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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, Respondent,

v. CLARENCE HERMAN WRIGHT, II Appellant. No. 72608-1-1 (Consolidated with No. 73300-1-1) DIVISION ONE

UNPUBLISHED FILED: April 18. 2016 

### Cox, J. - Following an attempted armed home invasion, a jury found 

### Clarence Wrightguilty of burglary in the firstdegree and two counts ofassault in the firstdegree. The trial court determined that Wright was a persistent offender and sentenced him to life imprisonmentwithout the possibility of parole. 

### On appeal, we conclude that the trial court did not abuse its discretion in 

### admitting evidence of Wright's recent participation in an uncharged attempted 

### robbery. We also rejectWright's claims that the State committed prejudicial misconduct and that the trial court erred in sentencing him as a persistent 

### offender. Wright's statement of additional grounds raises no meritorious issues. Accordingly, we affirm. 

### During the early morning hours of February 11, 2013, Jay Tillman was 

### sleeping on a couchin aTukwila apartment when he was awakenedby a knock

### No. 72608-1-1 (consolidated with No. 73300-1-l)/2

at the door. Jay1 got up to investigate and looked through the peep hole. 

### Believing the person he saw might be an upstairs neighbor, he opened the door slightly. The man outside, later identified as Clarence Wright, immediately thrust
a revolver through the opening. Terrified, Jay grabbed the gun and attempted to block the entrance. During the ensuing struggle, both men held on to the gun. Wright eventually pushed Jay back over a couch. As Jay fell, Wright fired the gun, striking him in the abdomen. Jay continued to hold on to the gun. Nathanial Tillman, Jay's 20-year-old son, was awakened by his mother's
screams and the sounds of gunfire. He came out of his bedroom and saw Jay 

### and Wright struggling withthe gun. As Nathanial attempted to help his father by placing Wright in a headlock, Wright shot him inthe thigh. 

### At some point, Jay managed to seize the gun from Wright and fired it, 

### striking Wright inthe shoulder. At this point, Wright stumbled back out of the apartment and disappeared into an apartment complex across the street. Wright did not say anything during the incident except "Why did you bite me" when Nathanial bit him inthe forehead. None ofthe apartment's occupants had ever met Wright. 

### Mary Tillman, Jay's wife, called 911. With the assistance of a K-9 unit, Tukwila police officers arrested Wright a short time later. Officers recovered

Where necessary for clarity, we use the witnesses' first names.
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### No. 72608-1-1 (consolidated with No. 73300-1-l)/3 Wright's gun fromthe Tillmans' apartment and the gloves that he abandoned during the pursuit. 

### The State charged Wright with one count of burglary inthe firstdegree, two counts ofassault inthe first degree, and one count of unlawful possession of
a firearm in the first degree. The trial court severed the firearm count for trial. Shortly afterWright's arrest, Tukwila investigators learned that he was the subject of a California arrest warrantfor the attempted robbery of a cell phone store in San Rafael on January 19, 2013. During the incident, an armed man entered the store, pointed a handgun at the employees, and demanded money. The suspect fired the gun once inthe general direction ofthe employees before running offwithout obtaining any money. On February 12, 2013, City of San Rafael Police Department Detective 

### Todd Berringer interviewed Wright at the KingCounty Jail. After being advised of 

### his Miranda2 rights, Wright admitted that he had committed the attempted robbery inSan Rafael. He explained that he was trying to get money to visit his daughter inSeattle and to buy her some shoes. Wright said he fired the gun to stop the store employees from fleeing and acknowledged that the gun he used
was the same gun he used during the Tukwila incident. 

### During an interview with Tukwila police officers, Wright said he had been drinking gin all afternoon before going to the Tillmans' apartment. Wright claimed that he did not know why he was at the apartment and could recall onlythat "he
2Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L Ed. 2d 694 (1966).No. 72608-1-1 (consolidated with No. 73300-1-l)/4 

### was put in a headlock, and that somebody was punching him and somebody shot him." Notwithstanding his contrary statement to Detective Todd Berringer, he 

### denied having a gun during the Tukwila incident. He also denied having gloves. At trial, Wright raised a defense of diminished capacity. Dr. Craig Beaver,


### a clinical psychologist, conducted a forensic neurological evaluation ofWright. Dr. Beaver diagnosed Wrightwith dementia secondary to a traumatic braininjury that he suffered inSeptember2012. Dr. Beaver concluded that as a result of 

### braindamage and intoxication, Wright lacked the capacity toform criminal intent during the Tillman incident. 

### In rebuttal, the State presented the testimony ofDr. Ray Hendrickson, a 

### forensic psychologist. Dr. Hendrickson disputedDr. Beaver'stestimony that Wright's dementiaaffected his capacity toform intent and thatWright's intoxication was sufficiently severe as to interfere with hisability tofunction. In Dr. Hendrickson's opinion, Wright's actionsduring the homeinvasion, including 

### his flight afterbeing shot andhis attempts tohide from thepolice, reflected deliberate, goal-driven behaviorrather than a lack ofcapacitytoform the requisite intent. 

### The State also introduced two recordings oftelephone calls that Wright 

### madeinjail while awaiting trial. In one oftherecordings, Wrighttold awoman thatfuture callsmight be monitored so that"ifIsound a little offjust go along with theflow." In anotherrecording, Wright indicated he was planning to assist in his defense by "playing Iam crazy."No. 72608-1-1 (consolidated with No. 73300-1-l)/5
Thejury found Wright guilty as charged. The trial court found Wright was
a persistent offender and sentenced him to life imprisonment without the possibility of parole. ER 404(b) 

### Over defense objections, the trial court ruled thatthe State could present evidence ofthe attempted robbery in California. The court concluded that the 

### evidence was admissible as res gestae, common scheme or plan, and intent 

### under ER 404(b) and that the probative value outweighed the potential forunfair 

### prejudice. Wright argues that the evidencefailed to satisfy the requirements of ER 404(b) and merely constituted inadmissible evidence of a propensity to
commit crimes. 

### Under ER404(b), evidence ofprior misconduct is not admissible "to show 

### thatit islikely the defendantcommitted the allegedcrime, acted in conformity 

### with the priorbad acts whencommitting the crime, or had a propensitytocommit the crime."3 Such evidence "may, however, be admissible forother purposes, 

### such as proofofmotive, opportunity, intent, preparation, plan, knowledge, 

### identity, or absence ofmistake oraccident."4 Before admitting evidence ofprior misconduct under ER404(b), thetrial court must(1) find by a preponderance of the evidence thatthe misconduct occurred; (2) identify the purpose for admitting 

### theevidence; (3) determine therelevance oftheevidence toprove anelementof

3State v. Wilson. 144 Wn. App. 166, 175, 181 P.3d 887 (2008). 4ER 404(b).

### No. 72608-1-1 (consolidated with No. 73300-1-l)/6


### the charged crime; and (4) weigh the probative value against its prejudicial effect.5 We review the trial court's decision to admit or exclude evidence under ER 404(b) for an abuse of discretion.6 Prior misconduct may be admissible as res gestae evidence "[t]ocomplete the story ofthe crime on trial by proving its immediate context of happenings
near in time and place."7 Ifanother offense constitutes a "'link in the chain' of an unbroken sequence ofevents surrounding the charged offense, evidence ofthat offense is admissible 'in orderthat a complete picture be depicted for thejury.'"8 Wright asserts that the California attempted robbery was not res gestae evidence because it did not occur within the "immediate context" ofthe Tukwila offense. But contrary to Wright's assertion, the California incident did not occur two months before the current charge, but rather about three weeks. Wright told Det. Berringer that he tried to rob the cell phone store on January 18, 2013, to obtain money to visit his daughter in Seattle and buy her presents. Underthe circumstances, the unsuccessful attempted robbery in San Rafael provided specific contextual information aboutWright's presence inthe Seattle area and 

### his otherwise unexplained armed invasion ofthe Tillmans' apartment shortly after 

### arriving in the area. The trial court did not abuse its discretion in admitting the California robbery as res gestae evidence.

5 State v. Gresham, 173 Wn.2d 405, 421, 269 P.3d 207 (2012). 6 State v. Fisher. 165 Wn.2d 727, 745, 202 P.3d 937 (2009). 7State v. Powell. 126 Wn.2d 244, 263, 893 P.2d 615 (1995) (citations omitted). 8State v. Brown. 132 Wn.2d 529, 571, 940 P.2d 546 (1997) (quoting State v. Tharp. 96 Wn.2d 591, 594, 637 P.2d 961 (1981)).No. 72608-1-1 (consolidated with No. 73300-1-l)/7
We also agree that the trial court did not abuse its discretion in admitting the San Rafael incident as evidence of a common scheme or plan. In orderto constitute a common scheme or plan, the evidence ofthe prior misconduct and 

### the charged crime "must demonstrate not merely similarity in results, but such
occurrence of common features that the various acts are naturally to be 

### explained as caused by a general plan of which the charged crime and the prior misconduct are the individual manifestations."9 

### Wright barged into both the cell phone store and the Tukwilaapartment brandishing a revolver. In both incidents, he was wearing similar clothing, 

### including a hoodie and cap intended to conceal his identity. He also wore a 

### glove on the hand that held the firearm. Wright expressly demanded money in the San Rafael incident, but said nothing about his intentions during the Tukwila 

### incident. But the occupants of the apartment physically confronted Wright almost 

### immediately, requiring him to struggle overpossession of the gun. In both incidents, Wright fired the revolver shortly after entry. 

### Despite some differences, the similarities were sufficient to support a reasonable determination that the incidents were "individual manifestations" of 

### the same plan.10 Evidence admitted to show a common scheme orplan need not be "distinct from common means of committing the charged crime."11

9State v. DeVincentis, 150Wn.2d 11, 19, 74 P.3d 119 (2003) (quoting Statev, Lough, 125 Wn.2d 847, 860, 889 P.2d 487 (1995)). 10 Gresham, 173 Wn.2d at 423. 11 Id.
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### No. 72608-1-1 (consolidated with No. 73300-1-1)78 Finally, even ifadmission ofthe attempted robbery was erroneous for purposes of res gestae or common scheme or plan, the trial court did not abuse 

### its discretion in admitting the evidence to prove intent and to rebutWright's diminished capacity defense. "When the State offers evidence of prior acts to demonstrate intent, there must be a logical theory, other than propensity. demonstrating how the prior acts connect to the intent required to commit the charged offense."12 Wright admitted that he had attempted to rob the cell phone store and that he intentionally fired the gun to stop the employees from fleeing. Wright also 

### explained the specific purpose for obtaining money. Evidence ofWright's actions less than one month before the current offense tended to rebut his claim that a 

### September 2012 head injury rendered him incapable offorming criminal intent.13 PROSECUTORIAL MISCONDUCT 

### Wright contends that prosecutorial misconduct during the cross examination of Dr. Beaver, the defense's expert witness on diminished capacity, 

### violated his rightto a fairtrial. He argues that the deputy prosecutors improperly asked Dr. BeaverwhetherWrightwas "lying" and expressed personal opinions aboutWright's credibility and his guilt.

12 State v. Wade, 98 Wn. App. 328, 334, 989 P.2d 576 (1999) (emphasis inoriginal). 13 See State v. Medrano, 80 Wn. App. 108, 113, 906 P.2d 982 (1995) (as "a matter 

### oflogical probability," evidence of a prior criminal offenserequiring intent makes it "less 

### likely that [thedefendant] could notform the requisite intentfor the currentburglary").

-8-No. 72608-1-1 (consolidated with No. 73300-1-1)79 During cross examination about the thoroughness of his review ofWright's inconsistent statements about the Tillman incident, Dr. Beaver acknowledged that he "could have asked [Wright] more questions," but thought that "things had been covered." The deputy prosecutor then continued: Q. Okay. Even though it's patently obvious from the statement that the defendant gave to these separate statements [sic], that he is lying, he says he doesn't have a gun, he does have a gun, he was hiding, he wasn't hiding, you had all that information when you were interviewing him? A. I'm sorry, you said he was just patently lying? Q. Sometimes he remembers what happens, sometimes he doesn't. When he does remember a fact, he has a different 

### interpretation for what occurred, or itdidn'toccur.[14] Defense counsel did not object to the reference to "lying," but later objected on 

### the basis that the deputy prosecutorwas "badgering" the witness. The trial court overruled the objection. 

### On the following day, a different deputy prosecutorquestioned Dr. 

### Beaver's expertise to conduct a 1987 workshop on neurological deficits. When Dr. Beaveracknowledged that his presentation also encompassed the effects of 

### drugs and alcohol, the deputy prosecutor commented, "Yeah, Iwould like to see 

### your class list onthat."15 The trial courtoverruled defense counsel's objection that the remark was an improper comment on the evidence.

14 Report ofProceedings (Sept. 8, 2014) at 139 (emphasis added). 15 Report ofProceedings (Sept. 9, 2014) at 17.
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When the deputy prosecutor asked about similarities between the charged crime and the San Rafael incident, Dr. Beaver stated, "I don't see things that indicate that he was trying to rob someone."16 The deputy prosecutor replied, 

### "Okay. So that's a difference of opinion thatthe two of us have, we can work with that."17 Defense counsel did not object. 

### Finally, Wright contends that the deputy prosecutorviolated a pre-trial 

### ruling by referring to Wright's 2002 conviction forunlawful possession of a
firearm. 

### Atthe conclusion of Dr. Beaver's testimony, Wright moved for a mistrial. 

### Afterreviewing the transcripts of the alleged misconduct, the trial court denied 

### the motion. Wright renewed his challenge to the alleged misconductin a motion for a new trial, which the trial court also denied. 

### Adefendant claiming prosecutorial misconduct bears the burden of 

### establishing that thechallenged conductwas both improperand prejudicial.18 When the defendant objects to alleged misconduct or moves for a mistrial, an 

### appellate court accords thetrial courtdeference because it isin the bestposition to assess potential prejudice.19 Consequently, we review thetrial court's rulings 

### onalleged misconductfor an abuse ofdiscretion andwill overturn the court's decisions only ifthe defendant demonstrates a substantial likelihood that the

16 id at 30. 17Jd, 18 State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003). 19 State v. Stenson. 132 Wn.2d 668, 719, 940 P.2d 1239 (1997).
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### No. 72608-1-1 (consolidated with No. 73300-1-1)711 

### alleged misconduct affected the verdict.20 We assess alleged misconduct in the context ofthe total argument, the evidence addressed, the issues inthe case, 

### and thejury instructions.21 On appeal, Wright devotes almost no discussion to the context ofthe 

### challenged comments. After Dr. Beaver asked whetherthe deputy prosecutor
was saying that Wright was "patently lying,"the deputy prosecutor immediately clarified the context: Q. Sometimes he remembers what happens, sometimes he doesn't. When he does remember a fact, he has a different 

### interpretation forwhat occurred, or it didn't occur.[22] The deputy prosecutor then continued to question Dr. Beaver about the inconsistent interviews Wright gave after his arrest. The deputy prosecutor's references to a "class list" and a difference of opinion were irrelevant and snide. But contrary to Wright's assertions, the comments did not clearly communicate a comment on the evidence or a personal opinion on credibility. Moreover, in each instance, the deputy prosecutor did not pursue or repeat the comments and immediately moved on to proper questions. 

### Similarly, after brieflymentioning the firearm conviction, the deputy prosecutor questioned Dr. Beaver about the specific facts underlying Wright's 2002 robbery convictions.

20 See State v. Lindsay, 180 Wn.2d 423, 430-31, 326 P.3d 125 (2014): see also State v. Rodriguez. 146 Wn.2d 260, 269-70, 45 P.3d 541 (2002). 21 State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995). 22 Report ofProceedings (Sept. 8, 2014) at 139.

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### Insummary, each ofthe alleged instances ofmisconduct involved a single, isolated reference. Several ofthe comments were too attenuated to clearly convey an improper personal opinion. The deputy prosecutor did not repeat the alleged improper remarks and immediately moved on to proper cross examination. The trial court also instructed thejury that "the lawyers' statements

are not evidence." 

### Viewed incontext, the challenged comments involved an extremely minor 

### portion of an extensive cross examination that thoroughly challenged Dr. 

### Beaver's opinion aboutWright's capacity toform criminal intent. Underthe circumstances, there is no reasonable likelihood that any improper comments 

### affected thejury's assessment ofWright's diminished capacity defense or the
outcome ofthe trial. PERSISTENT OFFENDER ACCOUNTABILITYACT (POAA) 

### Wright contends that the POAA's classification ofpriorconvictions as 

### sentencing factors ratherthan additional elements ofthecrime violates his right to equalprotection. He argues that there is norational basisfor requiring the State toprove priorconvictions to ajurywhen they are an elementofthecrime, 

### butallowjudgestofind somepriorconvictions by a preponderance ofthe evidence as "sentencing factors." 

### This courtrejected anessentially identical argument in Statev. Langstead: We conclude recidivists whose conduct is inherently 

### culpable enough to incur a felony sanction are, as a group, 

### rationally distinguishablefrom persons whose conduct is

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felonious only ifpreceded by a prior conviction for the same or a similar offense. We reject Langstead's equal protection 

### challenge.[23] Wright has not addressed Langstead or presented any argument warranting reconsideration of our analysis. We therefore reject Wright's equal protection challenge. 

### Wright also contends that the State had to prove beyond a reasonable 

### doubt his prior strike offenses to a jury before the court could sentence him as a 

### persistent offender. Oursupreme court rejected this contention in State v. Witherspoon: 

### Accordingly, it is settled lawin this state that the procedures of the POAA do not violate federal or state due process. Neither the federal nor state constitution requires that previous strike 

### offenses be proved to ajury. Furthermore, the proper standard 

### of proofforpriorconvictions is by a preponderance of the evidence.1241 

### Witherspoon is binding on this court.25 STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW 

### In his statement of additional grounds forreview, Wrightasserts (1) the 

### Statedelayed providing certain unidentified evidence to thedefense; (2) thecourt 

### reporterobservedjurors speaking to a Statewitness; (3) he wascalled a liar numerous times, and (4) he was notallowed to take his"legal paperwork" when he was transported to California.

23 155Wn. App. 448, 456-57, 228 P.3d 799 (2010). 24180 Wn.2d 875, 893, 329 P.3d 888 (2014). 25 See State v. Gore, 101 Wn.2d 481, 487, 681 P.2d 227 (1984).
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Because several ofWright's allegations involve matters that are outside the record, this court cannot address them on direct appeal.26 The remaining allegations are too conclusory to permitjudicial review.27 We affirm thejudgment and sentence. 

# &MJWE CONCU 

# Se-J^, KJ

26 State v. McFarland. 127 Wn.2d 322, 337-38, 899 P.2d 1251 (1995). 

### 27 See RAP 10.10(c) (appellate court"will not consider a [defendant/appellant's] statement of additional grounds for reviewifitdoes notinform the court of the nature and occurrence of [the] alleged errors").

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