OURT OF STATE OF WASIII

HIT DO W N 

### 2018JUN H 10: 30

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON,

Respondent, V. MICHAEL WILLIAM BIENHOFF,

Defendant, KARL EMERSON PIERCE,AND EACH OF THEM, ) ) No.74363-5-1 ) ) DIVISION ONE ) ) UNPUBLISHED OPINION

FILED:June 11,2018 Appellant.
TRICKEY, J. — Karl Pierce and Michael Bienhoff claimed that they were involved in a marijuana deal with Precious Reed and Demetrious Bibb. During the transaction, an altercation occurred between Bienhoff and Reed. A handgun discharged and killed Reed. The State ultimately charged codefendants Pierce and Bienhoff with first degree felony murder predicated on robbery in the first degree, with a deadly weapon allegation. The State's theory at trial was that Pierce and Bienhoff intended to rob Reed,ratherthan to sell him marijuana. The jury convicted Pierce

as charged. He appeals. Because the prosecutor committed misconduct during voir dire that prejudiced Pierce, we reverse Pierce's conviction and remand for a new trial.No.74363-5-1 /2
FACTS Reed and Bienhoff had known each other for several years. In February 2012, Reed asked Bienhoff to sell him a couple of pounds of marijuana. On February 20, 2012, Bienhoff told Reed that he would sell Reed two pounds of marijuana for $2,200 per pound. Reed replied that he still wanted the marijuana butneeded to raise money. Bienhoffpicked up two and a halfpounds ofmarijuana from his supplierfor $1,800 per pound. Bienhoff planned to meet Reed near Green Lake,an area of North Seattle, to conduct the transaction. Bienhoff went to Ramon Lyons's home in the Bitter Lake community. Lyons helped Bienhoff arrange for Scott Barnes to provide a ride. When Barnes arrived at Lyons's home, Lyons was on the front porch cleaning a revolver. After meeting with Barnes, Bienhoff asked Lyons to accompany them as "insurance."' Lyons agreed, and the group went to pick up Lyons's friend, Pierce. Bienhoff and Pierce had not previously met. Bienhoff separated the two pounds of marijuana he planned to sell to Reed and the extra half pound into two backpacks.2 Barnesdrovethe group back to Lyons's house. Lyonstestified thatBienhoff said that he did notfeel safe and asked to borrow a gun. Lyons and Pierce got out ofthe car,and Lyonsentered the house. Lyons retrieved two handguns. One was

a gray or chrome colored .45 caliber semiautomatic pistol. The other was the

' Report of Proceedings (RP)(Oct. 27,2015)at 3435. 2 Barnes testified that the group went directly from Pierce's home to Green Lake without making any stops. 2No.74363-5-1/ 3

revolver Lyons had been cleaning earlier. After Lyons and Pierce returned to the car, Barnes drove the group toward Green Lake. While en route, Lyons gave the revolver to Bienhoff.3 When the group stopped at a gas station, Bienhoff and Barnes left the car. While alone in the car, Lyons warned Pierce to watch Bienhoff,and gave him the semiautomatic pisto1.4 After leaving the gas station, Barnes drove to Green Lake. He parked the

car nearthe lake in an upper parking lot ofWoodland Park. Bienhoffgot out ofthe

car. He hid the backpack containing the two pounds of marijuana in a bush. After asking Barnes to move the car awayfrom the lot, Bienhoffasked Lyons to stay out of sight but within earshot ofwhere Bienhoff was going to meet Reed. Lyons told Pierce to "back up"Bienhoffto ensure that he was not robbed.5 Reed arrived driving a gray van. A white Cadillac followed Reed's van into the parking lot. Reed parked,and the white Cadillac stopped further down the lot. Pierce was outside ofBarnes's car. Hefound a vantage pointfrom which he could

see Reed's van and the white Cadillac. Pierce observed that Reed and the driver ofthe Cadillac were both black males. Reed and the driver of the Cadillac, later identified as Bibb, exited their vehicles and greeted Bienhoff. Bibb had agreed to pay half the cost of the marijuana, and thought the deal was $2,000 for two pounds. Bibb planned to

3 At trial, Bienhoff denied asking Lyons for a weapon and that he knew that Lyons and Pierce were armed. Pierce testified that he did not see any other members ofthe group carrying guns,and that he did notthink Bienhoffwas armed. But Barnes testified that he observed Lyons handing the revolver to Bienhoff and that he noticed that Pierce was armed. 4 Lyons testified that he gave the .45 caliber handgun to Pierce while the entire group was in the car and driving toward Green Lake from the gas station. 5 RP (Oct 22,2015)at 3250. 3No.74363-5-1 /4

"front"the marijuana,or pay partofthe purchase price atthe transaction,sell some ofthe purchased marijuana,and then paythesellerthe outstanding balance.6 Bibb denied having a gun thatday,and did not think that Reed was armed. Bienhoff recovered the marijuana and Bibb returned to the Cadillac. Reed got into his van and sat in the driver's seat. Bienhoffalso entered the van and sat in the front passenger's seat. Bienhoff showed Reed the marijuana. Reed told Bienhoffthat he did not have thefull amountof money to buy the marijuana. Reed asked Bienhoffto frontthe marijuana,but Bienhoffdeclined. Bienhoff began to exit Reed's van. He saw Reed reaching to his leftfor the butt ofa handgun. Reed and Bienhoffwrestled for the handgun. The handgun,a revolver with a 10-inch barrel, discharged into Reed's shoulder. The bullet travelled upwards into Reed's brain and caused his death. The shottemporarily deafened Bienhoff. He grabbed the marijuana,exited Reed's van,and ran to Barnes's car. While running, Bienhoff saw Bibb standing between Reed's van and the Cadillac. He did not notice whether Bibb was armed

or had fired any shots. Pierce had seen Reed'svan startto rock and assumed therewasa struggle. Pierce moved closerto the van. Bienhoff ran past Pierce,who heard Bienhoffsay that Reed had attempted to rob him. Pierce saw a black male come around the front of Reed's van,and heard a boom. Pierce thought the man was shooting at him. He ran toward Barnes's car without drawing his gun. Lyons had initially moved toward the lake but had begun to head back to

6 RP (Oct. 1,2015)at 1678. 4No.74363-5-1 /5

the upper'parking lot. On his way, he heard gunfire and "hit the ground."7 Once he got up,he saw Pierce running toward the parking lot withouta gun in his hand. Lyons heard multiple gunshots. He ran back toward Barnes's car,and heard tires squeal after the gunfire ended. Barnes remained in his car. Barnes heard five gunshots in rapid succession and thought he could hear them striking metal. Bibb testified that he remained in the Cadillac. He observed Reed's van while Reed and Bienhoff were inside. Bibb did not hear raised voices, see a struggle,or hear a gunshot. Bibb saw another individual, who he later described as 5feet 8 inches tall

or 5 feet 9 inches tall, run between the Cadillac and the van, turn towards Bibb, and began firing at him with a dark-colored gun. Bibb ducked down,put his car in gear,and rapidly leftthe parking lot. Bibb heard and felt bullets strike the Cadillac. He laterfound bullet holes in its side. There were two eyewitnesses who observed the incident. The first, Earl Cadaret, watched through the kitchen window of his recreational vehicle, which

was parked in the same lot as Reed's van and Bibb's Cadillac. Cadaret observed two black males, one of whom was substantially taller than the other, walking toward the van and the Cadillac. Cadaret saw the taller man enter the driver's side ofthe Cadillac. He later noticed the same man standing outside ofthe Cadillac looking atthe van,and then

saw him in front of the van with his arm extended. Cadaret heard several loud

7 RP (Oct. 15,2015)at 2566. 5No. 74363-5-1 /6

noises that may have been "bangs,pops,or rattle[s]."9 Cadaretsaw the Cadillacdrive away,and did notsee anyone shooting at it. He watched the shorter man fall out of the van. After the Cadillac was gone, Cadaret went to the man on the ground and called 911. When the police interviewed him later, Cadaret stated that the man in the Cadillac looked like he had a gun and had shot the man in the other car. The second eyewitness was Mark Howard. He was sitting in his truck, which was in the parking lot where the incident occurred. He saw a minivan and light-colored sedan park in the lot. He viewed two black males and one white male standing in the lot before the white man retrieved a backpack from some bushes. Howard watched the two black males head toward the minivan and the sedan. Shortly thereafter, Howard heard "popping" sounds.9 He saw a man he later identified as Pierce running and holding a silver -colored automatic gun. Howard thought Pierce was shooting at the minivan and the sedan, although he did not see any muzzle flashes or discharged shell casings. Howard testified that he might have seen another armed man behind the shooter. Howard fled the parking lot in his truck. He returned later to give police a recorded statement after he saw a report ofthe incident on the news. Once Bienhoff,Pierce,Lyons,and Barneswere in Barnes's car,Pierce said that he thought the driver of the Cadillac had shot at them. Barnes testified that Pierce told the group that he saw Reed "slumped" in the van.10 Barnes also

8 RP (Sept.30,2015)at 1433. 9 RP (Sept. 30,2015)at 1531. '° RP (Oct. 12,2015)at 2138. 6No.74363-5-1 /7

testified that Pierce said that he had been "busting atthe caddy"and that he would dispose ofthe weapons." Barnestestified that Lyonssaid,"'Nobodysayanything,

or we're all screwed."12 Pierce testified that he put the gun Lyons had given him on the floor of Barnes's car. Lyons did not see any guns in Barnes's car after the incident. Bienhoff later gave the marijuana to someone he knew. Police officers found Reed face down on the ground next to his van. The van's doors were open. Reed had approximately $1,200 in cash on his person, and no gun was found at the scene. Several .45 caliber shell casings were found in the parking lot. A crime laboratory concluded that a .38 caliber gun and a .45 caliber gun had been discharged during the incident. While watching the news that night, Pierce heard that someone had been shot at Green Lake, and went into hiding for about a month. Bibb learned that Reed had died later that evening or early the next morning. When police interviewed Bibb the nextday,he gave them permission to confiscate the Cadillac. When Bibb was shown photomontages, he identified Bienhoff and tentatively identified Pierce as the person who had shot at him." The State charged Bienhoff and Pierce by amended information with murder in the first degree by reason of causing Reed's death while committing or attempting to committhe crime ofrobbery in thefirstdegree. The charge included

"RP (Oct. 12, 2015)at 2138. Pierce denied that he had disposed of or destroyed the gun or any cell phones linked to the incident. 12 RP (Oct. 12,2015)at 2138. 13 Bibb identified Pierce's photograph asthe one who "mostclosely resembled"the person that shot at him. 7No.74363-5-1/8

a deadly weapon allegation. The State also charged Lyons and Barnes as codefendants with Bienhoff and Pierce, but they pleaded guilty to lesser charges in exchange for their testimony at trial. At trial, the State's theory was that Bienhoff did not bring marijuana to the meeting with Reed,and intended to rob Reed of the purchase money. The State contended that Pierce was the second shooter. Bienhoff denied that the group discussed a robbery. Bienhoff testified that he only discussed guns with Pierce, Lyons,and Barnes to say that someone had shot at them. The jury convicted Pierce as charged,and he appeals.14 ANALYSIS Prosecutorial Misconduct During Voir Dire Pierce argues that the prosecutor committed misconduct during voir dire when he discussed the death penalty with potential jurors in this noncapital case. We conclude that the prosecutor committed misconduct by extensive questioning that elicited an improper discussion ofthe death penalty during voir dire.15 "The question ofthe sentence to be imposed by the court is never a proper issue for the jury's deliberation, except in capital cases." State v. Bowman, 57

14 Additional facts will be included as appropriate in the sections of analysis. 15 The State argues that Pierce cannot raise this issueforthe firsttime on appeal because he failed to object to the discussion ofthe death penalty below. Generally, challenges to the process of selecting a jury may not be raised for the first time on appeal because jury selection is a procedural matter, not a constitutional issue. State v. Elmore, 139 Wn.2d 250,277,985 P.2d 289(1999)(citing State v. Tharp, 42Wn.2d 494,501,256 P.2d 482(1953));State v. Gentry, 125Wn.2d 570,616,888 P.2d 1105 (1995)). But "[a]party may raise a claim of error which was not raised by the party in the trial court if another party on the same side ofthe case has raised the claim of error in the trial court." RAP 2.5(a). Here,Bienhoffobjected to the prosecutor'sdiscussion ofthe death penalty. Pierce joined in this objection and a motion for a mistrial based on the prosecutor's statements. We conclude that Pierce may raise this issue on appeal under RAP 2.5(a). 8No.74363-5-1/9

Wn.2d 266, 271, 356 P.2d 999 (1960). "This strict prohibition against informing the jury of sentencing considerations ensures impartial juries and prevents unfair influence on a jury's deliberations." State v. Townsend, 142 Wn.2d 838, 846, 15 P.3d 145 (2001). "[I]t is error to inform the jury during voir dire in a noncapital case that the death penalty is not involved." State v. Hicks, 163Wn.2d 477,487, 181 P.3d 831 (2008)(citing Townsend, 142 Wn.2d at 840)). There is no "distinction between a court or counsel-initiated and a juror -initiated discussion ofthe inapplicability ofthe death penalty." Hicks,163Wn.2d at487(2008)(citing State v. Mason, 160Wn.2d 910, 929, 162 P.3d 396 (2007)). "Elmn response to any mention of capital punishment, the trial judge should state generally that the jury is not to consider sentencing." Hicks, 163Wn.2d at487.16 "Where prosecutorial misconduct is claimed,the defense bears the burden of establishing the impropriety of the prosecuting attorney's comments and their prejudicial effect." State v. Brown, 132Wn.2d 529,561,940 P.2d 546 (1997). In evaluating a claim of prosecutorial misconduct, the appellate court reviews the remarks "in the context ofthe total argument,the issues in the case,the evidence addressed in the argument, and the instructions given to the jury." Brown, 132 Wn.2d at 561. "To establish prejudice, the defense must demonstrate there is a

16 The State arguesthatTownsend wasincorrectlydecided and should be overruled. This court is bound by Washington Supreme Court precedent and does not have the authority to overrule its decisions. State v.Jussila, 197Wn.App.908,931,392 P.3d 1108 (2017). Further, Townsend has been favorably cited in subsequent cases examining this issue. See Hicks, 163Wn.2d at487-89. We reject the State's requestto overrule Townsend. 9No.74363-5-1/ 10

substantial likelihood the misconduct affected the jury's verdict." Brown, 132 Wn.2d at 561. "Allegations of prosecutorial misconduct are reviewed under an abuse of discretion standard." State v. Brett, 126 Wn.2d 136, 174-75, 892 P.2d 29 (1995) (citing State v. Hughes, 106 Wn.2d 176, 195,721 P.2d 902(1986)). Here,jury selection occurred over four days. The trial court informed each group of prospective jurors that the State had charged Pierce with murder in the first degree. During the first day ofvoir dire, the prosecutor asked the trial court outside of the presence of any potential jurors "how the Court [would]address the jury if anybody ask[ed]the question ofwhether or not this [was]a death penalty case."17 The trial court's response wasthat,when the question had been raised in the past, it "sort ofevaded the question."The trial court added that,when it came up again, it addressed each juror who had a concern individually.18 The trial court also said it could address the potential jurors as a whole if counsel wanted it to do so. The prosecutor responded that [t]he State's preference is to address it head on, of course, in accordance with the law, which is to instruct them that our state Supreme Court has decided that that is not something that they are privy to, or we cannot tell them if this is a death penalty case or not, and then ask them the follow-up question. Basically, not knowing whether this is a death penalty case or not, does that cause you concern asto whether or notyou could be afair and/or impartialjuror is this case.[18] The trial court replied that

17 RP (Sept.21,2015)at405. 18 RP (Sept.21,2015)at406. 18 RP (Sept. 21,2015)at406. 10No.74363-5-1 / 11 [m]y preference would be not to ask the follow-up question, but just tell them that and then go on and see if any ofthem raises the issue beyond that. But I don't know what you think about that. The problem is if 1 invite them to say, you know, can you be fair and impartial, then anybody who for some reason or other couldn't like the idea of being here has a good way to head for the door.E201 The prosecutor then stated that if the trial court "leaves it as that sort of pregnant issue before the jury, I will ask that follow-up question or 1 intend on asking the follow-up question, because that obviously would be a concern for, 1 think, both parties."21 Counsel for Bienhoff agreed. The trial court concluded the discussion by stating, "It's probably less ofa concern if you ask the question than if 1 ask the question."22 The prosecutor said he would defer to the trial court. During the third round of attorney questioning on the third day of jury selection, without any prospective juror having expressed concerns about the death penalty,the prosecutor informed the potential jurors thatthe jury wastasked with determining the guilt or innocence of Pierce and Bienhoff,and would have no role in deciding their punishment. The prosecutor then said,

...Doesthat make sense? Do you guys all understand that? Everyone is nodding their head. Are you okay with it? Everybody in the jury box seems to be nodding their head. Anybody have a concern aboutthatorthink thatdoesn't make sense? Anybody? No one?

20 RP (Sept.21,2015)at406. 21 RP (Sept.21,2015)at407. 22 RP (Sept. 21,2015)at407. 11No.74363-5-1 /12 What about over here? Everyone okay with that? Does that cause you any concern about being a juror in this case where the charge is murder in the first degree? Anybody?[23] In response to the prosecutor's repeated questions and reminder of the charge against Pierce, a juror asked whether Washington State used the death penalty. The prosecutor deferred to the trial court, who told the potential jurors that it could not tell them whether or not the death penalty was involved in the presentcase. The prosecutorthen responded to severaljuror questions regarding the death penalty.24 The prosecutor's repeated questioning of the potential jurors prior to the discussion of the death penalty constituted prosecutorial misconduct. The record reveals that the potential jurors indicated that they understood the prosecutor's description of the jury's role and did not have follow up questions. But the prosecutor nonetheless elicited a discussion of the death penalty through his repeated questioning of the jury's understanding and recitation of the charges againstPierce. Hedid sodespite being aware oftheWashington Supreme Court's position that the jury must not be told whether the death penalty is possible in any given case. Therefore, the prosecutor's elicitation of a discussion on the death penalty constituted improper conduct sufficient to support a claim of prosecutorial misconduct.

23 RP(Sept.23,2015)at825. 24 For example,several jurors expressed concerns about being involved in a case where the death penalty could be imposed,and discomfortabout not knowing whetherthe death penalty was at issue. One juror implied that they knew the process by which the death penalty is imposed in Washington. The prosecutor generally responded to the jurors' questions by stating that he and the trial court could not tell the jurors whether the death penalty was at issue,and asking each juror ifthey could still be impartial. 12No.74363-5-1 / 13 Further, there is a substantial likelihood that the prosecutor's improper comments prejudiced Pierce. During the discussion of the death penalty, Juror 6 expressed concern over taking part in a decision that led to the imposition ofeither the death penalty or a life sentence. Although Juror 6 initially said that she could remain impartial, she later stated that she would be unable to render a decision while "not knowing whether or not[the death penalty is]even a possibility."25 The State moved to strike Juror 6 for cause based on her responses, which the trial court denied. But the trial court allowed the State to exercise a preemptory challenge against Juror 6 in part because of her responses during the death penalty discussion. Similarly,after severaljuror questions regarding the death penalty,Juror 76 stated, "I didn't realize that - - I don't know if 1 could make that decision for people."26 Juror 76 also stated that she could not fairly and impartially render a decision in this case because ofthe possibility ofthe death penalty being imposed. The trial court dismissed Juror 76 on the basis of her emotional inability to serve
as a juror,although she also had a personal hardship ground for dismissal. Therefore,two potential jurors were dismissed based on their responses to the discussion ofthe death penalty elicited by the prosecutor's improper conduct. The improper changing of the composition of the jury in favor of those who were comfortable with the possibility ofthe death penalty being imposed is highly likely to have rendered the jury more inclined to convict and punish. Thus, there is a substantial likelihood that the prosecutor's improper comments prejudiced Pierce.

25 RP (Sept.23,2015)at 833. 26 RP (Sept.23,2015)at 837. 13No.74363-5-1 / 14

In sum,the prosecutor's comments were improper because they elicited a discussion of the death penalty during voir dire for a noncapital case. Further, there is a substantial likelihood that the improper comments prejudiced Pierce because potential jurors that may have otherwise sat on the jury were struck on the basis of their negative responses to the death penalty discussion. We conclude that the trial court abused its discretion when itfailed to curtail this line of questioning during voir dire, and remand for a new tria1.27 Because the other issues Pierce raises may occur on retrial, we address them in the remainder ofthis opinion. Appearance of Fairness Doctrine Pierce argues that the trial judge violated the appearance of fairness doctrine when he made a commentimplying racial bias.28 ButPierce did notobject to the trial judge's comment below. "An appearance of fairness claim is not 'constitutional' in nature under RAP 2.5(a)(3)and,thus, may not be raised for the

27 Pierce also argues that the State improperly struck Juror 6,who wasAfrican-American, for pretextual reasons, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69(1986),that the trial court erred during voir dire by telling the jury that the death penalty was not at issue in the present case,thatthe trial courterred when it sat an alternate juror without ensuring that she had been protected from outside influence, and thatthe trial court erred in not admonishing a juror who stated that he or she was familiar with Washington's procedure for applying the death penalty not to share that knowledge. Because we reverse and remand for a new trial due to prosecutorial misconduct during voir dire and these issues are unlikely to arise on retrial, we do not reach them. 28 When examining the admissibility oftext messagessentbetween Reed and a third party regarding a debt Reed owed, the judge stated, "[W]e don't have any information [about the third party], so we don't know whether he's some white guy like me making a threat or somebody who's actually, you know,more likely to be a gangster." RP (Oct.21,2015)at 2915. The Commission on Judicial Conduct subsequently admonished the judge. Commission on Judicial Conduct,Judicial Conduct Commission Approves Stipulation and Admonishes Judge Douglass A. North, No. 8583-F-174 (Dec. 8, 2018), https://www.cjc.state.wa.us/materials/activity/public_actions/2017/8583FinalStip.pdf (last visited May 11,2018). 14No.74363-5-1 / 15

first time on appeal." In re Guardianship of Cobb, 172 Wn.App. 393, 404, 292 P.3d 772 (2012)(quoting State v. Morgensen, 148 Wn.App.81,90-91, 197 P.3d 715 (2008)); see also City of Bellevue v. King County Boundary Review Bd., 90 Wn.2d 856, 863, 586 P.2d 470 (1978) ("Our appearance of fairness doctrine, though related to concerns dealing with due process considerations, is not constitutionally based."). Therefore, we conclude that Pierce cannot raise this issue for the first time on appeal. Exclusion of Evidence Pierce argues that the trial court abused its discretion when it refused to admit several pieces of evidence.29 Since these issues are likely to recur upon retrial, we examine each piece of offered evidence in turn. Evidence that is not relevant is not admissible. ER 402. "[E]vidence must (1)tend to prove or disprove the existence of a fact, and (2)that fact must be of consequence to the outcome of the case." Davidson v. Municipality of Metro. Seattle, 43Wn.App.569,573,719 P.2d 569(1986);ER 401. This includes "facts which offerdirect or circumstantial evidence ofany elementofa claim ordefense." Davidson, 43Wn.App.at 573. We review a trial court's evidentiary ruling for abuse ofdiscretion. State v. Halstien, 65Wn.App.845,849-50,829 P.2d 1145 (1992). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable

29 Pierce also argues that the trial court infringed his constitutional right to present a defense when it excluded the evidence at issue. But Pierce does not offer significant argumentin supportofhis contention thatthe trial court's rulingsviolated his constitutional rights. Rather,his argumentsfocus on whetherthe trial court abused its discretion when it excluded the evidence at issue. Therefore,we examine whether the trial court abused its discretion in making its evidentiary rulings. 15No.74363-5-1/ 16

grounds or reasons. In re Det. of Duncan, 167 Wn.2d 398, 402, 219 P.3d 666 (2009). "A decision is based on untenable grounds orfor untenable reasons ifthe trial court applies the wrong legal standard or relies on unsupported facts." Duncan, 167Wn.2d at 403. Violation of an evidentiary rule is not grounds for reversal unless the defendant suffered prejudice. State v. Bourgeois, 133Wn.2d 389,403,945 P.2d 1120 (1997). An error is not prejudicial "unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred." State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981). Further, "[t]he improper admission ofevidence constitutes harmless error ifthe evidence is of minor significance in reference to the overall, overwhelming evidence as a whole." Bourgeois, 133Wn.2d at403. Reed's Financial Situation Pierce arguesthatthe trial courtabused its discretion by applying the wrong legal standard to exclude certain evidence of Reed's poor financial status. Because the trial court properly exercised its discretion to admit only some evidence of Reed's financial situation, we disagree. "Although relevant, evidence may be excluded if its probative value is substantially outweighed bythe danger ofunfair prejudice,confusion ofthe issues,

or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." ER 403. "Evidence of poverty is generally not admissible to show motive." State v. Kennard, 101 Wn.

App.533,541,6P.3d 38(2000)(citing United Statesv. Mitchell,

16No.74363-5-1 / 17

172 F.3d 1104, 1108 (9th Cir. 1999)). But "[e]vidence concerning a defendant's bankruptcy and poor financial condition is admissible to show that the defendant

wasliving beyond his means." Kennard, 101 Wn. App.at540-41. In turn,evidence that the defendant was living beyond his means may be admissible to establish the defendant's motive to commit a crime if its probative value is not substantially outweighed by its potential prejudice. State v. Matthews, 75 Wn.App. 278, 283, 286, 877 P.2d 252 (1994)(holding that the trial court did not abuse its discretion when it admitted evidence ofthe defendant's recent bankruptcy and living beyond his means in trial for first degree murder where State's limited presentation of evidence did notmake "any stigma ofbankruptcy or poverty"the pointofemphasis for the jury). Here, Pierce sought to introduce evidence of Reed's financial situation before the incident in order to show that Reed intended to rob Bienhoff. Pierce offered evidence that Reed and his wife lacked steady employment, received public assistance, and maintained a lifestyle beyond their means. Pierce also sought admission of evidence that Reed pawned jewelry, attempted to prostitute his wife, and borrowed moneyfrom a third party who later threatened him. The trial court ruled that Pierce could introduce evidence of Reed and his wife's lack of steady employment, that Reed had pawned a ring, and that Reed had borrowed money from a third-party seeking repayment. The trial court admitted a pawn slip for the ring,found in Reed's van,showing that paymentwas due four days after the incident occurred. The trial court stated that this evidence

17No.74363-5-1 / 18

wasadmissible because itdemonstrated thatReed was under "enormousfinancial pressure"when he met Bienhoff.3° The trial court excluded the remainder of Pierce's offered evidence after finding that its potential prejudicial impact substantially outweighed its probative value. This included six other pawn slips for items for which payments were not due close to the time ofthe incident. The trial court properly weighed the probative value of each item of evidence against its potential prejudicial impact prior to deciding whether to admit the evidence under ER 403. The trial court limited the scope of the evidence admitted on the issue of whether Reed had a financial motivation supporting his alleged intentto rob Bienhoffunder ER 403. The trial court noted thatthe evidence could paint Reed and his wife as undesirable people in the eyes of the jury. The trial court concluded that only evidence demonstrating that Reed was under "enormous financial pressure"when he met Bienhoff was sufficiently probative to be admissible under ER 403. We conclude that the trial court properly exercised its discretion to admit only some evidence of Reed's financial situation. Reed's Prior Criminal Charge Pierce argues that the trial court erred when it denied his request to admit evidence of Reed's prior criminal behavior. The State responds thatthe trial court properly barred the evidence as inadmissible propensity evidence under ER 404(b). We agree with the State.

3° RP (Sept. 14,2015)at 127-28. 18No.74363-5-1 / 19 "[E]vidence of prior misconduct is presumptively inadmissible." State v. Gresham, 173Wn.2d 405,421,269 P.3d 207 (2012). Evidence of other crimes,wrongs,or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive,opportunity, intent, preparation,plan,knowledge, identity, or absence of mistake or accident. ER 404(b). The admission ofevidence ofother crimes "depend[s]on its relevance and the balancing of its probative value and danger of unfair prejudice; the list of other purposes in the second sentence of ER 404(b) is merely illustrative." Gresham, 173Wn.2d at420. To admitevidence ofa person's prior acts,"the trial court must(1)find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced,(3)determine whether the evidence is relevant to prove an element of the crime charged,and (4)weigh the probative value against the prejudicial effect." State v. Vv Than% 145 Wn.2d 630,642,41 P.3d 1159 (2002). "The party seeking to introduce [ER 404(b)] evidence has the burden of establishing the first, second,and third elements." Gresham, 173Wn.2d at 421. Here,before trial, Pierce soughtto admitevidence ofa 2006 robbery charge against Reed. The State had charged Reed with first degree robbery based on the victim's claim thatReed threatened him with a gun and demanded money. The State's inability to find the victim resulted in the charge being dismissed without prejudice. The trial court barred evidence ofReed's prior charge under ER 404(b)

as impermissible propensity evidence.

19No.74363-5-1 /20 The trial courtdid noterr in its ruling. Pierce had the burden ofestablishing that evidence of Reed's prior robbery charge was admissible under ER 404(b). But he failed to prove that Reed had committed the acts underlying his 2006 robbery charge by a preponderance ofthe evidence. The charge was based solely

on the victim's report to police and identification of Reed from a photo lineup. But the charge was not brought to trial because the victim could not be found. Without additional evidence, the dismissed charge is insufficient to demonstrate that Reed committed the alleged robbery. Therefore, we conclude that the trial court properly denied admission of the robbery charge as impermissible propensity evidence under ER 404(b). Bibb's Prior Gun Ownership Pierce argues that the trial court abused its discretion when it did not admit evidence of Bibb's prior gun ownership. The State contends that the trial court properly excluded the evidence under ER 404(b). We agree with the State. Evidence ofprior acts is "not admissible to prove the character ofa person in order to show action in conformity therewith." ER 404(b). A defendant's previous ownership of guns may be admissible when it is circumstantial evidence connecting him or her to the particular weapons thatwere used in the crime at issue. See State v. Hartzell, 156 Wn.App. 918,930-32, 237 P.3d 928 (2010) (evidence connecting the defendants to the guns used in the crime wasadmissible as circumstantial evidence where its probative value was not outweighed by its prejudicial effect). But evidence that the defendant was in possession of a gun that was not used in the crime at issue may be barred as

20No.74363-5-1 /21

impermissible propensity evidence. State v. Freeburg, 105Wn.App.492,500-01, 20 P.3d 984 (2001)(the trial court erred in admitting evidence thatdefendantwas armed when arrested over two years after murder at issue occurred because the evidence was prejudicial and had little probative value, in part because the gun
was notthe one used in the murder). Here, Pierce moved to admit evidence showing that Bibb had previously owned guns of the same caliber as those used in the incident and that he had experience with and knowledge of guns. The trial court excluded evidence of Bibb's Prior gun ownership under ER 404(b), but allowed Pierce to ask Bibb whether he was armed at Woodland Park, whether he owned guns of the same caliber as those used in the incident when the incident occurred, and whether he had been able to tell if the gun that had been fired at him was a revolver or a semiautomatic. The trial court properly determined that evidence of Bibb's prior ownership of guns of the same caliber as those used in the incident was inadmissible under ER 404(b). Bibb testified that he was not armed at Woodland Park on the day of the incident. There was no evidence at trial that Bibb had ever owned or possessed the weapons that were used during the incident.31 Absent such evidence,Pierce cannot show that Bibb's previous gun ownership was relevantto the present case beyond showing that Bibb was a gun owner who participated in

an incident that involved guns. Thus,evidence of Bibb's past ownership of guns

31 Testimony at trial indicated that Lyons provided Bienhoff's group with two handguns, including a .45 caliber pistol. 21No.74363-5-1/22

constitutes impermissible propensity evidence under ER 404(b),and we conclude that the trial courtdid not abuse its discretion when it excluded the evidence.32

Evidence of Consciousness of Guilt Pierce argues that the trial court abused its discretion when it admitted evidence that he assaulted Barnes while both were being held prior to trial, in violation of ER 404(b). Because the evidence was properly admitted on the issue of Pierce's consciousness ofguilt, we disagree. To admitevidence ofa person's prior acts,"the trial court must(1)find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced,(3)determine whether the evidence is relevant to prove an element of the crime charged,and (4)weigh the probative value against the prejudicial effect." Vv Than% 145 Wn.2d at 642; ER 404(b). Evidence of prior misconduct is presumptively inadmissible, and the party offering the evidence has the burden of establishing that the misconduct

32 Pierce argues that the trial court should have admitted evidence of Bibb's prior gun ownership if it was relevant because defendants have a lower bar of admissibility under ER 404(b), relying on State v. Jones, 168 Wn.2d 713, 723-24, 230 P.3d 576 (2010) (holding that highly probative and relevant evidence of the victim's alleged consensual participation in a drug and sex party wasadmissible despite being barred byWashington's rape shield statute, RCW 9A.44.020,in orderto protectthe defendant's Sixth Amendment right to present a defense); see also United States v. Aboumoussallem, 726 F.2d 906, 911-12 (2d Cir. 1984); New Jersey v. Garble, 76 N.J. 445, 452-53, 388 A.2d 587 (N.J. 1978). This is unpersuasive. Bibb testified that he was not armed at Woodland Park on the day ofthe incident. Pierce's offered evidence that Bibb had owned guns of the same caliber as those used in the incident does not rise to the level of the evidence at issue in Jones, in which the defendant's offered evidence constituted the entirety of his defense. Pierce's citation to federal and New Jersey case law analyzing rules of evidence not at issue in the present case are both inapplicable to this case and unpersuasive in their substantive content. We reject Pierce's argument. 22No.74363-5-1/23

occurred, the purpose for which the evidence is introduced, and the relevancy of the evidence. Gresham, 173Wn.2d at420-21. Evidence may be admissible to show a defendant's consciousness of guilt

as to the charged crime. State v. Norlund, 113 Wn.App. 171, 188, 53 P.3d 520 (2002). For evidence to be admissible on the issue of consciousness of guilt, it must be "sufficient so as to create a reasonable and substantive inference" that the action was taken in "reaction to a consciousness ofguilt." State v. Price, 126 Wn.App.617,645, 109 P.3d 27(2005). "Conduct on the part of an accused person . . . having for its purpose the prevention of witnesses appearing and testifying at his [or her] trial is a circumstance for the jury to consider as not being likely to be the conduct of one who was conscious of his innocence." State v. Kosanke, 23Wn.2d 211,215,160 P.2d 541 (1945); see,e.g., State v. Saenz, 156 Wn.App.866,874,234 P.3d 336 (2010), aff'd in part and rev'd in part, 175 Wn.2d 17, 283 P.3d 1094 (2012) (evidence that defendant used sign language to threaten a witness and that witness was assaulted by other inmates who said "word was sent over," assumedly by the defendant,was admissible to show consciousness ofguilt). A trial court's evidentiary rulings are reviewed for abuse of discretion. Halstien, 65Wn.App.at 849-50. Here, over Pierce's objection, the trial court allowed the State to admit evidence that Pierce assaulted Barnes while they were both in jail 10 months after the incident occurred. At trial, Barnes testified that Pierce assaulted him on December 13, 2012,while both were waiting in a holding cell at the King County

23No.74363-5-1 /24

Courthouse prior to a court hearing. Barnes testified about his injuries and that he

was placed in solitary confinement for his own safety. Two King County Courthouse guards also testified about the incident, with one describing Pierce standing over Barnes while telling Barnes to stay on the ground. The State submitted a recorded jail telephone call in which Pierce said that he knocked out Barnes because he "snitched."33 Pierce testified that he assaulted Barnes because "[Barnes]lied"and the "opportunity presented itself."34 The evidence ofPierce's assaultofBarneswas properly admitted under ER 404(b)to show Pierce's consciousnessofguilt. The underlying actwas undisputed and properly identified as evidence to show Pierce's consciousness of guilt. The trial court noted that the evidence was relevant,as Barnes's testimony that Pierce

wasatWoodland Park would contradictPierce's initial alibi that he was not present at the incident.35 The evidence carried significant probative value to the State's case that Pierce was a participant in the incident. Barnes was prepared to testify that Pierce

was at Woodland Park and to provide details of Pierce's involvement in the incident.36 Thus,Pierce's assaulton Barnes,especially coupled with hisstatement that Barnes "snitched" on him during the jail phone call, was highly probative on the issue ofwhether Pierce was motivated by a consciousness ofguilt.

55 Ex. 103(jail telephone call recording:Dec.25,2012;9.42at 2min.,54sec.-2min.,55 sec.). 34 RP (Oct. 22,2015)at 3225. 55 While arguing about the admissibility of the evidence, the parties discussed Pierce's alibi that he was not present atWoodland Park,although Pierce latertestified aboutwhat occurred during the incident. 36 Pierce may have also been aware that he was identified and charged with murder because of Barnes. 24No.74363-5-1/25 Further, the potential prejudice of the evidence against Pierce was insufficient to outweigh its probative value. Pierce was charged with first degree murder predicated on robbery with a firearm enhancement. The evidence against him involved a non-fatal assault. Although both involve violence toward another individual, an assault does not show propensity to commit first degree felony murder predicated on robbery. Further, the jury could weigh Pierce's statements that he assaulted Barnes because he "snitched" against his rationale that Barnes "lied" about Pierce's involvement in determining what inference to draw from the evidence. Thus, although the evidence may have prejudiced Pierce, it was insufficient to overcome the evidence's probative value. Pierce argues that the evidence of Pierce's assault of Barnes was unfairly prejudicial because it was likely to arouse an emotional response from the jury. This is unpersuasive. Evidence causes unfair prejudice where it "is more likely to arouse an emotional response than a rational decision by the jury." State v. Gould, 58 Wn. App. 175, 183, 791 P.2d 569 (1990). Admission of prior criminal convictions or actions may be likelyto elicitsuch an emotional responsefrom a jury ifthey involve serious criminal allegations that are unrelated to the charge at issue in the present

case. See,e.g., State v. Johnson, 90Wn.App.54,63,950 P.2d 981 (1998)(trial court erred when it admitted evidence of defendant's unrelated prior rape conviction in assault case where defendant offered to stipulate to the prior violent offense without naming the offense).

25No.74363-5-1 /26 Here, Pierce's assault of Barnes is not the type of offense that is likely to elicit an emotional response from the jury that would override its rational decision

making capacity. Further,as discussed above,Pierce's assaultwas related to the underlying charge in the present case to the extent it demonstrated his consciousness ofguilt. We reject Pierce's argument. Pierce argues that the evidence of his assault was equivocal because it could either show that Pierce acted on his consciousness of guilt or that it demonstrated hisfrustration with being framed. Evidence ofconsciousness ofguilt need not be unequivocal to be admissible. See Price, 126 Wn.App. at 645. As discussed above, evidence of Pierce's assault of Barnes leads to a reasonable inference that he did so based on his consciousness ofguilt. The factthat it could lead to other reasonable inferences does not render the evidence inadmissible. We reject this argument. Pierce contends thatthe prejudicial value ofthe evidence was exacerbated when the prosecutor committed flagrant and ill-intentioned misconduct by stating that he "bragged"about assaulting Barnes during closing argument.37 If a defendant does not object at trial, he or she waives a claim of prosecutorial misconduct unless he or she shows that "(1)'no curative instruction would have obviated any prejudicial effect on the jury' and (2) the misconduct resulted in prejudice that 'had a substantial likelihood ofaffecting the jury verdict." State v. Emery, 174 Wn.2d 741, 761, 278 P.3d 653 (2012) (quoting State v. Thorgerson, 172Wn.2d 438,455,258 P.3d 43(2011)).

37 RP (Oct.29,2015)at 3776. 26No.74363-5-1 /27 Here, Pierce did not object to the prosecutor's statement that Pierce "bragged" about assaulting Barnes during argument. On appeal, Pierce has not demonstrated thata curative instruction by the trial courtwould not have cured the alleged misconduct. Similarly, he has notdemonstrated thatthere is a substantial likelihood that the jury's verdict was affected by the statement. Therefore, Pierce has not carried his burden ofestablishing prosecutorial misconduct,and we reject this argument. In sum,thetrial courtconsidered each ofthe ER 404(b) factors and properly concluded that each was satisfied. Therefore,we conclude that the trial court did not abuse its discretion when it determined that evidence of Pierce's assault of Barneswasadmissible under ER 404(b)on the issue of his consciousness ofguilt.

Admission of Evidence in Violation of ER 613 Pierce argues that the trial court erred when it admitted testimony of Hiram Warrington to impeach Lyons's testimony. According to Pierce, the testimony included substantive content of two out of court conversations, and thereby violated ER 613. Because Pierce has not demonstrated that Warrington's testimony violated ER 613or thatthe trial court's limiting instruction regarding the testimony was insufficient, we disagree. ER 613providesthat,when examining a witness concerning his or her prior statement, "the court may require that the statement be shown or its contents disclosed to the witness at that time, and on request the same shall be shown or disclosed to opposing counsel." ER 613(a). ER 613 also provides that extrinsic evidence of a witness's prior inconsistent statement is not admissible unless the

27No.74363-5-1 /28

witness has an opportunity to refute or explain the statement and the opposing party has an opportunity to question the witness. ER 613(b). Here,at trial, Warrington testified that Lyons told him about the incident on the day that it occurred. He also testified that Pierce came to Lyons's house and Lyons asked him if he had gotten rid ofeverything. Pierce responded that he had gotten rid ofeverything in Carkeek Park,which was close to Lyons's house. Lyons testified that he did not meetWarrington at his house after the incident or discuss the incidentwith Pierce and Warrington later thatweek. Pierce denied discussing the incident with Lyons when Warrington was present. Pierce has notdemonstrated thatWarrington's testimony aboutthe alleged conversations violated ER 613. Pierce does not contend that he and Lyons were denied the opportunityto explain prior inconsistentstatements,orthatthe interests of justice barred the admission of the testimony. He has not otherwise demonstrated that ER 613bars Warrington's testimony. We reject this argument. Pierce also argues that the trial court erred in admitting the content of Warrington's testimony because the State called Lyonsfor the primary purpose of admitting impeachment evidence that was otherwise inadmissible, citing State v. Lavaris, 106 Wn.2d 340,345,721 P.2d 515 (1986). This is unpersuasive. Lyons offered substantial testimony attrial, including that he provided the group with two guns, how Pierce became involved in the incident, and the events that transpired during the incident. Warrington's testimony only impeached Lyons's statements that he did not talk with Warrington or have a conversation with Pierce with Warrington nearby following the incident. Thus,the record demonstrates that the

28No.74363-5-1/29

Statedid notcall Lyonsforthe primary purpose ofadmitting otherwise inadmissible evidence. Pierce argues thatthe trial court's oral limiting instruction to the jury to only consider Warrington's testimony for the purpose of impeaching Lyons's credibility

was ineffective, citing State v. Hancock, 109 Wn.2d 760, 763-64, 748 P.2d 611 (1988). In State v. Hancock, the court discussed ER 607and prohibited the State from calling a witness for the primary purpose ofadmitting inadmissible evidence. 109 Wn.2d at 763-64. But the court also stated that, "if counsel wishes to restrict the jury's use of evidence, it must request an appropriate limiting instruction. We note that no such limiting instruction was requested in this case." Hancock, 109 Wn.2d at 767. Here,unlike in Hancock, the trial courtgave a limiting instruction to the jury to only consider Warrington's testimony for the purpose of impeaching Lyons's testimony. Pierce's argument ignores that Hancock endorsed instructing the jury on this issue, and does not stand for the proposition that limiting instructions are ineffective. We reject this argument. Judicial Comment on the Evidence Pierce argues that the trial court improperly commented on the evidence when it told the jury that Lyons made oral assertions to Warrington. Pierce contends thatthe trial court's limiting instruction to the jury regarding Warrington's testimony implied that the conversation occurred,where thatfact was.disputed at trial. Because the trial court's limiting instruction did not convey the judge's personal opinion to the jury or inform the jury whether he believed Warrington's testimony,we disagree.

29No.74363-5-1 / 30 "Judges shall not charge juries with respectto matters offact, nor comment thereon, but shall declare the law." WASH.CONST. art. IV, § 16. This provision prevents the jury "from being influenced by knowledge conveyed to [them]by the court as to the court's opinion of the evidence submitted." Heitfeld v. Benevolent & Protective Order of Keglers, 36Wn.2d 685,699,220 P.2d 655 (1950). "An impermissible comment is one which conveys to the jury a judge's personal attitudes toward the merits ofthe case orallowsthejury to inferfrom what the judge said or did not say that the judge personally believed or disbelieved the particular testimony in question." Hamilton v. Dep't of Labor & Indus., 111 Wn.2d 569,571,761 P.2d 618(1988). A court's improper commentgiving its opinion may be express or implied. State v. Levy, 156Wn.2d 709,721, 132 P.3d 1076 (2006). The prohibition on judicial commentson the evidence is strictly applied. City of Seattle v.Arensmeyer, 6Wn.App. 116, 120,491 P.2d 1305 (1971). A claim of improper judicial comment implicates manifest constitutional error and may be raised for the first time on appeal. Lew, 156 Wn.2d at 719. Appellate courts review whether an instruction amounts to a comment on the evidence de novo. State v. Butler, 165 Wn. App. 820, 835, 269 P.3d 315 (2012). Here,Warrington testified that he had a conversation with Lyons on the day of the incident, and that he was present when Lyons and Pierce discussed the incident. Lyons denied that either conversation occurred. While Warrington was testifying that Lyons had told him aboutthe incident on the day it occurred,the trial court instructed the jury that "[t]estimony regarding any oral assertions made by

30No.74363-5-1/ 31

Ray Lyons to Hiram Warrington may be considered by you only for the purpose of impeaching Ray Lyons'[s] credibility. You may not consider it for any other purpose."38 The trial court's limiting instruction to the jury did not constitute an impermissible judicial commenton the evidence because it did not convey the trial court's attitude toward the merits ofthe case or belief in Warrington's testimony to the jury. The trial court's limiting instruction directed the jury to only consider testimony regarding any oral assertions made by Lyons to Warrington for the purpose of impeaching Lyons's credibility. The instruction did not reference the oral assertions or otherwise remove the determination of whether the oral assertions occurred from the jury. Also, the focus of the trial court's instruction

was to limit the jury's consideration ofWarrington's testimony, notto establish the factual basis ofthat testimony. Further, the trial court's limiting instruction did not favorably compare Warrington's credibility to that of Lyons's. Warrington's testimony was offered to impeach Lyons'stestimony. The trial court's limiting instruction simply told the jury to consider his testimony for this purpose alone, rather than for the substance of Lyons's alleged statements. It did not suggest that Warrington himself was credible or thatthe trial court personally believed Warrington's testimony.39

38 RP (Oct.20,2015)at 2783. 39 Pierce argues that the trial court's limiting instruction improperly weighed in on Warrington's and Lyons's credibility, and thereby impugned Pierce's credibility. Pierce does not cite to legal authority in support of his assertion that an instruction limiting the jury's consideration of evidence to the issue of witness credibility constitutes a comment on the evidence. We rejectthis argument. RAP 10.3(a)(6). 31No.74363-5-1/ 32 Thus,the trial court's limiting instruction did not convey the court's attitudes toward the merits ofthe case or decide a disputed issue offact. We conclude that the trial court's limiting instruction was not an impermissible comment on the evidence. Excusable Homicide Jury Instruction Pierce argues that the trial court erred when it declined to instruct the jury

on excusable homicide. Even though we have reversed his conviction on other grounds, we reach the alleged instructional issue since it may be argued again upon retrial. Because an instruction on excusable homicide was not appropriate in light of Pierce's charged crime and the parties'theories at trial, we disagree.4° "A defendantin a criminal case is entitled to have the juryfully instructed on the defense theory of the case." State v. Staley, 123 Wn.2d 794, 803, 872 P.2d 502(1994). Failure to fully instruct the jury is prejudicial error. State v. Riley, 137 Wn.2d 904,908 n.1, 976 P.2d 624 (1999). First or second degree murder may be based on a killing that occurs in the

course of and in furtherance of a felony or in immediate flight therefrom. RCW 9A.32.030(1)(c); RCW 9A.32.050(1)(b). The State must prove that the defendant had the intent required to commit the underlying felony, not the intent required to prove first or second degree murder. State v. Craig, 82 Wn.2d 777, 781-83, 514

40 The State first argues that Pierce cannot raise this argument on appeal because he did notsubmita jury instruction on excusable homicide orotherwise take exception to the trial court's refusal to so instruct the jury. Generally, a party must request an instruction or objectto its rejection to preserve the issue on appeal. State v.Scott, 110Wn.2d 682,685- 86, 757 P.2d 492 (1988); CrR 6.15(c). Here, Bienhoff proposed the jury instruction on excusable homicide,and Pierce joined Bienhoff's exception to the trial court's rejection of the proposed instruction. We conclude that Pierce may raise this issue on appeal. 32No.74363-5-1 / 33

P.2d 151 (1973). "Even ifthe murder is committed more or less accidentally in the

course ofthe commission ofthe predicate felony,the participants in the felony are still liable for the homicide." State v. Bolar, 118 Wn.App.490,504,78 P.3d 1012 (2003)(citing State v. Leech, 114Wn.2d 700,708,790 P.2d 160 (1990)). "Homicide is excusable when committed by accident or misfortune in doing any lawful actby lawful means,withoutcriminal negligence,orwithoutany unlawful intent." RCW 9A.16.030. "[A]trial court's refusal to give an instruation [to the jury] based on a ruling of law is reviewed de novo." State v.Walker, 136 Wn.2d 767,772,966 P.2d 883 (1998). Here, Pierce was charged with murder in the first degree by reason of causing Reed's death while committing or attempting to commit the crime of robbery in the first degree. Pierce argued that the trial court should instruct the jury on excusable homicide with modified self-defense language.'" The trial courtdeclined to instruct the jury on excusable homicide. The trial court concluded that Pierce and Bienhoff could not argue that Bienhoff lawfully used force during the incident because self-defense is not a defense to robbery. Further,the trial court noted that the jury's decision hinged on whether they found that Pierce and Bienhoff had attempted to rob Reed. If the jury determined that Pierce and Bienhoffdid not attempt to rob Reed,Pierce would not be guilty ofthe charged crime. But if the jury determined that Pierce and Bienhoff did attempt to

41 Pierce did not submita proposed excusable homicide instruction. 33No. 74363-5-1 /34

rob Reed, then justifiable homicide was not available because Bienhoff's use of force was not done during a lawful act. The trial court did not err when it declined to instruct the jury on excusable homicide. For an excusable homicide instruction to be available, Pierce would have to demonstrate that Bienhoff was acting lawfully by lawful means. A determination that Bienhoff was acting in furtherance of or with intent to commit robbery when Reed died would necessarily establish that he was not acting lawfully by lawful means. Therefore, if the State carried its burden of proving that Bienhoff caused Reed's death while he was acting furtherance of or with intent to commit robbery,an instruction on excusable homicide would be inappropriate. Further, Pierce's theory at trial was that he and Bienhoff intended to sell Reed marijuana. Pierce claimed that Reed's death was an accidentthat occurred when Reed pulled outa gun during the transaction. Buteven ifthejurydetermined that Pierce established his theory of the case, they would not reach the issue of whether Reed's death was an excusable homicide. Pierce was solely charged with felony murder predicated on robbery. Robbery was a necessary prerequisite for the felony murder charge. Thus, if the jury determined that Bienhoff met Reed with the intent to sell him marijuana, rather than the intent to rob him, the State would have failed to establish the predicate felony and Pierce would have been found not guilty. Without the underlying robbery, the jury would never reach the issue of whether Bienhoff caused Reed's death. Thus,under the facts ofthe present case,even if

34No.74363-5-1 /35

Pierce successfully argued his theory of the case at trial, the trial court did not err in declining to instruct the jury on excusable homicide. Pierce argues that binding Washington case law requires that the jury be instructed on excusable homicide in felony murder cases where facts support the instruction. We disagree. In State v. Brightman, the defendant was charged with premeditated first degree intentional murder and in the alternative with first degree felony murder based on robbery after he allegedly killed the victim during a car theft. 155Wn.2d 506,509-11,122P.3d 150(2005). The Washington Supreme Courtnoted thatthe proper defense to an accidental killing is excusable homicide, not justifiable homicide as argued by the defendant at trial. Brightman, 155 Wn.2d at 513,525- 26. After reversing for an open courts violation, the Washington Supreme Court noted that, if the defendant argued on remand that he "committed an excusable homicide thatwas precipitated by an actofself-defense,"the trial courtwould have to determine whether he had raised sufficient supporting evidence. Brightman, 155 Wn.2d at 526. In State v. Slaughter, the defendant was charged with second degree intentional murder and in the alternative with second degree felony murder based

on assault. 143Wn.App.936,941, 186 P.3d 1084 (2008). The Court ofAppeals affirmed the trial court's instruction to the jury on excusable homicide where the defendantargued that,after he and the victim struggled over possession ofa crack pipe,hefatally stabbed thevictim while defending himselffrom the victim's assault. Slaughter, 143 Wn.App. at 940-41,944-47. The Court ofAppeals noted that the

35No.74363-5-1 /36

facts of the case supported the defendant's request for an excusable homicide instruction. Slaughter, 143Wn.App.at 946-47. The cases cited by Pierce are distinguishable from the present case. Brightman and Slaughter involved charges of intentional murder with charges in the alternative offelony murder. As discussed above,Pierce was solely charged with felony murder predicated on robbery. He was not charged with a separate violent crime that could necessitate giving an instruction on excusable homicide. Thus,neither Brightman nor Slaughter control the outcome ofthe present case. In light of Pierce's charged offense, the facts of the present case, and the parties' theories at trial, the jury would not reach the issue of whether Reed's death was
an excusable homicide. The trial court properly declined to issue an excusable homicide instruction. Calculation of Offender Score Pierce argues that the trial court miscalculated his offender score because it counted two prior nonviolent juvenile felony offenses as 1 point each,instead of 1/2 point each. Because the trial court's offender score calculation shows that it counted each ofPierce's two prior nonviolentjuvenile felony offenses as 1/2 point,

we disagree. First degree murder is a serious violent offense. RCW 9.94A.030(46)(a)(i). If the present conviction is for a serious violent offense, count three points for prior adult and juvenile convictions for crimes in this category, two points for each prior adult and juvenile violent conviction (not already counted), one point for each prior adult nonviolent felony conviction, and 1/2 point for each prior juvenile nonviolentfelony conviction.

36No.74363-5-1/ 37

RCW 9.94A.525(9). Assault in the second degree is a violent offense. RCW 9.94A.030(55)(viii). Calculation of a defendant's offender score is reviewed de novo. State v. Mutch, 171 Wn.2d 646,653,254 P.3d 803(2011). Here, Pierce's criminal history included six prior adult nonviolent felony convictions, one prior adult violent conviction, and two prior juvenile nonviolent felony convictions.42 This resulted in 6 total points for his prior adult nonviolent felony convictions, 2 total points for his prior adult violent conviction, and 1 total point for his two juvenile nonviolent felony convictions for an offender score of 9. The trial court calculated Pierce's offender score as 9. We conclude that the trial court did not err in calculating Pierce's offender score.

Imposition of Legal Financial Obligations Pierce argues that the trial court erred when it imposed $600 in legal financial obligations (LF0s) upon him. Because the challenged LFOs are mandatory,we disagree. "When any person isfound guilty in any superior court of having committed

a crime . . . there shall be imposed by the court upon such convicted person a penalty assessment." RCW 7.68.035(1)(a). The imposed penalty "shall be five

42 Pierce's prior adult nonviolent felony convictions were one count of adult residential burglary,two counts ofadultpossession ofa stolen vehicle,one countofadult possession of stolen property, one count of adult attempt to elude pursuing police, and one count of adult theft in the second degree. Pierce's prior adult violent conviction was one count of second degree assault. Pierce's two priorjuvenile nonviolentfelony convictionswere one count of juvenile theft in the second degree and one count of juvenile taking a motor vehicle without permission. 37No.74363-5-1/ 38

hundred dollars for each case or cause of action that includes one or more convictions ofa felony." RCW 7.68.035(1)(a). "Every sentence imposed for a crime specified in RCW 43.43.754 must include a fee of one hundred dollars. The fee is a court-ordered legal financial obligation as defined in RCW 9.94A.030 and other applicable law." RCW 43.43.7541. "A biological sample must be collected for purposes of [deoxyribonucleic acid (DNA)] identification analysis from: (a) Every adult or juvenile individual convicted of a felony." RCW 43.43.754. Both victim penalty assessment (VPA) and DNA collection fees are mandatory LFOs that are not subjectto trial courts'discretion. State v. Mathers, 193Wn.App.913,918-21,376 P.3d 1163(2016). Appellate courts review questions ofstatutory interpretation de novo. State

v. Hirschfield, 170 Wn.2d 536,541-42,242 P.3d 876 (2010). Here,the trial court imposed LFOs on Pierce consisting ofa $500VPA and

a $100 DNA collection fee. These LFOs are mandatory under RCW 7.68.035 and RCW 43.43.7541, regardless of indigency. Therefore, the trial court did not err when it imposed $600 in LFOs on Pierce.43 Pierce arguesthatenforcementofthe LFOswould infringe his constitutional equal protection rights and his Fourteenth Amendment rights under Fuller v. Oregon, 417 U.S. 40, 45-46, 94 S. Ct. 2116, 40 L. Ed. 2d 642 (1974). Pierce's

43 Pierce contendsthatthe trial courtshould have waived all LFOs because he is indigent, relying on State v. Blazina, 182Wn.2d 827,344 P.3d 680(2015)and related cases. This is unpersuasive. In Blazina, the court analyzed RCW 10.01.160(3),which provides that a court "shall not order a defendant to pay costs unless the defendant is or will be able to pay them." 182 Wn.2d at 839. The present case does not involve RCW 10.01.160(3). We reject Pierce's analogy to Blazina. 38No. 74363-5-1/ 39

arguments have been previously rejected. See Mathers, 193 Wn.App.at 925-26 (rejecting equal protection and Fourteenth Amendment arguments against imposition of mandatory LF0s).44 Reversed and remanded for a new trial.

WE CONCUR: 

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44 Pierce argues that imposition of the LFOs violated his substantive due process rights. Substantive due process challenges to DNA collection and victim penalty assessment mandatory LFOs are not ripe for review until the State attempts to impose sanctions for failure to pay the fee. State v. Shelton, 194 Wn.App.660,670-75, 378 P.3d 230 (2016); State v. Curry, 118 Wn.2d 911, 917-18, 829 P.2d 166 (1992); see State v. Blank, 131 Wn.2d 230, 245, 930 P.2d 1213 (1997) (holding that "it is not fundamentally unfair to impose a repayment obligation without notice and an opportunity to be heard prior to the decision to appeal, provided that before enforced payment or sanctions for nonpayment may be imposed,there is an opportunity to be heard regarding ability to pay"). Pierce has not demonstrated that the State has attempted to sanction him for failing to pay the fees, and thus his claim is not ripe for review. 39