IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

DIVISION ONE

Respondent,

No. 79071-4-I

V.

UNPUBLISHED OPINION

BRANDON KENNETH GORHAM,

Appellant. FILED: June 24, 2019

DWYER, J. — Brandon Gorham was convicted by jury verdict of assault in

the first degree and hit and run driving. He was sentenced to a standard range

term of incarceration. On appeal, Gorham contends that the 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, that the prosecutor engaged in misconduct during

closing argument by telling the jury his personal opinion of the credibility of a

witness, that the trial court erred by declining to instruct the jury on a lesserincluded offense of vehicular assault, and that the trial court improperly imposed

on Gorham a $250 discretionary jury demand fee. We remand for the trial court

to strike the discretionary fee, but, finding no merit to any of Gorham’s other

contentions, affirm the conviction.

1 Miranda v. 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

family turned him away at the door. Subsequently, Lucore walked to a friend’s

home on Fredericksburg Way in Vancouver, Washington. Upon arriving, he

discovered that his friend did not appear to be at home. Nevertheless, he

attempted to connect his cell phone to her Wi-Fi network.

Meanwhile, Gorham was seated on the front porch of the house across

the street, listening to music and drinking beer with his friend Richard Rigney and

another person.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 or a friend of hers (who was

also inside the house) shouted out to 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 unclear from the record whether or 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, but the 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 spent the entire day drinking beer and

was quite intoxicated by the time Lucore arrived at Fredericksburg Way. However, this claim was

contradicted both by other witnesses, who testified that Gorham had worked on the day in

question, rather than spending the whole day drinking, and by Gorham himself when he later

claimed that he had a very high tolerance for alcohol and was, therefore, not actually able to say

whether he was intoxicated.

2
No. 79071-4-1/3

At trial, Lucore and Gorham agreed that, employing indecorous language,

they both shouted insults and threats at one another. However, they recalled the

specifics of the confrontation differently.

As Lucore described the argument, Gorham explicitly threatened to run

him over with his truck, leading Lucore to threaten to cut Gorham with a knife

Lucore was holding. Although Lucore admitted to holding and verbally

threatening Gorham with the knife, he claimed that he never actually brandished

it toward Gorham.

As Gorham described the argument, he never threatened to run Lucore

over with his truck. Instead, Gorham claimed, ,Lucore both verbally threatened

him with a knife and actually brandished it, threatening to use it both on Gorham

and Guinette.

Following the verbal altercation, Lucore left the area by walking north on

Fredericksburg Way before turning left onto Tennessee Lane. Tennessee Lane

is home to the Martinez-Rodriguez family, two members of which, Armando and

Manuel, were outside as Lucore came walking down their street. 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 order to listen

to music. He then turned north onto Garrison Road.

As Lucore left the 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 off and turned

3
No. 79071-4-114

onto Tennessee Lane, going in the same direction as Lucore had traveled. As

he drove past Armando and Manuel, they noticed that he was driving at a much

higher speed than was normal for that street. As Gorham approached the

intersection of Tennessee and Garrison, he did not slow down or stop at the

intersection’s stop sign. Rather, he accelerated as he turned north oqto

Garrison.

At this point, Gorham’s account of events differs from those of Lucore’s

and other witnesses. 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

approximately three feet from the curb when Gorham accelerated and drove his

truck directly toward Lucore, hitting him, running him over, swerving away from

the curb, and then nearly striking another vehicle while driving away from the

scene.5 According to Gorham, Lucore was not three feet from the curb but,

rather, walked out into the middle of the road from behind a parked landscaping

truck,6 leaving Gorham with insufficient time to stop before hitting him. However,

Gorham admitted that he panicked after hitting Lucore and drove away rather

than stopping to assist him after the collision.

~ At the time of the incident there was no sidewalk on the east side of Garrison Road.

~ Lucore did not recall being struck by the truck. His recollection was solely of walking

north along the east side 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 of the other witnesses to the collision or to its aftermath corroborated Gorh am’s

claim that there was a landscaping truck parked on Garrison Road. Similarly, no such truck

appears in any of the photographs taken of the scene by police investigators following the

incident.

4
No. 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 not tell Guinette about what

had occurred but did inform Rigney that he had chased down Lucore.

Meanwhile, the Martinez-RodrIguezes called 911. Medical personnel

arrived and transported Lucore to the hospital. As a result of the incident, Lucore

suffered from six rib fractures, a punctured lung, vertebral fractures, multiple

pelvic fractures, a penis tear, an anal tear, a ruptured bladder, and a fracture of

the orbital floor, all of which necessitated multiple surgical interventions over the

course of several months in the hospital and an additional several months

following release.

By the time Officer Dale Barnette arrived at the scene, Lucore had been

moved into an ambulance. Barnette spoke with medical personnel to identify

Lucore and then spoke with witnesses at the scene and took photographs of

Garrison Road. Specifically, he took photosof Lucore’s backpack and

belongings left strewn across the road and of scuff and skid marks along the

roadway left behind by vehicles and by Lucore’s body and belongings as they

dragged along the roadway as he was run over.

The pictures Barnette took upon arriving at the scene were turned over a

few days later to the Vancouver Police Department’s lead collision investigator,

Officer Jeffery Starks, who also went to the scene to take additional photographs

and measurements. He ultimately produced a total station scene diagram to

determine and illustrate how the collision had occurred. Based on his training

and experience as a collision investigator, Starks concluded that tire marks he

5
No. 79071-4-1/6

observed on the roadway and in pictures of the roadway from the day of the

collision were acceleration marks. He concluded that none of the tire marks

indicated any attempt to apply the brakes of the vehicle before or after it collided

with Lucore. Starks also concluded that scuff and scrape marks on the roadway

were the result of a pedestrian and buckles, backpacks, or belts being dragged

along the roadway. He specifically noted that marks on the roadway from

clothing were consistent with 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, after speaking with Rigney and

Guinette, had Gorham’s truck impounded. He arrested Gorham. At the 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 the jail in which

he made several statements regarding the incident. In one such call, he stated,

in reference to the incident: “What I do, I do for a good fucking reason . . . [and I

did] what I did for a good reason . . . and I got threatened.” In another such call,

he discussed interacting with his mother just prior to driving off after Lucore,

stating: “She tried stopping me . . . I didn’t stop. I mean — I can say this on the

phone because I don’t give a fuck right now. . . . [G]uy threatened me, so that’s

what happened and she already knows it.” In several other calls he expressed

an understanding that he had done something wrong and that he felt bad about

the incident.

6
No. 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 the jury 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 prior to asking him any questions Starks further explained that he

read the rights from a written 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 that which

constituted the department’s standard Miranda language. Subsequently, Starks

testified that Gorham signed the acknowledgement form and gave no indication

that he did not understand his rights. The trial court ruled that the challenged

statement was admissible. Defense counsel did not object to the ruling.7

During trial, the parties discussed proposed jury instructions with the trial

court. Gorham proposed two lesser-included offense instructions, one for assault

in the third degree and one for vehicular assault. When the trial court began

discussing Gorham’s proposed instructions, he asked Gorham’s attorney if

vehicular assault and assault in the third degree were lesser-included offenses of

‘ In fact, earlier in the proceedings, defense counsel stated that he had no problem with

Starks testifying to the statement so long as Starks did not testify to Gorham’s subsequent

statement requesting a lawyer.

7
No. 79071-4-118

assault in the first degree. In response, Gorham’s counsel stated, “I can’t say

that I agree on vehicular assault. It’s something I’ll look more into. Assault in the

third degree, I think is a lesser-degree offense.”8

When specifically asked for argument as to whether vehicular assault is a

lesser-included offense of assault in the first degree, Gorham’s counsel

responded by stating, “What I would like to do, Your Honor, is simply offer it as

an instruction still. I will let the Court make its ruling at this time. If I feel there is

a need to posit an objection on the record., I shall do so.” When the trial court

subsequently declined to give a lesser-included instruction on vehicular assault,

Gorham’s lawyer objected by stating, “[F}or the record I will object to its not being

included in the jury package that the jury will be able to consider, but that’s all,

Your Honor.”

Following the presentation of evidence, the trial court instructed the jury

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,9 the 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 say they would be biased,

that they would be biased towards Mr. Gorham, but I submit that

they came in and did their absolute best to tell the truth about what

happened as well. They had every opportunity while this case was

pending to, you know and while they testified, to shade what they

remembered to, you know, to give Mr. Gorham the benefit of the

doubt where 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.

~ Prior to closing arguments, the jury was instructed that “[y]ou are the sole judges of the

credibility of each witness. You are also the sole judges of the value or weight to be given to the

testimony of each witness.”

8
No. 79071-4-1/9

and quite ster — not sternly, but strongly, you know, stuck to the

memory that they have today about what happened.

So when Mr. Gorham is telling you he had — that there was

three 18-packs of beer and he had been drinking all day, weigh that

against what his mother and Richard Rigney said, where they — his

mother was adamant that he had worked that day. Would it have

been easier for her to say, “Well, I could definitely be wrong about

that today. I might not know if he worked that day or not. He

perhaps had been drinking all day”? That would have been easy —

that would have been the easy thing for her to do, but she told the

truth, and she —

MR. RAMSAY: Objection, Your Honor; comment on the truth

of what witnesses say.

THE COURT: You will determine what the truth is.

MR. BARTLETT: Correct. Well, obviously. Sorry, Your

Honor.

She did her best to tell the truth and that was what she

remembered, that on that — on the day in question, and she was

adamant it was 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.

The jury found Gorham guilty on the assault in the first degree and hit and

run charges but acquitted him on the attempted murder charge. Subsequently,

the trial court sentenced Gorham to a standard range sentence of 124 months of

confinement. Gorham then timely filed a notice of appeal to Division Two of the

Court of Appeals, which transferred the matter to us for resolution.

Gorham contends that the State presented insufficient evidence to support

his conviction for assault in the first degree, that the trial court erred by admitting

a statement in violation of his Miranda rights, that the prosecutor engaged in

misconduct during closing argument by giving the jury his personal opinion on

9
No. 79071-4-1/10

the credibility of a witness, that the trial court erred by declining to give a

vehicular assault as a lesser-included offense instruction, and that the trial court

improperly imposed a jury demand fee on Gorham. In response, the State

contends that sufficient evidence supports Gorham’s conviction for assault in the

first degree, that sufficient evidence established that Gorham received his

Miranda warnings, that the prosecutor did not commit misconduct because he

never stated his personal opinion regarding the credibihty of a witness, and that

Gorham waived his right to appeal from the trial court’s decision not to give a

vehicular assault instruction. The State concedes that the trial court’s decision to

impose a jury demand fee must be reversed. Finding no merit to any of

Gorham’s other contentions, we remand for the trial court to strike the

discretionary jury 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 of evidence established that he acted with the intent to inflict

great bodily harm when he struck and ran over Lucore with his truck. We

disagree.

‘The test for determining the sufficiency of the evidence is whether, after

viewing the evidence in the light most favorable to the State, any rational trier of

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 inquiry does not require the reviewing court

10
No. 79071-4-I/Il

to determine whether it believes the evidence at trial established guilt beyond a

reasonable doubt.” Green, 94 Wn.2d at 221. “Instead, the relevant question is

whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the 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 of the 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)). A trier of fact “may infer criminal intent from a

defendant’s conduct where it is ‘plainly indicated as a matter of 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,

94 Wn.2d at 638).

RCW 9A.36.01 I sets forth the crime of assault in the first degree:

(1) A person is guilty of assault in the first degree if he or

she, with intent to inflict great bodily harm:

(a) Assaults another with a firearm or any deadly weapon or

by any force or means likely to produce great bodily harm or death;

or

(b) Administers, exposes, or transmits to or causes to be

taken by another, poison, the human mm unodeficiency virus as

defined in chapter 70.24 RCW, or any other destructive or noxious

substance; or

(c) Assaults another and inflicts great bodily harm.

(2) Assault in the first degree is a class A felony.

11
No. 79071-4-1/12

Gorham concedes that the State presented sufficient evidence to establish

each element of assault in the first degree except for the requirement of proof

that Gorham acted with the intent to inflict great bodily harm. This is so, Gorham

asserts, because the only evidence adduced by the State to prove Gorham’s

intent was Lucore’s testimony that Gorham threatened to run him over with his

truck According to Gorham, this evidence is insufficient because Lucore

admitted to being a paranoid schizophrenic who abused mind-altering drugs.

However, such a contention is not a challenge to the sufficiency of the evidence

so much as it is a disagreement with the Jury’s decision to credit Lucore’s

testimony instead of Gorham’s.

The jury was the sole judge of the credibility of the evidence. State v.

Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). The record is replete with

evidence consistent with the jury’s determination not to credit Gorham’s

testimony. Indeed, Gorham’s testimony regarding how the incident occurred,

whether there 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 by the State’s eyewitnesses to the incident, Guinette, and Rigney.

In fact, Gorham contradicted his own testimony regarding his level of intoxication

at the time of the incident. The jury did not lack for reasons to choose not to

credit Gorham’s testimony.

Furthermore, not only did the State present evidence of Gorham’s direct

verbal threat to run over Lucore with his truck, it also presented eyewitness

testimony that Gorham accelerated to hit Lucore coupled with physical evidence

12
No. 79071-4-1113

of tire acceleration marks (and the absence of brake marks) that together

strongly support an inference that Gorham intentionally drove his truck into and

over Lucore. Additionally, while awaiting trial, Gorham made statements over the

telephone explaining that he ran over Lucore for a good reason, which further

supports an inference that he intentionally struck Lucore with his truck. A

constitutionally sufficient quantum of evidence supported the Jury’s verdict of guilt

on the assault in the first degree charge.

B

Gorham next contends that the trial court erred by admitting his statement,

‘1 had a bad weekend. I got into a fight.” This is so, Gorham asserts, because

insufficient evidence was presented during the CrR 3.5 hearing to show that

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 that without testimony as to the specific rights read, the

challenged statement should have~ been excluded. In response, the State avers

that the 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 object to the admission of the statement during the trial court proceedings.

But the State has the burden of proving the voluntariness of Gorham’s statements by a

preponderance of the 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 fight was

voluntary. Gorham may contest this ruling on appeal on the ground that the State presented

insufficient evidence to meet its burden of proof.

13
No. 79071-4-1/14

To protect this right, the United States Supreme Court, in Miranda v. Arizona, set

forth procedural requirements to protect suspects from the use of their

involuntary statements against them at trial. .~ 384 U.S. 436, 444, 86 5. Ct.

1602, 16 L. Ed. 2d 694 (1966).

[A] suspect in custody “must be warned prior to 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 right to the

presence of an attorney, and that if he cannot afford an attorney

one .will be appointed for him prior to any questioning if he ~

desires.”

Statev. Brown, 132 Wn.2d 529, 582, 940 P.2d 546 (1997) (quoting Miranda, 384

U.S. at 479). Failure to provide a suspect with any of the required Miranda

warnings “results in exclusion of any statements given by the 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 requirement that the

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 that the defendant waived his

or her Miranda rights, the State “bears the burden of showing a knowing,

voluntary, and intelligent waiver of Miranda rights by a preponderance of the

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 of the evidence standard. Officer Starks testified that he advised

Gorham of his Miranda rights and that he did so by reading the Miranda rights

11 A preponderance of the evidence means “more likely than not.” ~In re Marriage of

Freeman, 169 Wn.2d 664, 673, 239 P.3d 557 (2010).

14
No. 79071-4-1/15

from a standard police form. The officers uncontradicted testimony weighs in

favor of an inference that the warnings required by Miranda were, in fact,

provided to Gorham. The record does not provide any indication that the

standard Miranda rights language utilized by Officer Starks was incomplete or

that it did not comport with the requirements set forth in Miranda.12 Indeed,

defense counsels ready acceptance of the standard language testimony and his

decision not to challenge Officer Starks to delineate the specifics of the

advisement read to Gorham strongly support the opposite inference—that

Gorham’s afforney knew that the warnings read from the standard police form

referenced herein satisfied the requirements of Miranda.13 Officer Starks testified

that he advised the defendant of the required Miranda warnings. He further

testified that he did so by resort to a standard form, created for this purpose.

This evidence outweighed the contrary evidence adduced by Gorham—which

was nothing. Thus, the evidence presented tended to prove that it was more

likely than not that Gorham was informed of the required Miranda warnings and

that his subsequent statement regarding his weekend encounter with Lucore was

voluntary.

12 During the CrR 3.5 hearing, Gorham’s attorney had the opportunity to, but did not, ask

Starks to specify the exact language of the warnings provided to Gorham. Nor did he contest their

sufficiency.

13 Perhaps when the language of Miranda warnings 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 Miranda warnings, 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 of our case law refers to the Miranda

warnings without specifically delineating the precise information required to be conveyed thereby.

Thus, it is not obvious that Gorham’s defense counsel, the trial judge, and everyone else in the

courtroom, failed to comprehend what Starks meant when he testified that he used his

department’s standard Miranda warnings language.

15
No. 79071-4-1116

C

Next, Gorham contends that the prosecutor engaged in misconduct while

delivering his closing argument. This is so, he avers, because the prosecutor

stated his personal opinion on the credibility of a witness. In response, the State

asserts that, within the context of the closing argument, the comments Gorham

identifies as the expression of a personal opinion are merely an expression of an

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, “[ijmproper vouching occurs when the

prosecutor expresses a personal belief in the veracity of a witness or indicates

that evidence not presented at trial supports the testimony of a witness.” 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 show that the prosecutor’s conduct was both improper and

prejudicial in the context of the entire record and circumstances at trial.” 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 of the 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 for statements to be made in final arguments

which, standing alone, sound like an expression of personal

16
No. 79071-4-1/17

opinion. However, when judged in the light of the 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 the jury of certain ultimate facts and

conclusions to be drawn from the evidence. Prejudicial error does

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). “If the defendant objected at trial, the

defendant must show that the prosecutor’s misconduct resulted in prejudice that

had a substantial likelihood of affecting the jury’s verdict.” Emery, 174 Wn.2d at

760 (citing State v. Anderson, 153 Wn. App. 417, 427, 220 P.3d 1273 (2009)).

Gorham contends that the 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 best to tell the truth.” While these statements may—in

isolation—appear to be improper, the addition of context shows them to be

otherwise:

[MR. BARTLETT]: And then you have Helene Guinette and

Richard Rigney. Now a person could say they would be biased,

that they would be biased towards Mr. Gorham, but I submit that

they came in and did their absolute best to tell the truth about what

happened as well They had every opportunity while this case was

pending to, you know — and while they testified, to shade what they

remembered to, you know, to give Mr Gorham the benefit of the

doubt where maybe he didn’t deserve it But instead, they came in

and quite ster — not sternly, but strongly, you know, stuck to the

memory that they have today about what happened.

So when Mr. Gorham is telling you he had — that there was

three 18-packs of beer and he had been drinking all day, weigh that

against what his mother and Richard Rigney said, where they — his

17
No. 79071-4-1/18

mother was adamant that he had worked that day. Would it have

been easier for her to say, “Well, I could definitely be wrong about

that today. I might not know if he worked that day or not. He

perhaps had been drinking all day”? That would have been easy —

that would have been the easy thing for her to do, but she told the

truth, and she —

MR. RAMSAY: Objection, Your Honor; comment on the truth

of what witnesses say.

THE COURT: You will determine what the truth is.

MR. BARTLETT: Correct. Well, obviously. Sorry, Your

Honor.

She did her best to tell the truth and that was what she

remembered, that on that — on the day in question, and she was

adamant it was 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.

“[Wjhen judged in the light of the total argument, the issues in the case,

the evidence discussed during the argument, and the court’s instructions,”

Papadopoulos, 34 Wn. App. at 400, it is apparent that the prosecutor herein was

merely trying to convince the jury of the ultimate conclusion that Guinette’s

testimony was truthful. Specifically, the prosecutor highlighted an inference of

truthfulness that the jury could draw from Guinette’s refusal to change her

recollection of events—that Gorham had goneto work on the day in question and

had not spent the whole day drinking—in the face of cross-examination.

Furthermore, even if the prosecutor had improperly expressed his

personal opinion, Gorham has failed to demonstrate prejudice that had a

substantial likelihood of affecting the jury’s verdict. Guinette’s testimony that

Gorham had not been drinking all day supported an inference that he was not

intoxicated at the time of the incident. This inference was also supported by

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Rigney’s testimony regarding the amount of alcohol Gorham consumed that day

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 other evidence, it is far from substantially likely

that, had the prosecutor improperly commented on Guinette’s credibility

regarding Gorham’s drinking, such comment affected the jury’s verdict.

D

Gorham next contends that the trial court erred when it declined to give a

jury instruction for vehicular assault as a lesser-included offense of the crime of

assault in the first degree. Because Gorham did not properly preserve this claim

of error for appeal, we decline to address the merits of his contention.

We generally will not consider an issue, theory, or argument not presented

at trial State v McFarland, 127 Wn 2d 322, 332-33, 899 P 2d 1251 (1995)

(citing RAP 2.5(a)).14 This includes any issue for which 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.” State v. Lazcano,

188 Wn. App. 338, 355, 354 P.3d 233 (2015).

CrR 6.15(c) amplifies this general rule by requiring that when 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 for the first time on

appeal that affect a defendant’s constitutional rights, but the 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)).

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No. 79071-4-1120

for the objection.” Our Supreme Court has cited this rule when refusing to review

“asserted instructional errors to which no meaningful exceptions were taken at

trial.” State v. Scott, 110 Wn.2d 682, 686, 757 P.2d 492 (1 988).

Although Gorham proposed a vehicular assault instruction and objected

on the record when the trial court declined to give it, he presented no legal

argument to support his proposed instruction. In fact, when the trial judge first

asked Gorham whether vehicular assault and assault in the third degree were

lesser-included offenses of assault in the first degree, counsel for Gorham stated,

“I can’t say that I agree on vehicular assault.” When the trial judge 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 for objecting 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 right to challenge that ruling on appeal.

E

Finally, Gorham contends, and the State concedes, that the trial court

erred by imposing on Gorham a discretionary jury demand fee of $250.

In 2018, the law on legal financial obligations was changed to categorically

15 The requirement that trial counsel present reasons for any objection assures that trial

judges have the opportunity to 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 for an objection until

the case is on appeal denies the trial judge this opportunity. Thus, it is not sufficient for trial

counsel to simply state an objection; counsel must also provide sufficient explanation supporting

the objection to give the trial court a true opportunity to correct any alleged error.

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No. 79071-4-1/21

prohibit the imposition of any discretionary legal financial obligations on indigent

defendants. LAWS OF 2018, ch. 269, § 6(3). A jury demand fee is a discretionary

cost that courts cannot impose on indigent defendants. RCW 10.01.160(2)-(3).

Our Supreme Court has held that this change in the law applies prospectively to

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, it was

improper for the trial court to impose the discretionary $250 jury demand fee.

This assessment must be stricken on remand.

Affirmed in part, reversed in part, and remanded.

We concur:

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