### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OFWASHINGTON, DIVISION ONE

Respondent, No. 79071-4-I V. UNPUBLISHED OPINION BRANDON KENNETH GORHAM,

Appellant. FILED: June 24, 2019

DWYER, J.

— Brandon Gorham was convicted byjuryverdict ofassault in the first degree and hit and run driving. He was sentenced to a standard range term of incarceration. On appeal, Gorham contends thatthe State presented insufficient evidence to support his conviction for assault in the first degree, that the trial court erred by admitting a custodial statement he made notwithstanding violation of his Miranda1 rights, thatthe prosecutor engaged in misconduct during closing argument bytelling thejury his personal opinion ofthe credibility ofa witness, thatthe trial court erred by declining to instructthejury on a lesserincluded offense ofvehicularassault, and thatthe trial court improperly imposed
on Gorham a $250 discretionaryjury demand fee. We remand forthe trial court to strike the discretionaryfee, but, finding no meritto any of Gorham’s other contentions, affirm the conviction.

1 Mirandav. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).No. 79071-4-112

On September 10, 2016, Zachary Lucore, a self-admitted drug addict,2 attempted to visit his parents’ home. However, because of his drug addiction, his familyturned him away atthe door. Subsequently, Lucore walked to afriend’s home on Fredericksburg Way in Vancouver, Washington. Upon arriving, he discovered that his friend did not appearto be at home. Nevertheless, he attempted to connect his cell phone to herWi-Fi network. Meanwhile, Gorham was seated on the front porch ofthe house across the street, listening to music and drinking beerwith his friend Richard Rigneyand anotherperson.3 Gorham lived in the house, which he shared with his mother, Helene Guinette, and Rigney. As he was connecting to the Wi-Fi network, Lucore was accosted by
someone from Gorham’s house. Either Guinette orafriend of hers (who was also inside the house) shouted outto Lucore across the street. Lucore heard a woman’s voice telling him to leave the area in what he considered to be a very rude manner. Irritated, Lucore responded vulgarly, which led to a verbal confrontation between Lucore and Gorham.

2 It is unclearfrom the record whetheror not Lucore had used drugs, specifically methamphetamine, on the day in question. Lucore denies having used any drugs that day. A urine screening taken that day tested positive for methamphetamines, butthe examining physician who performed the screening explained that methamphetamine can stay in a person’s system for up to 72 hours and, therefore, he could not be certain if Lucore had used methamphétamine that day.

~According to one account given by Gorham, he spentthe entire day drinking beerand was quite intoxicated bythe time Lucore arrived at Fredericksburg Way. However, this claim was contradicted both by otherwitnesses, who testified that Gorham had worked on the day in question, ratherthan spending the whole day drinking, and by Gorham himselfwhen he later claimed that he had a very high tolerance foralcohol and was, therefore, not actually able to say whether he was intoxicated. 2No. 79071-4-1/3

Attrial, Lucore and Gorham agreed that, employing indecorous language, they both shouted insults and threats at one another. However, they recalled the specifics ofthe confrontation differently. As Lucore described the argument, Gorham explicitlythreatened to run him overwith his truck, leading Lucoreto threaten to cut Gorham with a knife Lucorewas holding. Although Lucore admitted to holding and verbally threatening Gorham with the knife, he claimed that he never actually brandished ittoward Gorham. As Gorham described the argument, he neverthreatened to run Lucore
overwith his truck. Instead, Gorham claimed, ,Lucore both verballythreatened him with a knife and actually brandished it, threatening to use it both on Gorham and Guinette. Following the verbal altercation, Lucore leftthe area bywalking north on Fredericksburg Way before turning left onto Tennessee Lane. Tennessee Lane is home to the Martinez-Rodriguezfamily, two members ofwhich, Armando and Manuel, were outside as Lucore came walking down theirstreet. Lucore said hello to both Armando and Manuel as he passed. As Lucore proceeded down Tennessee Lane, he placed bluetooth headphones into his ears in orderto listen to music. He then turned north onto Garrison Road. As Lucore leftthe area, Gorham rushed into his home to grab the keys to his truck, a Ford F-250. As he exited the house and jumped into his truck, he
was chased by Guinette, who, presumably alarmed by his behavior, was pleading with him to stop. Ignoring his mother, Gorham drove offand turned

3No. 79071-4-114

onto Tennessee Lane, going in the same direction as Lucore had traveled. As he drove pastArmando and Manuel, they noticed that he was driving at a much higherspeed than was normal forthat street. As Gorham approached the intersection ofTennessee and Garrison, he did not slowdown orstop atthe intersection’s stop sign. Rather, he accelerated as he turned north oqto Garrison. Atthis point, Gorham’s account ofevents differs from those of Lucore’s and otherwitnesses. However, all agree that Lucore was walking north on the east side of Garrison Road when he was struck by Gorham’s vehicle and run over.4 According to Manuel, who witnessed the collision, Lucore was walking approximatelythree feetfrom the curb when Gorham accelerated and drove his truck directlytoward Lucore, hitting him, running him over, swerving awayfrom the curb, and then nearly striking anothervehicle while driving awayfrom the scene.5 According to Gorham, Lucore was notthree feetfrom the curb but, rather, walked out into the middle ofthe road from behind a parked landscaping truck,6 leaving Gorham with insufficienttime to stop before hitting him. However, Gorham admitted that he panicked after hitting Lucore and drove away rather than stopping to assist him afterthe collision.

~Atthe time ofthe incidentthere was no sidewalk on the east side of Garrison Road.

~ Lucore did not recall being struck bythe truck. His recollection was solely ofwalking north along the eastside of Garrison and then waking up on the ground about 10 to 15 feet away from where he had previously been with his belongings scattered about.

6 None ofthe otherwitnesses to the collision orto its aftermath corroborated Gorham’s claim thatthere was a landscaping truck parked on Garrison Road. Similarly, no such truck appears in any ofthe photographs taken ofthe scene by police investigators following the incident. 4No. 79071-4-1/5

After running over Lucore, Gorham returned home, parked his truck in his driveway, and went back inside his house. He did nottell Guinette aboutwhat had occurred butdid inform Rigneythat he had chased down Lucore. Meanwhile, the Martinez-RodrIguezes called 911. Medical personnel arrived and transported Lucore to the hospital. As a result ofthe incident, Lucore suffered from six rib fractures, a punctured lung, vertebral fractures, multiple pelvicfractures, a penis tear, an anal tear, a ruptured bladder, and a fracture of the orbital floor, all ofwhich necessitated multiple surgical interventions overthe
course ofseveral months in the hospital and an additional several months following release. Bythe time Officer Dale Barnette arrived atthe scene, Lucore had been moved into an ambulance. Barnette spoke with medical personnel to identify Lucore and then spoke with witnesses atthe scene and took photographs of Garrison Road. Specifically, he took photosof Lucore’s backpack and belongings left strewn across the road and ofscuffand skid marks along the roadway left behind byvehicles and by Lucore’s body and belongings as they dragged along the roadway as he was run over. The pictures Barnette took upon arriving atthe scene were turned over a few days laterto the Vancouver Police Department’s lead collision investigator, OfficerJeffery Starks, who also wentto the scene to take additional photographs and measurements. He ultimately produced a total station scene diagram to determine and illustrate howthe collision had occurred. Based on his training and experience as a collision investigator, Starks concluded thattire marks he

5No. 79071-4-1/6

observed on the roadway and in pictures ofthe roadwayfrom the day ofthe collision were acceleration marks. He concluded that none ofthe tire marks indicated any attemptto applythe brakes ofthe vehicle before or after it collided with Lucore. Starks also concluded that scuffand scrape marks on the roadway
were the result ofa pedestrian and buckles, backpacks, or belts being dragged along the roadway. He specifically noted that marks on the roadwayfrom clothing were consistentwith the clothing that Lucore was wearing on the day of the collision. Starks’ investigation ultimately led him to Gorham’s home, where he noticed a dent in the front of Gorham’s truck and, afterspeaking with Rigney and Guinette, had Gorham’s truck impounded. He arrested Gorham. Atthe police station, Gorham informed Starks that he had experienced a bad weekend and had been involved in a fight. While awaiting trial, Gorham placed telephone calls from thejail in which he made several statements regarding the incident. In one such call, he stated, in referenceto the incident: “What I do, I do fora good fucking reason

. . . [and I did] what I did fora good reason

. . . and I got threatened.” In anothersuch call, he discussed interacting with his motherjust priorto driving offafter Lucore, stating: “She tried stopping me

. . . I didn’t stop. I mean

— I can saythis on the phone because I don’t give a fuck right now.

. . . [G]uythreatened me, so that’s what happened and she already knows it.” In several othercalls he expressed
an understanding that he had done something wrong and that he felt bad about the incident.

6No. 79071-4-1/7

Gorham was charged with attempted murder in the first degree, hit and
run driving, and assault in the first degree. During the trial, the State called several witnesses, including the aforementioned Martinez-Rodrfguezes, various first responders, Lucore’s doctors, Guinette, Rigney, Starks, and Lucore. In the midst of Starks’ testimony, the trial court excused thejury and held
a CrR 3 5 hearing to determine the admissibility of Gorham’s statement “I had a bad weekend. I got into a fight.” Starks testified that he read Gorham his Miranda rights priorto asking him any questions Starks furtherexplained that he read the rightsfrom awritten form, which he then also had Gorham sign to acknowledge that Gorham had been read his rights and that he understood those rights. According to Starks, the form tracks the police department’s standard Miranda rights language, but he did not specifically explicate thatwhich constituted the department’s standard Miranda language. Subsequently, Starks testified that Gorham signed the acknowledgementform and gave no indication that he did not understand his rights. The trial court ruled thatthe challenged statementwas admissible. Defense counsel did not objectto the ruling.7 During trial, the parties discussed proposed jury instructions with the trial court. Gorham proposed two lesser-included offense instructions, one forassault in the third degree and one forvehicular assault. When the trial court began discussing Gorham’s proposed instructions, he asked Gorham’s attorney if vehicularassault and assault in the third degree were lesser-included offenses of

‘ Infact, earlier in the proceedings, defense counsel stated that he had no problem with Starks testifying to the statement so long as Starks did nottestifyto Gorham’s subsequent statement requesting a lawyer. 7No. 79071-4-118

assault in the first degree. In response, Gorham’s counsel stated, “I can’t say that I agree on vehicularassault. It’s something I’ll look more into. Assault in the third degree, I think is a lesser-degree offense.”8 When specifically asked forargument as to whethervehicular assault is a lesser-included offense ofassault in the firstdegree, Gorham’s counsel responded bystating, “What I would like to do, Your Honor, is simply offer it as an instruction still. I will letthe Court make its ruling atthis time. If I feel there is
a need to posit an objection on the record., I shall do so.” When the trial court subsequentlydeclined to give a lesser-included instruction on vehicular assault, Gorham’s lawyer objected by stating, “[F}orthe record I will objectto its not being included in thejury package thatthejurywill be able to consider, butthat’s all, Your Honor.” Following the presentation ofevidence, the trial court instructed thejury and the parties presented their closing arguments. The defense admitted that Gorham had committed the hit and run but denied that he had intentionally run into Lucore with his truck. During the State’s closing argument,9the following exchange occurred between the prosecutor, defense counsel, and the court:

[MR. BARTLETT]: And then you have Helene Guinette and Richard Rigney. Now a person could saytheywould be biased, thattheywould be biased towards Mr. Gorham, but I submitthat they came in and did their absolute bestto tell the truth aboutwhat happened as well. They had every opportunitywhile this case was pending to, you know and while theytestified, to shade whatthey remembered to, you know, to give Mr. Gorham the benefit ofthe doubtwhere maybe he didn’t deserve it. But instead, they came in

8 The trial court ultimately gave the requested instruction on assault in the third degree.

~ Priorto closing arguments, thejury was instructed that “[y]ou are the solejudges ofthe credibility ofeach witness. You are also the solejudges ofthe value orweightto be given to the testimony of each witness.” 8No. 79071-4-1/9
and quite ster

— not sternly, but strongly, you know, stuckto the memorythatthey have today aboutwhat happened. So when Mr. Gorham is telling you he had

—thatthere was three 18-packs of beerand he had been drinking all day, weigh that againstwhat his motherand Richard Rigneysaid, where they

— his motherwas adamantthat he had worked that day. Would it have been easierfor herto say, “Well, I could definitely be wrong about thattoday. I might not know if he worked that day or not. He perhaps had been drinking all day”? Thatwould have been easy

— thatwould have been the easything for herto do, but she told the truth, and she

— MR. RAMSAY: Objection, Your Honor; comment on the truth ofwhatwitnesses say. THE COURT: You will determinewhatthe truth is. MR. BARTLETT: Correct. Well, obviously. Sorry, Your Honor.She did her bestto tell the truth and thatwas what she remembered, that on that

— on the day in question, and she was adamant itwas a Saturday and that’s what all the testimony has been, it’s been a Saturday, that Brandon worked, so he couldn’t have been home drinking all day. Thejuryfound Gorham guilty on the assault in the first degree and hit and
run charges but acquitted him on the attempted murdercharge. Subsequently, the trial court sentenced Gorham to a standard range sentence of 124 months of confinement. Gorham then timelyfiled a notice ofappeal to Division Two ofthe Court ofAppeals, which transferred the matterto us for resolution.

Gorham contends thatthe State presented insufficient evidence to support his conviction forassault in the firstdegree, thatthe trial court erred by admitting
a statement in violation of his Miranda rights, thatthe prosecutor engaged in misconduct during closing argument by giving thejury his personal opinion on

9No. 79071-4-1/10

the credibility ofa witness, thatthe trial court erred by declining to give a vehicular assault as a lesser-included offense instruction, and thatthe trial court improperly imposed ajury demand fee on Gorham. In response, the State contendsthat sufficient evidence supports Gorham’s conviction forassault in the first degree, that sufficient evidence established that Gorham received his Miranda warnings, thatthe prosecutordid not commit misconduct because he
neverstated his personal opinion regarding the credibihty ofa witness, and that Gorham waived his right to appeal from the trial court’s decision notto give a vehicular assault instruction. The State concedes thatthe trial court’s decision to impose ajury demand fee must be reversed. Finding no meritto any of Gorham’s othercontentions, we remand forthe trial courtto strike the discretionaryjury demand fee, but affirm the conviction. A Gorham first contends that insufficient evidence supports his conviction for assault in the first degree. This is so, Gorham asserts, because a constitutionally insufficient quantum ofevidence established that he acted with the intentto inflict great bodily harm when he struck and ran over Lucore with his truck. We disagree. ‘The testfordetermining the sufficiency ofthe evidence is whether, after viewing the evidence in the light mostfavorable to the State, any rational trierof fact could have found guilt beyond a reasonable doubt.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980)). “This inquirydoes not require the reviewing court

10No. 79071-4-I/Il

to determine whetherit believes the evidence attrial established guilt beyond a reasonable doubt.” Green, 94 Wn.2d at 221. “Instead, the relevant question is whether, afterviewing the evidence in the light mostfavorableto the prosecution, any rational trieroffact could have found the essential elements ofthe crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,61 L. Ed. 2d 560 (1979). “A claim of insufficiency admits the truth ofthe State’s evidence and all inferences that reasonably can be drawn therefrom.” Salinas, 119 Wn.2d at 201 (citing State v Theroff, 25 Wn App 590, 593, 608 P 2d 1254, affd, 95 Wn 2d 385, 622 P.2d 1240 (1980)). Atrieroffact “may infer criminal intentfrom a defendant’s conductwhere it is ‘plainly indicated as a matterof logical probability

“ State v Bright, 129 Wn 2d 257, 270, 916 P 2d 922 (1996) (quoting State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980)). In a sufficiency analysis, “[c]ircumstantial evidence and direct evidence carry equal weight.” State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004) (citing Delmarter, 94Wn.2d at 638). RCW 9A.36.01 I sets forth the crime ofassault in the first degree: (1) A person is guilty ofassault in the first degree if he or she, with intentto inflict great bodily harm: (a) Assaults anotherwith a firearm orany deadlyweapon or by anyforce or means likelyto produce great bodily harm ordeath; or (b) Administers, exposes, ortransmits to or causes to be taken by another, poison, the human mmunodeficiencyvirus as defined in chapter70.24 RCW, orany otherdestructive or noxious substance; or (c) Assaults another and inflicts great bodily harm. (2) Assault in the first degree is a class Afelony.

11No. 79071-4-1/12
Gorham concedes thatthe State presented sufficient evidence to establish each element ofassault in the first degree exceptforthe requirement of proof that Gorham acted with the intentto inflict great bodily harm. This is so, Gorham asserts, because the only evidence adduced bythe State to prove Gorham’s intentwas Lucore’s testimonythat Gorham threatened to run him overwith his truck According to Gorham, this evidence is insufficient because Lucore admitted to being a paranoid schizophrenicwho abused mind-altering drugs. However, such a contention is not a challenge to the sufficiency ofthe evidence
so much as it is a disagreementwith theJury’s decision to credit Lucore’s testimony instead of Gorham’s. Thejurywas the solejudge ofthe credibility ofthe evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). The record is replete with evidence consistentwith thejury’s determination notto credit Gorham’s testimony. Indeed, Gorham’s testimony regarding howthe incident occurred, whetherthere was a landscaping truck obscuring his view of Lucore, and whether he had been at home drinking all day or had gone to work, was all contradicted bythe State’s eyewitnesses to the incident, Guinette, and Rigney. In fact, Gorham contradicted his own testimony regarding his level of intoxication atthe time ofthe incident. Thejury did not lackfor reasons to choose notto credit Gorham’stestimony. Furthermore, not only did the State present evidence of Gorham’s direct verbal threatto run over Lucore with his truck, it also presented eyewitness testimonythat Gorham accelerated to hit Lucore coupled with physical evidence

12No. 79071-4-1113

oftire acceleration marks (and the absence of brake marks) thattogether strongly support an inference that Gorham intentionally drove his truck into and
over Lucore. Additionally, while awaiting trial, Gorham made statements overthe telephone explaining that he ran over Lucore fora good reason, which further supports an inference that he intentionallystruck Lucorewith his truck. A constitutionally sufficient quantum ofevidence supported theJury’s verdict ofguilt
on the assault in the first degree charge.B Gorham next contends thatthe trial court erred by admitting his statement, ‘1 had a bad weekend. I got into afight.” This is so, Gorham asserts, because insufficient evidence was presented during the CrR 3.5 hearing to showthat Gorham had been properly advised of his Miranda rights. Specifically, Gorham contends that Officer Starks’ testimony during the CrR 3.5 hearing that he had read Gorham “standard” Miranda rights from a written police form was legally insufficient and thatwithouttestimony as to the specific rights read, the challenged statement should have~ been excluded. In response, the State avers thatthe testimony presented by Starks.was sufficient.1° The Fifth Amendment to the United States Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself.”

10 The State also contends that Gorham waived his right to raise this issue on appeal because he did not objectto the admission ofthe statement during the trial court proceedings. Butthe State has the burden of proving the voluntariness of Gorham’s statements by a preponderance ofthe evidence. State v. Athan, 160 Wn.2d 354, 380, 158 P.3d 27 (2007). The trial court held a CrR 3.5 hearing to determine voluntariness, weighed the evidence presented, and ruled that Gorham’s statement about having a bad weekend and getting into a fightwas voluntary. Gorham may contestthis ruling on appeal on the ground thatthe State presented insufficient evidence to meet its burden of proof. 13No. 79071-4-1/14

To protect this right, the United States Supreme Court, in Miranda v. Arizona, set forth procedural requirements to protectsuspects from the use oftheir involuntary statements againstthem attrial.

.~ 384 U.S. 436, 444, 86 5. Ct. 1602, 16 L. Ed. 2d 694 (1966). [A] suspect in custody “must be warned priorto any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the rightto the presence ofan attorney, and that if he cannot afford an attorney one.will be appointed for him priorto any questioning if he ~ desires.” Statev. Brown, 132 Wn.2d 529, 582, 940 P.2d 546 (1997) (quoting Miranda, 384 U.S. at479). Failure to provide a suspectwith any ofthe required Miranda warnings “results in exclusion ofany statements given bythe suspect.” Brown, 132 Wn.2d at 582 (citing Oregon v. Elstad, 470 U.S. 298, 306-08, 105 S. Ct. 1285,84 L. Ed. 2d 222 (1985)). “However, there is no requirementthatthe warnings be given in the precise language stated in Miranda.” Brown, 132 Wn.2d at 582 (citing Duckworth v. Eagan, 492 U.S. 195, 202-04, 109 S. Ct. 2875, 106 L. Ed. 2d 166 (1989)). When the State asserts thatthe defendantwaived his
or her Miranda rights, the State “bears the burden ofshowing a knowing, voluntary, and intelligentwaiver of Miranda rights by a preponderance ofthe evidence.”11 State v. Athan, 160 Wn.2d 354, 380, 158 P.3d 27 (2007). The evidence adduced during the CrR 3.5 hearing herein satisfied the preponderance ofthe evidence standard. OfficerStarks testified that he advised Gorham of his Miranda rights and that he did so by reading the Miranda rights

11 A preponderance ofthe evidence means “more likelythan not.” ~ In re Marriage of Freeman, 169 Wn.2d 664, 673, 239 P.3d 557 (2010). 14No. 79071-4-1/15

from a standard police form. The officers uncontradicted testimonyweighs in favor ofan inference thatthe warnings required by Miranda were, in fact, provided to Gorham. The record does not provide any indication thatthe standard Miranda rights language utilized by Officer Starks was incomplete or that it did not comportwith the requirements setforth in Miranda.12 Indeed, defense counsels ready acceptance ofthe standard language testimony and his decision notto challenge Officer Starks to delineate the specifics ofthe advisement read to Gorham strongly support the opposite inference—that Gorham’s afforney knewthatthe warnings read from the standard police form referenced herein satisfied the requirements of Miranda.13 Officer Starks testified that he advised the defendant ofthe required Miranda warnings. He further testified that he did so by resortto a standard form, created forthis purpose. This evidence outweighed the contrary evidence adduced by Gorham—which
was nothing. Thus, the evidence presented tended to prove that itwas more likelythan notthat Gorham was informed ofthe required Miranda warnings and that his subsequentstatement regarding hisweekend encounterwith Lucore was voluntary.

12 During the CrR 3.5 hearing, Gorham’s attorney had the opportunity to, but did not, ask Starks to specifythe exact language ofthe warnings provided to Gorham. Nordid he contesttheir sufficiency.

13 Perhapswhen the language of Mirandawarnings was freshly minted from the United States Supreme Court the inference desired by Gorham would have been appropriate However, it has been over 50 years since the advent of Mirandawarnings, and their use has become ubiquitous in not only our nation’s police departments and courtrooms, but also in cinema and television programming. Indeed, much ofourcase law refers to the Miranda warnings withoutspecifically delineating the precise information required to be conveyed thereby. Thus, it is not obvious that Gorham’s defense counsel, the trialjudge, and everyone else in the courtroom, failed to comprehend what Starks meantwhen he testified that he used his department’s standard Mirandawarnings language.15No. 79071-4-1116
C Next, Gorham contends thatthe prosecutor engaged in misconductwhile delivering his closing argument. This is so, he avers, because the prosecutor stated his personal opinion on the credibility ofa witness. In response, the State asserts that, within the context ofthe closing argument, the comments Gorham identifies as the expression ofa personal opinion are merely an expression ofan inference drawn from marshalling the evidence. The State has the better argument. “In closing argument, a prosecutor is afforded wide latitude to draw and express reasonable inferences from the evidence.” State v. Reed, 168 Wn. App. 553, 577, 278 P.3d 203 (2012) (citing Statev. Hoffman, 116 Wn.2d 51, 94-95, 804 P 2d 577 (1991)) However, “[ijmpropervouching occurs when the prosecutor expresses a personal belief in the veracity ofa witness or indicates that evidence not presented attrial supports the testimony ofawitness.” State v. Thorgerson, 172 Wn.2d 438, 443, 258 P.3d 43 (2011) (citing State v. Ish, 170 Wn.2d 189, 196, 241 P.3d 389 (2010)). “A defendant claiming prosecutorial misconduct must showthatthe prosecutor’s conductwas both improper and prejudicial in the context ofthe entire record and circumstances attrial.” State v. Miles, 139 Wn. App. 879, 885, 162 P.3d 1169 (2007). We review a prosecutor’s conduct during closing argument “in the context ofthe total argument, the issues in the case, the evidence addressed in the argument, and the instructions given.” State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994). It is not uncommon forstatements to be made in final arguments which, standing alone, sound like an expression of personal
16No. 79071-4-1/17 opinion. However, when judged in the light ofthe total argument, the issues in the case, the evidence discussed during the argument, and the court’s instructions, it is usually apparent that counsel is trying to convince thejury ofcertain ultimate facts and conclusions to be drawn from the evidence. Prejudicial errordoes not occur until such time as it is clear and unmistakable that counsel is not arguing an inference from the evidence, but is expressing a personal opinion. State v. Papadoioulos, 34 Wn. App. 397, 400, 662 P.2d 59 (1983). Once a defendant establishes that a prosecutor’s statements are improper, the defendant must establish actual prejudice. State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012). “Ifthe defendant objected attrial, the defendant must showthatthe prosecutor’s misconduct resulted in prejudicethat had a substantial likelihood ofaffecting thejury’s verdict.” Emery, 174Wn.2d at 760 (citing State v. Anderson, 153 Wn. App. 417, 427, 220 P.3d 1273 (2009)). Gorham contends thatthe prosecutor improperly expressed a personal opinion on the veracity of Guinette’s testimony by remarking “but she told the truth” and ‘[s]he did her bestto tell the truth.” While these statements may—in isolation—appearto be improper, the addition ofcontext shows them to be otherwise: [MR. BARTLETT]: And then you have Helene Guinette and Richard Rigney. Nowa person could saytheywould be biased, thattheywould be biased towards Mr. Gorham, but I submitthat they came in and did their absolute bestto tell the truth aboutwhat happened as well They had every opportunitywhile this case was pending to, you know

— and while theytestified, to shade whatthey remembered to, you know, to give Mr Gorham the benefit ofthe doubtwhere maybe he didn’t deserve it But instead, they came in and quite ster

— not sternly, but strongly, you know, stuckto the memorythatthey have today aboutwhat happened. So when Mr. Gorham is telling you he had

—thatthere was three 18-packs of beer and he had been drinking all day, weigh that againstwhat his mother and Richard Rigney said, where they

— his
17No. 79071-4-1/18
motherwas adamantthat he had worked that day. Would it have been easierfor herto say, “Well, I could definitely be wrong about thattoday. I might not know if he worked that day or not. He perhaps had been drinking all day”? Thatwould have been easy

— thatwould have been the easything for herto do, but she told the truth, and she

— MR. RAMSAY: Objection, Your Honor; comment on the truth ofwhatwitnesses say. THE COURT: You will determine whatthe truth is. MR. BARTLETT: Correct. Well, obviously. Sorry, Your Honor.She did her bestto tell the truth and thatwas what she remembered, that on that

—on the day in question, and she was adamant itwas a Saturday and that’s what all the testimony has been, it’s been a Saturday, that Brandon worked, so he couldn’t / have been home drinking all day. “[Wjhenjudged in the light ofthe total argument, the issues in the case, the evidence discussed during the argument, and the court’s instructions,” Papadopoulos, 34 Wn. App. at400, it is apparent thatthe prosecutor herein was merelytrying to convince thejury ofthe ultimate conclusion that Guinette’s testimonywas truthful. Specifically, the prosecutor highlighted an inference of truthfulness thatthejury could drawfrom Guinette’s refusal to change her recollection ofevents—that Gorham had goneto work on the day in question and had not spentthe whole day drinking—in the face ofcross-examination. Furthermore, even ifthe prosecutor had improperly expressed his personal opinion, Gorham has failed to demonstrate prejudice that had a substantial likelihood ofaffecting thejury’s verdict. Guinette’stestimonythat Gorham had not been drinking all day supported an inference that he was not intoxicated atthe time ofthe incident. This inference was also supported by
18No. 79071-4-1/19

Rigney’stestimony regarding the amount ofalcohol Gorham consumed thatday and by Gorham’s own testimony refuting that he was necessarily intoxicated
even if he had been drinking a lot because he had developed “a pretty high alcohol tolerance.” Given the otherevidence, it is farfrom substantially likely that, had the prosecutor improperly commented on Guinette’s credibility regarding Gorham’s drinking, such comment affected thejury’s verdict. D Gorham next contendsthatthe trial court erred when it declined to give a jury instruction forvehicularassault as a lesser-included offense ofthe crime of assault in the first degree. Because Gorham did not properly preserve this claim oferrorforappeal, we decline to address the merits of his contention. We generallywill not consideran issue, theory, or argument not presented attrial State v McFarland, 127 Wn 2d 322, 332-33, 899 P 2d 1251 (1995) (citing RAP 2.5(a)).14 This includes any issue forwhich inadequate argument
was presented to the trial court. Int’l Ass’n of Fire Fighters, Local 46 v. City of Everett, 146 Wn.2d 29, 36-37, 42 P.3d 1265 (2002). “To be adequate for appellate review, the argument should be more than fleeting.” Statev. Lazcano, 188 Wn. App. 338, 355, 354 P.3d 233 (2015). CrR 6.15(c) amplifies this general rule by requiring thatwhen a party objects to the “refusal to give a requested instruction” it “shall state the reasons

14 Under RAP 2.5(a)(3), we may consider manifest errors raised forthe firsttime on appeal that affect a defendant’s constitutional rights, butthe failure to instruct on a lesser included offense does not constitute manifest constitutional error. State v. O’Hara, 167 Wn.2d 91, 101, 217 P.3c1 756 (2009) (citing State v. Kwan Fal Mak, 105 Wn.2d 692, 745-49, 718 P.2d 407 (1986)). 19No. 79071-4-1120

forthe objection.” Our Supreme Court has cited this rule when refusing to review “asserted instructional errors to which no meaningful exceptionswere taken at trial.” State v. Scott, 110 Wn.2d 682, 686, 757 P.2d 492 (1 988). Although Gorham proposed a vehicularassault instruction and objected
on the record when the trial court declined to give it, he presented no legal argumentto support his proposed instruction. In fact, when the trialjudge first asked Gorham whethervehicular assault and assault in the third degreewere lesser-included offenses ofassault in the first degree, counsel for Gorham stated, “I can’t saythat I agree on vehicular assault.” When the trialjudge subsequently asked counsel for Gorham to present argument in support of his requested vehicular assault instruction, counsel declined to do so. Similarly, he declined to explain his reasons forobjecting when the trial court declined to give his requested instruction.15 Because the record lacks any meaningful exception to the trial court’s refusal to give Gorham’s requested vehicular assault instruction, Gorham has waived his rightto challenge that ruling on appeal. E Finally, Gorham contends, and the State concedes, thatthe trial court erred by imposing on Gorham a discretionaryjury demand fee of$250. In 2018, the law on legal financial obligations was changed to categorically

15The requirementthattrial counsel present reasons forany objection assures thattrial judges have the opportunityto correct any errors in proceedings. ~ State v. Strine, 176 Wn.2d 742, 749, 293 P.3d 1177 (2013) (quoting New Meadows Holding Co. v. Wash. Water Power Co., 102 Wn.2d 495, 498, 687 P.2d 212 (1984)). Waiting to explain the reasons foran objection until the case is on appeal denies the trialjudge this opportunity. Thus, it is not sufficientfortrial counsel to simply state an objection; counsel mustalso provide sufficient explanation supporting the objection to give the trial court a true opportunityto correct any alleged error. 20No. 79071-4-1/21

prohibitthe imposition ofany discretionary legal financial obligations on indigent defendants. LAWS OF 2018, ch. 269, 

### § 6(3). Ajury demand fee is a discretionary costthat courts cannot impose on indigent defendants. RCW 10.01.160(2)-(3). Our Supreme Court has held thatthis change in the law applies prospectivelyto
cases on appeal. State v. Ramirez, 191 Wn.2d 732, 747-50, 426 P.3d 714 (2018). The trial court herein determined that Gorham is indigent. Thus, itwas improperforthe trial courtto impose the discretionary $250jury demand fee. This assessment must be stricken on remand. Affirmed in part, reversed in part, and remanded.

We concur:

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