IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION T WO
STATE OF WASHINGTON ,

Respondent ,

v. ANTHONY D. LONG ,

Appellant

. )

) ) ) ) ) ) ) ) No. 51740

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UNPUBLISHED OPINION

F EARING , J.

— A nthony Long appeals his convic tions for assault and driving under the influence. He contends that the trial court twice commented on the evidence. We disagree and affirm his convictions.
FACTS The prosecution of Anthony Long arises from a confrontation with Patrick Bailey.
P atrick Bailey drove to a friend’s house for a poker game when he noticed a white pickup truck approaching him from behind at a high rate of speed. The driver of the pickup, later identified as Anthony Long, tailgate d Bailey. When Bailey looked in his rearview Filed W ashington State Court of Appeals Division Two October 22, 2019No. 51740

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State v. Long

2 mirror, he observed the driver screaming at his passenger, Long’s girlfriend Breanna Nila

. Long drove past Bailey on a grass median and then sped away. Patrick Bailey continued on his path until he approached Anthony Long’s white pickup truck parked in a gravel parking lot. Bailey saw clothes and beer cans thrown from the truck. Bailey stopped his vehicle and then watched Long pull ing Breanna Nila out of the passenger side of the truck by her foot. Bailey exited his car and exclaimed: “Stop, what are you doing, stop.” R eport of Proceedings (R P ) (March 21, 2018) at 46. Long replied to the Good Samaritan: “What are you going to do, what are you going to do?” RP (March 21, 2018) at 46. Long charged at Bailey. A fight ensued. Patrick Bailey, who wr estled in high school, dropped to a double leg takedown position, picked up Anthony Long , and sat him on the ground. Long restood , and Bailey retreated four or five steps. Long , with more intensity, charged Bailey again. Bailey assumed the same wrestlin g stance and tackled L ong to the ground. Bailey released his grasp of Long , and Long restood again. Anthony Long pulled a black pistol from his waistband and pointed the weapon at Patrick Bailey’s forehead. A fearful Bailey put his hands i n the air, bo wed his head, and repeatedly uttered: “You win, you win.” RP (March 21, 2018) at 49. Long grabbed Bailey, placed him in a headlock, and pistol

- whipped B ailey three times on the b ack of the head . Bailey bled. Bailey pushed himself free. Long continued to aim the pistol at Bailey while declaring: “I can kill you right now; I can shoot you. Do you want to die?”No. 51740

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State v. Long

3 RP (March 21, 2018) at 50. Bailey smelled alcohol on Long and , as Bailey backed toward his car, asked Long how much he had had drank

. Bailey s afely reached his car
and dro ve to his friend’s house. A passerby, Timothy Bussanich, observed the scuffle between Anthony L ong and Patrick Bailey

. Bussanich p arked his car in the gravel lot, exited his car, and observed the two men arguing and yelling. Bussanich noticed blood splattering Bailey’s head and
shirt. Bussanich saw Long pull a gun and heard Long threaten to shoot Bailey. Bussanich overheard Bailey repeatedly a sking Long : “why are you hitting her?” RP (March 21, 2018) at 171. Bussanich to ld Bailey to stop talking and leave. Eventually Bailey retreated after Bussanich scolded him : “You need to get out of here, you’re bleeding real bad.” RP (March 21, 2018) at 51. Bussanich called 911

. Anthony Long later drove near the gravel parking lo t where he fought Patrick Bailey. Kelso police officers, a fter recognizing Long’s bright orange shirt and substantial beard, stop ped Long’s vehicle. Officer Jonathan Dahlke noticed Long acting impair ed and directed him to perform field sobriety tests. A fter Long failed the tests, officers arrested Long and transported him to the jail for a b reath test. At the jail , Long refused to provide a sufficient breath sample.
PROCEDURE
T he State of Washington charged Anthony Long with assault in the second degr ee with a firearm enhancement, assault in the fourth degree with a domestic violenceNo. 51740

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State v. Long

4 designation , and driving while under the influence of alcohol. The State identified Patrick Bailey as the victim of second degree assault and Breanna Nila as the victim o f fourth degree assault. During trial, Long presented a self

- defense argument. At the conclusion of trial, t he prosecutor for the State presented his closing argument from 10:54 a.m. to 11:35 a.m. , for a total of forty

- one minutes. Defense counsel’s cl osing argument lasted from 11:35 a.m. to 12:16 p.m. , also for a total of forty

one minutes. Near the end of Anthony Long’s attorney’s closing and after counsel had concluded argument about self

- defense and transition ed into a discussion of the DUI charge, the following exchange occurred between the trial court and defense counsel:

THE COURT: Can I ask you, Mr. [defense counsel], to please be cognizant of the time. We’re well into the lunch hour. [DEFENSE COUNSEL]: Yes, your Honor, I’ll try and be brief.
RP (March 22, 2018) at 435. Long’s attorney then concluded his closing argument. We do not know the length of the closing after the court’s interruption, but the rest of the closing covers two pages of verbatim report of proceedings. After Anthony Long ’s attorney finished his closing, but prior to the State’s rebuttal, a similar exchange occurred between the trial court and the prosecutor:

THE COURT: All right. Go ahead, Mr. Bentson [the State ’s attorney ]

. Please also be aware of the time. [THE STATE] : I’ m going to try and get this done in 10 minutes. Hang in there. And thank you for your attention on this case. It’ s really important, I appreciate it, and it’s going to be up to you.No. 51740

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State v. Long

5 RP (March 22, 2018) at 437. The prosecutor then delivered the S tate’s rebuttal argument, which lasted ten minutes and consumed six pages of verbatim report of proceedings

. B efore jury deliberations, the trial court cautioned the jury regarding the safe handling of Anthony Long’s pistol, which weapon had been admitte d into evidence and given to the jury to analyze in the jury room. The court commented :

So at this time, ladies and gentlemen, we have ordered your lunch and it’ s on the way. I’ m going to release you back to the jury room to begin your deliberations. O n e thing, I will caution you, I’ ve been assured by the Kelso Police that the gun is secured. It has been admitted into eviden ce, so it will go back to you

— or back to the jury room with you. It has been equipped with a cable of sorts that locks into it tha t I’ m told will prevent it from operating, but I do ask you to be considerate of one another. One of the things that was interesting that we heard during voir dire was one of the gentleman [sic] talked about the rules for guns. There is no such thing as an unloaded gun, never point it at anybody, things like this, never put your finger on the trigger. So maybe some of you are more familiar with firearms than others, so please be respectful with one another. Please, if you feel the need to touch it, plea se do it in a way that would not disturb or alarm any other juror. So I just ask you to observe that.
RP (March 22, 2018) at 443

- 44. Although this passage references comments by a venireman, neither party filed a transcript of voir dire with this revie wing court. The jury found Anthony Long guilty of assault in the second degree and driving
under the influence of alcohol . The jury also returned a special verdict that found Long was armed with a firearm at the time he committed the assault in the seco nd degree and a special verdict that Long refused to submit to a breath test. The jury acquitted Long of the fourth degree assault charge.No. 51740

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State v. Long

6 LAW AND ANALYSIS On appeal, Anthony Long contends the trial court uttered two remarks that qualify
as an unconstit utional comment on the evidence. Long isolates the court’s instruction to defense counsel during closing to be mindful of the time and the court’s directions to the jury to be careful in handling the gun. He asserts the second comment as being error in
h is statement of additional grounds (SAG) . We address each of the trial court’s remarks separately. Anthony Long maintains that the trial court’s comment to d efense counsel about infringing on the lunch hour implicitly told the jury that defense counsel’ s remarks paled in importance to the State’s attorney’s comments. Long further contends that the trial court’s comment unfairly relieved the prosecution of its burden to prove to jurors that Long did not act in self

- defense and that he was sufficiently in toxicated to be driving impaired. The State argues the trial court’s reminder to Long’s attorney that closing argument had entered the lunch hour created no risk of the jury inferring the trial court held or did not hold certain beliefs regarding the evid ence. Furthermore, the State maintains that statements by the court reminding the attorneys of the time are appropriate and necessary for a trial judge to maintain order in the courtroom. We deem Anthony Long’s argument to encompass one factual fatal fla w. Long fails to recognize that the trial court also delivered the same cautionary remark to the State’s attorney when the attorney began his rebuttal argument. Thus, the remark toNo. 51740

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7 defense counsel cannot be considered a suggestion that the prosecuting at torney’s remarks merited more worth. We need not address the implications of the trial court uttering the comment to defense counsel, but not to the State’s attorney. Article IV, section 16 of the Washington Constitution provides: Judges shall not char ge juries with respect to matters of fact, nor comment thereon, but shall declare the law.
T his prohibition seeks to preven t the jury from being influenced by knowledge conveyed to it by the court as to the court’s opinion of the evidence submitted. St ate v. Lampshire , 74 Wn.2d 888, 892, 447 P.2d 727 (1968)

. U nder this constitutional provision, any remark by the judge that suggests that the jury need not consider an element of an offense may qualify as judicial comment. State v. Levy , 156 Wn.2d 709, 7 21, 132 P.3d 1076 (2006).
If a trial judge’s remarks constitute a comment on the evidence, this court will presume the comments were prejudicial. State v. Lane , 125 Wn.2d 825, 838, 889 P.2d 929 (1995)

. The State bears the burden to show that no prejudi ce resulted unless the record affirmatively shows that no prejudice could have resulted. State v. Lane , 125 Wn.2d at 838

- 39 ; State v. Lampshire , 74 Wn.2d at 892. While we presume prejudice when a trial court improperly comments on the evidence, the presu mption withers when the remark could not have influenced the jury. State v. Lane , 125 Wn.2d at 839 ; State v. Bogner , 62 Wn.2d 247, 252, 382 P.2d 254 (19 6 3).No. 51740

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8 Anthony Long relies on State v. Lampshire and State v. Bogner for support. In
State v. Lampshir e , after an objection to the materiality of the testimony by th e prosecution, the trial judge stated:

Counsel’s objection is well taken. We have been from bowel obstruction to sister Betsy , and I don’ t see the materiality, counsel. State v. Lampshire , 74 Wn.2d a t 891. Our Supreme Court reasoned that , alt hough the remark was inadvertent, the judge’s comment implicitly conveyed to the jury his personal opinion concerning the worth of the defendant’s testimony. State v. Lampshire , 74
Wn. 2d at 892. The court reversed the conviction and remanded for a new trial. The Washington Supreme Court also found r eversible error in State v. Bogner

. D uring the State’ s examination of a polic e officer in a robbery prosecution, defense counsel objected to the witnes s’ testimony and the trial judge said: “Don’ t you think we are getti ng a little ridiculous, or aren’ t we?” State v. Bogner , 62 Wn.2d at 249. This remark improperly conveyed to the jury the judge’ s personal feeling as to the truth or falsity of the eviden ce and, therefore, violated the constitutional prohibition. Unlike in State v. Bogner and State v. Lampshire , we h old that the trial judge’ s comment to defense counsel to be cognizant of the time did not cross the line into impropriety. The trial judge never implicitly communicate d that the court held a certain belief regarding the evidence or favored either side. While Anthony Long maintains that the comment implicitly conveyed its opinion to jurors that the defense case was weak andNo. 51740

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9 further argument d id not merit postponing lunch, Long ignores the fact that the trial judge made a similar comment to the State ’s counsel just before his rebuttal

. Anthony Long next complains of the trial court’s comments to the jury about gun safety. Long contends that the trial court’s cautionary statement to the jury regarding the safe handling of a firearm constituted an unconstitutional judicial c omment that legitimize d the supposed rules of gun. The trial court referenced a venireman as referring to rules for guns, which included the rule to never put one’s finger on the trigger. Long extrapolates that one of the rules of gun safety is “you never draw your gun unless you plan to use it

. ” SAG at 2

. In turn, Long complains that this rule diminishes the efficacy
of his defense of self

- defense because of trial evidence that he drew his gun before the scuffle with Patrick Bailey. We reject Anthony Long’s contention because, in part, the record does not confirm that the venireman referenced any rule of gun safety that one should not draw the gun unless one plans to fire the gun. The trial court never mentioned any safety rule that one should not draw one’s gun unless prepared to fire. Issues that involve facts or evidence not in the record are properly raised through a personal restraint petition, not a statement of additional grounds. RAP 10.10. We also reject Anthony Long’s contention because we conclude the trial judge’s
remark was not a comment on the evidence. As explained before, a statement by the
court con stitutes a comme nt on the evidence if a jury can infer the court’ s attitude towardNo. 51740

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10 the merits of the case or the court’ s evaluation relative to a disputed issue

. State v. Lane , 125 Wn.2d at 838 (1995). The trial court’s gun safety cautionary advice to th e jury did not convey the judge’s opinion of the evidence. The court delivered its cautionary words for the jury’s safety and the safety of all involved in the proceedings. The court only reminded the jurors that firearms are dangerous and to always trea t a firearm as if loaded.
CONCLUSION We affirm the convictions of Anthony Long. A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.0 40.

_________________________________ Fearing , J. WE CONCUR:

______________________________ Melnick, P. J.

______________________________ Glasgow , J.