawler, 194 Wn. App. 275, 281, 374 

P.3d 278, review denied, 186 Wn.2d 1020, 393 P.3d 1027 (2016). Stated differently, the 
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juror will be excused for cause if his or her views would prevent or substantially impair 

the performance of his or her duties as a juror in accordance with his or her instructions 

and his or her oath. State v. Hughes, 106 Wn.2d 176, 181, 721 P.2d 902 (1986). 

“Actual bias” must be established by proof. Brady v. Fibreboard Corp., 71 Wn. 

App. 280, 283, 857 P.2d 1094 (1993). A defendant must prove actual bias. State v.

Noltie, 116 Wn.2d 831, 838, 809 P.2d 190 (1991). A defendant must show more than a 

mere possibility that the juror was prejudiced to successfully challenge the trial court’s 

decision on appeal. State v. Noltie, 116 Wn.2d at 840; State v. Grenning, 142 Wn. App. 

518, 540, 174 P.3d 706 (2008), aff’d, 169 Wn.2d 47, 234 P.3d 169 (2010). A juror’s 

“equivocal answers alone” do not justify removal for cause. State v. Noltie, 116 Wn.2d at 

839. The appropriate question is “whether a juror with preconceived ideas can set them 

aside” and decide the case on an impartial basis. State v. Noltie, 116 Wn.2d at 839. 

Many Washington decisions address whether the trial court should have excused a 

venire person for actual bias. We mention three of the decisions where a court answered 

the question in the affirmative: State v. Irby, 187 Wn. App. at 192 (2015); State v. 

Gonzales, 111 Wn. App. 276, 45 P.3d 205 (2002), and State v. Fire, 100 Wn. App. 722. 

In State v. Irby, the potential juror in a murder prosecution remarked that she 

might favor the prosecution because of her work in Child Protective Services. The 

prosecutor then asked, “[w]ould that impact your ability to be a fair and impartial juror? 

Do you think you could listen to both sides, listen to the whole story so to speak?” State 
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v. Irby, 187 Wn. App. at 190. The potential juror responded, “I would like to say he is 

guilty.” State v. Irby, 187 Wn. App. at 190. The court sat the juror absent objection, and 

this court found manifest constitutional error requiring a reversal of all convictions. 

In State v. Gonzales, 111 Wn. App. 276 (2002), the juror stated she, based on her 

upbringing, deemed law enforcement officers honest and straightforward. According to 

the juror, she would believe a law enforcement officer would tell the truth unless proven 

otherwise and would encounter difficulty deciding against the testimony of an officer. 

When told that the court might instruct her to presume the defendant as innocent, the 

juror responded that she did not believe she could follow this presumption. 

In State v. Fire, 100 Wn. App. 722 (2000), the challenged juror stated, “‘I 

consider him [defendant charged with child molestation] a baby raper, and it should just 

be severely punished.’” State v. Fire, 100 Wn. App. at 728. The juror added: “I’m very 

opinionated when it comes to this kind of crime.” State v. Fire, 100 Wn. App. at 728. 

The potential juror, who served on the panel, also admitted that his strong feelings about 

this kind of case could affect his determination of guilt or innocence, in light of his belief 

in the innocence of children and the relative lack of credibility of adults. 

With some reluctance, we hold that Alexander Johnson fails to show actual bias in 

juror two. Because juror two’s answer to the prosecution’s question suggests the juror 

might not challenge the State’s evidence if Johnson presented no evidence, we wish the 

juror would have been questioned further. Nevertheless, the juror, uneducated in the law,
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had not yet been instructed by the trial court as to the presumption of innocence or the 

State’s burden of proving the crime beyond a reasonable doubt. Most potential jurors at 

the outset of a trial trust that evidence presented will be truthful. Cross-examination of 

witnesses and argument of counsel dispel this notion. The voir dire question and answer 

tell us little about the mental state of the juror and whether he or she could be impartial to 

the parties and the nature of the charges. The record lacks a showing that juror two could 

not put aside any bias and fairly decide the case on the facts and the law. 

In short, Johnson has failed to carry his burden of showing prejudice. Johnson 

presents no decision directly on point. Juror two never stated she would believe officers’ 

testimony over other witness testimony. The juror never commented that the defendant 

bore a presumption of guilt. The juror never mentioned a predisposition about the nature 

of the charges. 

Issue 2: Did trial defense counsel perform ineffectively by failing to seek to 

remove juror two for cause? 

Answer 2: No. 

Alexander Johnson also claims his trial counsel was ineffective because he did not 

challenge juror number two for bias or for cause. Since we hold that Alexander Johnson 

shows no bias, we need not address this assignment of error. Johnson does not argue that 

trial counsel should have exercised a preemptory challenge to remove juror two. 
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Johnson Absence from Trial

Issue 3: Did the trial court err when failing to expressly ask Alexander Johnson, 

before sentencing, as to his reason for being absent from a portion of the trial?

Answer 3: No, since the trial court afforded Johnson an opportunity to allocate 

during sentencing. 

Alexander Johnson contends the trial court failed to protect Johnson’s 

constitutional right to be present at trial. Johnson assigns error to the trial court’s failure 

to inquire whether he voluntarily waived his constitutional right. We disagree because 

the trial court afforded Johnson an opportunity to explain his absence. 

An accused possesses a fundamental constitutional right to be present during trial. 

State v. Thomson, 123 Wn.2d 877, 880, 872 P.2d 1097 (1994). The right derives from 

Washington Constitution article I § 22, which provides: “the accused shall have the right 

to appear and defend in person, or by counsel . . . [and] to meet the witnesses against him 

face to face.” State v. Thomson, 123 Wn.2d at 880 (alterations in original). The right to 

be present accrues at every critical stage of the proceedings and includes trial testimony. 

State v. Irby, 170 Wn.2d 874, 880, 246 P.3d 796 (2011). 

The accused may waive the right to be present during trial. State v. Garza, 150 

Wn.2d 360, 367, 77 P.3d 347 (2003); State v. Thomson, 123 Wn.2d at 880. Any waiver 

must be voluntary and knowing. State v. Thomson, 123 Wn.2d at 880. Once trial has 

begun in the defendant’s presence, a subsequent voluntary absence operates as an implied 
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waiver, and the trial may continue without the defendant. State v. Garza, 150 Wn.2d at 

367. 

In line with constitutional principles and case law, CrR 3.4 reads: 

(a) When Necessary. The defendant shall be present at the 

arraignment, at every stage of the trial including the empaneling of the jury 

and the return of the verdict, and at the imposition of sentence, except as 

otherwise provided by these rules, or as excused or excluded by the court 

for good cause shown.

(b) Effect of Voluntary Absence. The defendant’s voluntary 

absence after the trial has commenced in his or her presence shall not 

prevent continuing the trial to and including the return of the verdict. A 

corporation may appear by its lawyer for all purposes. In prosecutions for 

offenses punishable by fine only, the court, with the written consent of the 

defendant, may permit arraignment, plea, trial and imposition of sentence in 

the defendant's absence.

(c) Defendant Not Present. If in any case the defendant is not 

present when his or her personal attendance is necessary, the court may 

order the clerk to issue a bench warrant for the defendant’s arrest, which 

may be served as a warrant of arrest in other cases.

When the accused disappears during trial, Washington Supreme Court precedent 

directs the trial court to engage in a three-step process: (1) inquire, in the defendant’s 

absence, of the circumstances of his or her disappearance, (2) render a preliminary 

finding of voluntariness, if justified, and (3), if and when the accused reappears, afford 

the defendant an adequate opportunity to explain his absence before imposing sentence. 

State v. Garza, 150 Wn.2d at 367 (2003). The third prong of the analysis provides an 

opportunity for the defendant to explain his or her disappearance and rebut the finding of 

voluntary absence before the proceedings have been completed. State v. Thurlby, 184 
No. 34710-9-III

State v. Johnson

20

Wn.2d 618, 630, 359 P.3d 793 (2015); State v. Thomson, 123 Wn.2d at 883. 

Nevertheless, the third prong does not shift the burden to the State to prove the voluntary 

nature of the absence. State v. Garza, 150 Wn.2d at 368. 

In performing the three-step analysis, the court indulges every reasonable 

presumption against waiver. State v. Garza, 150 Wn.2d at 367-68. This presumption 

may conflict with the concept of an implied waiver of the right to be present if the 

defendant voluntarily absents himself during trial. 

We review a trial court’s decision regarding a criminal defendant’s voluntary 

absence for abuse of discretion. State v. Garza, 150 Wn.2d at 365-66. Alexander 

Johnson attended the first day of trial. Johnson could not be found after a recess on the 

second day of trial. Defense counsel called several of Johnson’s known phone numbers 

to no avail. Following a deliberation on how to navigate the circumstances, including 

consideration of CrR 3.4 and State v. Thurlby, the trial court authorized a bench warrant 

for Johnson’s arrest. The trial court also commented that officers would search hospitals 

and emergency rooms in an effort to determine if Johnson had an explanation for his 

disappearance. The trial court waited an additional three hours for Alexander Johnson to 

return. The next day, June 22, law enforcement located Johnson and arrested him 

pursuant to his bench warrant. Upon his return, the trial court apprised Johnson of his 

right to be absent, and also requested Johnson remain respectful, which he agreed to do. 
No. 34710-9-III

State v. Johnson

21

During sentencing, defense counsel advised the trial court that the State recently 

charged Alexander Johnson with bail jumping. The State also informed the sentencing 

court that Johnson’s absence from trial constituted a sentencing factor. The court advised 

Johnson of his right to speak and afforded Johnson an opportunity to comment. Johnson 

declined the invitation. The State believes Johnson offered no explanation at this 

juncture at the behest of counsel and to prevent self-incrimination. 

The totality of the circumstances confirm that Alexander Johnson voluntarily 

waived his right to be present. Johnson informed counsel he was going to use the 

restroom, and without warning, left the courthouse. Johnson failed to respond to or 

answer any of the numbers he had provided to his attorney. The court waited hours for 

Johnson to return, calling local hospitals and jails, presuming his absence was 

involuntary. Law enforcement eventually found Johnson at a Spokane house. 

We prefer that the trial court specifically mention to the accused of the right to 

explain his absence, but we do not determine the specific mention to be constitutionally 

required under these circumstances. The court allowed Johnson an opportunity to speak 

on Johnson’s return to the court and during sentencing. He could have then complained 

about the continuation of his trial in his absence and presented a valid reason for the 

absence. His counsel could have also asked for a new trial if Johnson held a valid reason 

for his absence. 
No. 34710-9-III

State v. Johnson

22

In State v. Thomson, 123 Wn.2d 877 (1994), Christopher Thomson absented 

himself from his trial on delivery of cocaine. He never reappeared during the trial but 

presented himself at sentencing. The record does not show the trial court’s expressly 

offering Thomson the opportunity to speak about his absence. Nevertheless, Thomas 

apologized for his absence at trial without further explanation. The Washington Supreme 

Court affirmed the trial court’s ruling that Thomson’s disappearance was voluntary. 

We distinguish Alexander Johnson’s circumstances from the defendant’s situation 

in State v. Garza, 150 Wn.2d 360 (2003). Law enforcement arrested Benjamin Garza in 

Snohomish County while in route to his trial in King County. Garza allegedly told 

arresting officers that someone needed to alert King County of his absence, but no one 

contacted the King County superior court judge, who proceeded with trial without any 

real inquiry. The Supreme Court reversed Garza’s conviction. 

Because we conclude the trial court committed no error, we do not address the 

State’s argument that any error was harmless. 

Pellet Gun Manufacturer Warning

Issue 4: Whether defense trial counsel performed ineffectively when failing to 

object as hearsay to testimony of the pellet gun manufacturer’s warning? 

Answer 4: No. 

Alexander Johnson next asserts ineffective assistance of counsel in regards to his 

trial defense counsel’s failure to object to Detective Randy Lesser’s reading to the jury of 
No. 34710-9-III

State v. Johnson

23

the manufacturer’s warning on the pellet gun. Lesser found the warning on the pellet gun 

manufacturer’s website. The State concedes the reading of the warning constituted 

hearsay. The State argues that defense counsel did not object to use of the warning as 

part of trial strategy.

To establish ineffective assistance of counsel, a defendant must satisfy a two-part 

test: (1) that his or her counsel’s assistance was objectively unreasonable, and (2) that, as 

a result of counsel’s deficient assistance, he or she suffered prejudice. Strickland v. 

Washington, 466 U.S. 668, 690-92, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To 

demonstrate the first prong, deficient performance, a reviewing court adjudges the 

reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed 

as of the time of counsel’s conduct. Strickland v. Washington, 466 U.S. at 690. This 

court gives great deference to trial counsel’s performance and begins the analysis with a 

strong presumption counsel performed effectively. State v. West, 185 Wn. App. 625, 

638, 344 P.3d 1233 (2015). 

Alexander Johnson argues his trial counsel’s failure to object to testimony

prejudiced him. In general, trial strategy and tactics cannot form the basis of a finding of 

deficient performance. State v. Johnston, 143 Wn. App. 1, 16, 177 P.3d 1127 (2007). 

The decision of when or whether to object to trial testimony is a classic example of trial 

tactics. State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). Only in 

egregious circumstances, on testimony central to the State’s case, will the failure to 
No. 34710-9-III

State v. Johnson

24

object constitute incompetence of counsel justifying reversal. State v. Madison, 53 Wn. 

App. at 763. A criminal defendant can rebut the presumption of reasonable performance 

by demonstrating that no conceivable legitimate tactic explains counsel’s performance. 

In re Personal Restraint of Caldellis, 187 Wn.2d 127, 141, 385 P.3d 135 (2016); State v. 

Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). 

The State astutely emphasizes instances when defense trial counsel highlighted the 

manufacturer’s warning during counsel’s summation, such that the counsel incorporated 

the language of the warnings into part of the trial strategy. Defense counsel referenced 

the manufacturer’s warning to argue that the pellet gun was not deadly. Counsel also 

used information from the warning in an attempt to prove that law enforcement 

haphazardly investigated the Cornerstone Apartments the night of the shooting. 

Based on trial counsel’s remarks during closing, we conclude that the failure to 

object to the reading of the gun warning worked as a reasonable tactic. Therefore, we 

need not determine whether any failure to object prejudiced Alexander Johnson. 

Witness Testimony about Guilt

Issue 5: Did witness Melanie Kurtzhall or Eric Leggett deliver inadmissible 

opinion testimony of the guilt of Alexander Johnson? 

Answer 5: No. 
No. 34710-9-III

State v. Johnson

25

Alexander Johnson contends that Melanie Kurtzhall and Eric Leggett testified to 

opinions on Johnson’s guilt in violation of Johnson’s right to trial by jury. Johnson’s trial 

counsel did not object to the testimony. 

When the defendant asserts no objection during trial to the challenged evidence, 

an appellate court reviews for manifest constitutional error. RAP 2.5(a)(3); State v. 

Kirwin, 165 Wn.2d 818, 823, 203 P.3d 1044 (2009). A defendant must identify the error 

and demonstrate that the alleged improper opinion testimony resulted in actual prejudice

and had practical and identifiable consequences. State v. Kirkman, 159 Wn.2d 918, 926-

27, 155 P.3d 125 (2007). Appellate courts will not approve a party’s failure to object at 

trial that could identify error which the trial court might correct. State v. Kirkman, 159 

Wn.2d at 935. Failure to object deprives the trial court of this opportunity to prevent or 

cure the error. State v. Kirkman, 159 Wn.2d at 935. 

No witness may offer testimony in the form of an opinion regarding the guilt or 

veracity of the defendant because such testimony unfairly prejudices the defendant and 

invades the exclusive province of the jury. State v. King, 167 Wn.2d 324, 332, 219 P.3d 

642 (2009). Improper opinions on guilt usually involve an assertion pertaining directly to 

the defendant. City of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993). 

Testimony that does not directly comment on the defendant’s guilt or on the veracity of a 

witness and otherwise assists the jury as based on inferences from the evidence does not 

constitute improper opinion testimony. City of Seattle v. Heatley, 70 Wn. App. at 578. 
No. 34710-9-III

State v. Johnson

26

Testimony that is based on inferences from the evidence is not improper opinion 

testimony. City of Seattle v. Heatley, 70 Wn. App. at 578. The fact that an opinion 

supports a finding of guilt does not make the opinion improper. State v. Collins, 152 Wn. 

App. 429, 436, 216 P.3d 463 (2009).

Admission of witness opinion testimony on an ultimate fact, without objection, is 

not automatically reviewable as a “manifest” constitutional error. State v. Kirkman, 159 

Wn.2d at 936. An explicit or nearly explicit opinion on the defendant’s guilt can 

constitute manifest error. State v. Kirkman, 159 Wn.2d at 936. 

We first review Melanie Kurtzhall’s testimony. After the shooting, Alexander 

Johnson motioned his finger, as if shooting a gun, in Melanie Kurtzhall’s direction. 

During testimony, Kurtzhall stated she knew that Johnson shot Leggett with the pellet 

gun so she took Johnson’s motion as a direct threat that frightened her. 

As part of his trial defense, Alexander Johnson claimed that the State could not 

prove he fired the pellet gun. In turn, the State needed to prove beyond a reasonable 

doubt that Johnson fired the weapon. 

Alexander Johnson knew Melanie Kurtzhall as the manager of Cornerstone. 

Melanie Kurtzhall knew of the threatening messages to Eric Leggett, and after the 

shooting, assisted law enforcement with reviewing security camera footage. The jury 

could infer that Johnson knew that Kurtzhall assisted Leggett and law enforcement. 

Johnson’s threat toward Kurtzhall helped to establish that Johnson fired the pellet gun 
No. 34710-9-III

State v. Johnson

27

toward Leggett, because Johnson made a similar shooting motion toward someone who 

knew of the crime and assisted the victim and law enforcement. The jury could conclude 

that Leggett shot the pellet gun, because he later sought to intimidate a witness with 

simulated conduct. 

We question whether Melanie Kurtzhall needed to testify that she believed Leggett 

shot the pellet gun, but we do not consider admission of such testimony manifest 

constitutional error. Kurtzhall did not directly declare Alexander Johnson guilty. The 

jury would already have concluded that Kurtzhall considered Johnson the shooter without 

Kurtzhall declaring her belief. 

Alexander Johnson next challenges testimony of Eric Leggett that he considered 

Johnson to be the shooter. Leggett based this conclusion on the threatening notes on his 

window and Johnson’s vantage point from his window to Leggett’s apartment. 

We deem State v. Blake, 172 Wn. App. 515, 298 P.3d 769 (2012) helpful. On his 

appeal from a conviction for first degree murder, Jerome Blake argued, in part, that the 

trial court erroneously allowed testimony of two witnesses who identified him as the 

shooter without seeing him pull the trigger. Both witnesses testified to their conclusion 

based on directions from which a flash originated and Blake’s positioning. Eric Leggett 

based his testimony on similar physical evidence. 

Issue 6: Did trial counsel perform ineffectively by failing to object to opinion 

testimony of Melanie Kurtzhall or Eric Leggett?
No. 34710-9-III

State v. Johnson

28

Answer 6: No. 

Alexander Johnson also asserts ineffective assistance of counsel for the failure to 

object to Eric Leggett’s and Melanie Kurtzhall’s testimony. We disagree. 

We have already concluded the testimony to be proper. Even if objectionable, 

defense counsel may have tactically decided to not object as to not reemphasize the 

comment to the jury and because the jury would have already concluded that Kurtzhall 

and Leggett considered Johnson to be the shooter. The decision to object, or to refrain 

from objecting, to inadmissible testimony is a tactical decision not to highlight the 

evidence to the jury. State v. Kloepper, 179 Wn. App. 343, 355, 317 P.3d 1088 (2014). 

The lack of an objection generally does not merit a finding of ineffective assistance of 

counsel. State v. Kloepper, 179 Wn. App. at 355. Johnson fails to show that his counsel 

performed deficiently.

Johnson as Unauthorized Tenant

Issue 7: Did the trial court commit reversible error by allowing Melanie Kurtzhall 

to testify that Alexander Johnson was an unauthorized tenant?

Answer 7: No.

Finally, Alexander Johnson assigns error to the trial court’s overruling of his 

objection to Melanie Kurtzhall’s testimony regarding Johnson’s status at Cornerstone as 

an unauthorized guest. Johnson claims this inadmissible testimony painted him as a 
No. 34710-9-III

State v. Johnson

29

scofflaw and raised a forbidden inference that one who breaks the law on one occasion is 

likely to do it again on a different occasion. We agree. 

An appellate court reviews a trial court’s ruling on an objection for abuse of 

discretion. State v. Magers, 164 Wn.2d 174, 181, 189 P.3d 126 (2008). Evidence that 

tends to establish a party’s theory, or to qualify or disprove the testimony of an adversary, 

is always relevant and admissible. State v. Harris, 97 Wn. App. 865, 872, 989 P.2d 553 

(1999). 

Alexander Johnson’s authorization, or lack thereof, to be at Cornerstone lacked 

any relevance to the issues at trial. The State contends that Johnson’s application to 

reside at Cornerstone established how Melanie Kurtzhall, a key witness for the State, 

came to be familiar with Johnson. Nevertheless, Kurtzhall could have testified that 

Johnson applied to become a tenant and she became acquainted with Johnson during the 

application process, without Kurtzhall adding that the housing authority denied the 

application. Johnson being denied the application did not allow Kurtzhall to better 

identify Johnson or add to the evidence of guilt of Johnson. 

We consider the admission of Melanie Kurtzhall’s testimony of Alexander 

Johnson as being an unauthorized tenant as harmless error. Inadmissible evidence 

requires reversal only if the error within reasonable probability, materially affected the 

outcome. State v. Everybodytalksabout, 145 Wn.2d 456, 468-69, 39 P.3d 294 (2002). 

The error is harmless if the evidence is of minor significance compared to the overall 
No. 34710-9-III 

State v. Johnson 

evidence as a whole. State v. Everybodytalksabout, 145 Wn.2d at 469. 

The State did not emphasize testimony of Alexander Johnson being an 

unauthorized tenant. Overwhelming evidence, such as Johnson's motive, Johnson's 

ownership of the pellet gun, the angle of the shots establishing that the shots came from 

Johnson's apartment, and Johnson's open window, established guilt. 

CONCLUSION 

We affirm Alexander Johnson's harassment, second degree assault, malicious 

harassment, and third degree malicious mischief convictions. 

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: 

:fhci-t:lo0 ~ iddoway, J. ~ ' U 

?~,GPennell, A.CJ. 

30