IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

JOHN PATRICK KELLY,

Appellant.

No. 86169-7-I

DIVISION ONE

UNPUBLISHED OPINION

FELDMAN, J. — We are asked in this appeal to decide (among other issues) 

whether the common law doctrine of transferred intent applies in cases, like this 

one, where the defendant is charged with second degree assault. John Patrick 

Kelly pointed a loaded handgun at Alexander and Jessica Cope and their three 

children and yelled “Call 911 or I’ll shoot you” as they walked past his residence. 

Although Kelly told police after the incident that he saw only Mr. Cope and not Ms. 

Cope when he yelled “I’ll shoot you,” he was convicted and sentenced for second 

degree assault against Ms. Cope in addition to second degree assault against Mr. 

Cope and the lesser included offense of unlawful display of a weapon against the 

eldest Cope child. The trial court sentenced Kelly within the standard range on 

each count and imposed two 36-month firearm enhancements to run consecutively 

for a total sentence of 7 years of confinement. On appeal, Kelly argues (a) in the 

absence of transferred intent, which he claims is inapplicable here, there is 
No. 86169-7-I

2

insufficient evidence to sustain the conviction on second degree assault against 

Ms. Cope, (b) his convictions also should be reversed because of prosecutorial 

misconduct, and (c) the trial court erred in running the firearm enhancements 

consecutively. We affirm.

I

Alexander Cope, Jessica Cope, and their three minor children were walking 

through their neighborhood when they heard a banging sound from a nearby 

house. Mr. and Ms. Cope looked toward the house and saw Kelly leaning out of a 

second-story story window waving a silver object. Kelly yelled at the Copes, “Does 

this look like a fake to you?” Mr. Cope realized the object in Kelly’s hand was a 

handgun and replied, “What are you talking about?” Kelly then pointed the 

handgun at the Cope family and said, “Call 911. Somebody is out to get me. Call 

911 or I’ll shoot you.” At this point, Ms. Cope also realized the object was a 

handgun. Mr. and Ms. Cope were standing one to two feet away from each other 

when Kelly pointed the gun at them. Recognizing Kelly’s statements as a threat 

and fearing that Kelly would shoot them and their children, Mr. and Ms. Cope 

quickly walked their children around the corner out of Kelly’s view and reported the 

incident to law enforcement. 

When police arrived at Kelly’s residence, Kelly initially refused to engage 

with them because he believed they were not real law enforcement officers. When 

Kelly eventually talked to the officers, he said a man named Nick had been trying 

to kill him as part of a conspiracy. Over the previous two days, Kelly had called 

911 several times to report his concerns to law enforcement, but Kelly believed 

that Nick had rerouted these phone calls to fake law enforcement officers. Kelly 
No. 86169-7-I

3

had also spray painted “Call 911” on his window. When police asked him if he had 

interacted with anyone outside of his residence, Kelly said he tried to wave down 

a man walking by his house to call 911 but became upset when the man refused. 

Kelly denied pointing a firearm at the man or seeing a family walking with him. 

Officers believed Kelly’s paranoid and erratic behavior was caused by his admitted 

methamphetamine use over the past several days. Upon searching the upstairs 

bedroom, officers discovered a loaded silver semi-automatic handgun with a round 

in the chamber and the safety off. 

The State initially charged Kelly with five counts of first degree assault, but 

it reduced the charges before trial to second degree assault, each with an 

individual firearm enhancement. After the State rested at trial, the court dismissed 

two of the assault charges relating to the youngest Cope children for insufficient 

evidence because “they were too young to know what was happening.” The jury 

convicted Kelly on the remaining charges of (1) second degree assault against Mr. 

Cope, (2) second degree assault against Ms. Cope, and (3) the lesser included 

offense of unlawful display of a weapon against the eldest Cope child. The jury 

also found by special verdict that Kelly was armed with a firearm during the 

commission of the crimes. The trial court sentenced Kelly to 12 months of 

confinement on the underlying charges and imposed two 36-month firearm 

enhancements to run consecutively for a total sentence of 7 years of confinement. 

Kelly appeals. 

II

A. Sufficiency of the evidence

Kelly asserts that the State “presented insufficient evidence to sustain a 
No. 86169-7-I

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conviction” of second degree assault against Ms. Cope. We disagree.

Kelly’s argument is premised on the trial court’s to-convict instruction, which 

he correctly argues is controlling under the law of the case doctrine. While the law 

of the case doctrine “means different things in different circumstances,” here it is 

used to refer “to the principle that jury instructions that are not objected to are 

treated as the properly applicable law for purposes of appeal.” State v. Johnson, 

188 Wn.2d 742, 755, 399 P.3d 507 (2017) (quoting Roberson v. Perez, 156 Wn.2d 

33, 41, 123 P.3d 844 (2005)). “In criminal cases, the State assumes the burden 

of proving otherwise unnecessary elements of the offense when such added 

elements are included without objection in the ‘to convict’ instruction.” Id. at 756 

(citing State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998)). This legal 

principal is the central thrust of Kelly’s argument.

The to-convict instruction at issue here (instruction 14) states:

To convict the defendant of the crime of assault in the second 

degree, as charged in count two, each of the following elements of 

the crime must be proved beyond a reasonable doubt:

(1) That on or about 20th day of May, 2020, the defendant 

assaulted Jessica Cope with a deadly weapon; and

(2) That this act occurred in the State of Washington.

If you find from the evidence that each of these elements have 

been proved beyond a reasonable doubt, then it will be your duty to 

return a verdict of guilty.

On the other hand, if, after weighing all the evidence, you have 

a reasonable doubt as to any of these elements, then it will be your 

duty to return a verdict of not guilty.

Thus, to convict Kelly of second degree assault against Ms. Cope, the State was 

required to prove beyond a reasonable doubt that (1) Kelly “assaulted Jessica

Cope,” (2) he used a “deadly weapon,” and (3) this act occurred in Washington.
No. 86169-7-I

5

When analyzing whether evidence is sufficient to uphold a jury’s verdict, this 

court applies a deferential standard of review. In re Pers. Restraint of Martinez, 

171 Wn.2d 354, 364, 256 P.3d 277 (2011). “Evidence is sufficient to support a 

conviction if, viewed in the light most favorable to the prosecution, it permits any 

rational trier of fact to find the essential elements of the crime beyond a reasonable 

doubt.” State v. Andy, 182 Wn.2d 294, 303, 340 P.3d 840 (2014) (quoting State 

v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004)). Additionally, “all reasonable 

inferences from the evidence must be drawn in favor of the State and interpreted 

most strongly against the defendant.” Johnson, 188 Wn.2d at 762 (quoting State 

v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). We also defer to the jury 

on issues of conflicting testimony, witness credibility, and persuasiveness of the 

evidence. Thomas, 150 Wn.2d at 874-75.

Here, sufficient evidence shows that Kelly used a deadly weapon and that 

the assault took place in Washington. As noted previously, the evidence shows 

that Kelly pointed a loaded handgun at Mr. and Ms. Cope and their children and 

yelled “Call 911 or I’ll shoot you” as they walked past his residence. Kelly does not 

contest, nor could he, that a loaded handgun is a deadly weapon. See instruction 

10 (“A firearm, whether loaded or unloaded, is a deadly weapon.”). The evidence 

also shows that the assault occurred in University Place, which is located in 

Washington. Thus, the first two elements of second degree assault against Ms. 

Cope are supported by sufficient evidence.

Sufficient evidence also supports the remaining element, which is that Kelly 

“assaulted Jessica Cope.” Instruction 11 defines “assault” as follows:

An assault is . . . an act done with the intent to create in 
No. 86169-7-I

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another apprehension of fear of bodily injury, and which in fact 

creates in another a reasonable apprehension and imminent fear of 

bodily injury even though the actor did not actually intend to inflict 

bodily injury.

Instruction 11 requires intent, which is defined in two other jury instructions. First, 

instruction 9 states:

A person acts with intent or intentionally when acting with the 

objective or purpose to accomplish a result that constitutes a crime.

Second, instruction 12 states:

If a person acts with intent to assault another, but the act 

harms a third person, the actor is also deemed to have acted with 

intent to assault any third person who is put in reasonable

apprehension and imminent fear of bodily injury.

Under these instructions, intent can be established by showing either (1) that Kelly 

intended to assault Ms. Cope (direct intent under instruction 9) or (2) that he 

intended to assault Mr. Cope and that Ms. Cope was put in reasonable

apprehension and imminent fear of bodily injury (transferred intent under 

instruction 12).

Sufficient evidence supports a finding of transferred intent under Instruction 

12. Kelly does not dispute that he acted with intent to assault Mr. Cope.1 Under 

instruction 12, this intent transfers to Ms. Cope if she was put in reasonable 

apprehension and imminent fear of bodily injury. Addressing that issue, Ms. Cope 

testified that Kelly pointed the silver object in his hand “directly at us” and “[t]owards 

us. We were -- the wagon and the kids were next to me and next to my husband. 

We were all still standing together.” When Kelly then said, “Call 911 or I’ll shoot 

you,” it became clear to Ms. Cope that the object “was indeed a firearm.” Ms. Cope 

 1 This concession is well taken because Mr. Cope testified he “believed we were going to be shot 

at” after Kelly pointed the handgun at him and his family and yelled “Call 911 or I’ll shoot you.” 
No. 86169-7-I

7

quickly removed herself and her children from the line of fire because “I didn’t want 

to be in any kind of vicinity to somebody waving a firearm in our direction. I was 

worried that it could be discharged.” Viewed in the light most favorable to the State

with all reasonable inferences drawn in the State’s favor, there is sufficient 

evidence to establish transferred intent under instruction 12.

At oral argument, as well as in prior briefing, Kelly did not seriously dispute

that there is sufficient evidence to find transferred intent under instruction 12. 

Instead, Kelly argues that the transferred intent doctrine does not apply to the 

second degree assault conviction at issue here. Stated another way, Kelly claims 

we should examine the sufficiency of the evidence in the absence of transferred 

intent and instruction 12. But contrary to Kelly’s argument, Washington courts 

have recognized for decades that the transferred intent doctrine may apply in 

second degree assault cases. See, e.g., State v. Aguilar, 176 Wn. App. 264, 275, 

308 P.3d 778 (2013) (“[T]ransferred intent is applicable to second degree assault 

charges involving an accidental or unintended victim.”) (quoting State v. Wilson, 

113 Wn. App. 122, 131, 52 P.3d 545 (2002)); State v. Clinton, 25 Wn. App. 400, 

401, 606 P.2d 1240 (1980) (a “classic ‘transferred intent’ case” involving second 

degree assault where the defendant swung a pipe at one person but it slipped from 

his hand and struck another). 

Nor are we persuaded by Kelly that the Washington legislature somehow 

abrogated the transferred intent doctrine in second degree assault cases when it 

codified the transferred intent doctrine in the first degree assault statute, RCW 

9A.36.011, but not in the second degree assault statute, RCW 9A.36.021. In 

support of this argument, Kelly relies on State v. Elmi, 166 Wn.2d 209, 215, 207 
No. 86169-7-I

8

P.3d 439 (2009), which involved a defendant who fired gunshots into a living room 

occupied by the targeted victim and four other children. 166 Wn.2d at 212-14. The 

Supreme Court affirmed Elmi’s convictions for first degree assault against the four 

unintended victims under a strict reading of RCW 9A.36.011, which provides, “A 

person is guilty of assault in the first degree if he or she, with intent to inflict great 

bodily harm: . . . [a]ssaults another with a firearm . . . .” Id. at 218. Because the 

court determined that the first degree assault statute “encompasses transferred 

intent” by “provid[ing] that once the mens rea is established, any unintended victim 

is assaulted if they fall within the terms and conditions of the statute,” the court did 

not resort to applying the common law transferred intent doctrine. Id. 

In relying on Elmi, Kelly inverts the court’s reasoning and erroneously 

concludes, without supporting authority, that “[b]ecause the legislature did not 

codify transferred intent, it could not be relied on to prove second-degree assault.” 

Reply Br. 5.2 But nowhere does Elmi state that the legislature abrogated the 

common law doctrine of transferred intent with respect to second degree assault 

by only codifying the doctrine into the first degree assault statute. To the contrary, 

Elmi implicitly rejected this argument by noting that the common law doctrine of 

transferred intent “is generally applied only when a criminal statute matches 

specific intent with a specific victim.” Elmi, 166 Wn.2d at 217 (citing State v. 

 2 This logical fallacy is referred to as “denying the antecedent,” which former Justice Wiggins of our 

Supreme Court has explained as follows: “Under the rules of formal logic, conditional statements 

take the form, ‘If P, then Q.’ P is termed the antecedent and Q the consequent. The fallacy of 

denying the antecedent occurs when one takes a true statement presented in this form and 

concludes that ‘if not P, then not Q’ must also be true. That conclusion is not valid because negating 

the truth of the antecedent (i.e., denying the truth of P) does not necessitate the denial of its 

consequent.” State v. Brush, 183 Wn.2d 550, 568 n.8, 353 P.3d 213 (2015) (Wiggins, J., concurring 

in part and concurring in result).
No. 86169-7-I

9

Wilson, 125 Wn.2d 212, 218, 883 P.2d 320 (1994)). The second degree assault 

statute does precisely this by stating that a person commits assault if he or she 

“[i]ntentionally assaults another.” RCW 9A.36.021(1)(a) (emphasis added). 

Further, with respect to the crime of assault more generally, Elmi acknowledged 

that “assault does not, under all circumstances, require that the specific intent 

match a specific victim.” Elmi, 166 Wn.2d at 216 (citing Wilson, 125 Wn.2d at 218). 

For all these reasons, we reject Kelly’s argument that the Washington legislature 

abrogated the transferred intent doctrine with respect to second degree assault.

Kelly’s reliance on State v. Abuan, 161 Wn. App. 135, 257 P.3d 1 (2011), is 

likewise misplaced. In Abuan, the defendant was convicted of two counts of 

second degree assault after firing a gun at a person in a garage that was attached 

to a house where a second person heard the gunshots. Id. at 140-43. On appeal, 

the court concluded there was insufficient evidence of Abuan’s intent to assault the 

person inside the house because (1) the State did not offer a transferred intent jury 

instruction and (2) there was an “absence of any injury or apprehension and 

imminent fear of bodily injury” because the person inside the house did not have a 

gun pointed at him, did not see the shooter or the gun, and could not see the 

shooting. Id. at 159. Unlike Abuan, here we have both a transferred intent jury 

instruction and ample evidence that Ms. Cope was placed in reasonable 

apprehension and imminent fear of bodily injury. On this record, Abuan is 

inapposite.

Next, Kelly contends that even if the transferred intent doctrine applies in 

some second degree assault cases, it does not apply in cases, like this one, where 

the conviction is premised on a reasonable apprehension and imminent fear of 
No. 86169-7-I

10

bodily injury as opposed to physical harm. But Kelly fails to meaningfully 

distinguish between an assault where the defendant physically harms someone 

and one where the defendant only places someone in apprehension of harm. The

Elmi court disavowed such a distinction: “The assault statute provides for the 

various methods of assault to be treated equally. As such, whether the unintended 

victim is actually battered (like in Wilson) or not (like in this case) is irrelevant for 

purposes of determining whether an assault occurred.” Elmi, 166 Wn.2d at 217-

18 (citing Wilson, 125 Wn.2d 212); see also State v. Frasquillo, 161 Wn. App. 907, 

916, 255 P.3d 813 (2011) (noting that “under Elmi, transferred intent can also apply 

to victims who are only put in apprehension of harm”).

Lastly, even if we were to agree with Kelly that the transferred intent doctrine 

does not apply to the second degree assault conviction at issue here, there is also 

sufficient evidence to establish the requisite intent to assault Ms. Cope in the 

absence of the transferred intent instruction. See State v. Salamanca, 69 Wn. 

App. 817, 826-27, 851 P.2d 1242 (1993) (finding sufficient evidence from which 

the jury could infer intent to assault another even if transferred intent instruction 

was “superfluous”). Although intent cannot be presumed, “it can be inferred as a 

logical probability from the evidence.” Id. at 826. Ms. Cope testified that Kelly 

pointed the handgun toward her and her family and yelled “Call 911 or I’ll shoot 

you”—a threat that applies equally to both Mr. and Ms. Cope.

3 And contrary to 

Kelly’s subsequent statement to police that he saw only Mr. Cope and not Ms. 

 3 See, e.g., WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2653 (1981) (defining “you” as “the 

one or ones being addressed”) (emphasis added). On the record presented here, as described in 

the text above, a rational trier of fact could reasonably infer that “I’ll shoot you” referred to both Mr. 

Cope or Ms. Cope together. 
No. 86169-7-I

11

Cope when he yelled “I’ll shoot you,” Ms. Cope testified that she was standing just 

a couple feet away from Mr. Cope when Kelly pointed the gun at them. This 

evidence, viewed favorably to the State, supports a logical inference—and would 

allow a rational trier of fact to find—that Kelly intended to assault Ms. Cope. See 

State v. Eastmond, 129 Wn.2d 497, 500, 919 P.2d 577 (1996) (“jury may infer 

specific intent to create fear from the defendant’s pointing a gun at the victim, 

unless the victim knew the weapon was unloaded”), effectively overruled on other 

grounds by State v. Brown, 147 Wn.2d 330, 340, 58 P.3d 889 (2002). 

In short, with or without the transferred intent instruction, there is sufficient 

evidence to establish the elements of second degree assault against Ms. Cope.4

B. Prosecutorial misconduct

Kelly next argues the trial court erred in denying his motion for a new trial 

under CrR 7.5 based on three alleged instances of prosecutorial misconduct. We 

disagree.

Under CrR 7.5(a)(2), a trial court may grant a defendant’s motion for a new 

trial based on prosecutorial misconduct “when it affirmatively appears that a 

substantial right of the defendant was materially affected.” We review the denial 

of a CrR 7.5 motion for a new trial under an abuse of discretion standard. State v. 

Davis, 3 Wn. App. 2d 763, 787, 418 P.3d 199 (2018). Where, as here, the motion 

 4 Additionally, the result also would be the same if we were to apply the statutory elements of 

second degree assault and corresponding common law. See RCW 9A.36.021(1)(c) (“A person is 

guilty of assault in the second degree if he or she, under circumstances not amounting to assault 

in the first degree . . . [a]ssaults another with a deadly weapon.”); Elmi, 166 Wn.2d at 215 (specific 

intent is the “intent to produce a specific result, as opposed to intent to do the physical act that 

produces the result”); Aguilar, 176 Wn. App. at 275 (“Under the doctrine of transferred intent, once 

the intent to inflict harm on one victim is established, the mens rea transfers to any other victim who 

is actually assaulted.”). We focus here on the jury instructions because, according to Kelly, when 

“the government proposed the instructions, they became the elements that the government needed 

to prove.”
No. 86169-7-I

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for a new trial is premised on prosecutorial misconduct, the defendant must prove 

the prosecutor’s conduct was both improper and prejudicial. State v. Sundberg, 

185 Wn.2d 147, 151-52, 370 P.3d 1 (2016). Additionally, if the defendant objected 

to the improper conduct at trial, the defendant must show the misconduct “resulted 

in prejudice that had a substantial likelihood of affecting the jury’s verdict.” State 

v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012). If the defendant did not 

object, the defendant must show the misconduct was “so flagrant and ill 

intentioned” 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 of affecting the jury verdict.’” Id. at 760-61 (quoting State v. 

Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43 (2011)).

First, Kelly asserts the prosecutor committed misconduct by eliciting 

testimony in violation of a pretrial order that excluded on hearsay grounds a 

statement by one of the Cope children that he had “never seen a bad guy before.” 

During trial, the prosecutor asked Ms. Cope, “When you say that everyone was 

shaken up, what did you see as far as, you know, how your husband was acting, 

how you were acting, how the children were acting?” Ms. Cope provided a lengthy 

answer ending with, “The things you say to kids that, you know, like . . . there’s a 

bad guy. . . . the police will handle it.” The trial court sustained defense counsel’s 

objection to this answer and instructed the jury to disregard it. 

Kelly fails to show that the prosecutor’s conduct was improper. The reason 

that Ms. Cope eventually testified in violation of a pretrial order is not that the 

prosecutor asked an improper question, but rather that she provided a lengthy 

narrative response to a proper question. Additionally, the prosecutor warned Ms. 
No. 86169-7-I

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Cope before trial not to reference this excluded statement. Neither the trial court 

nor Kelly’s trial counsel believed the prosecutor intentionally sought to elicit the 

prohibited “bad guy” statement from Ms. Cope. But even if the prosecutor’s 

question was improper, the misconduct did not have a substantial likelihood of 

affecting the jury’s verdict because the trial court sustained defense counsel’s 

objection and instructed the jury to disregard the testimony, and we presume the 

jury followed this instruction. See State v. Gauthier, 189 Wn. App. 30, 39, 354 

P.3d 900 (2015). 

Second, Kelly alleges the prosecutor committed misconduct by attempting 

to shift the burden of proof. “A criminal defendant has no burden to present 

evidence, and it is error for the State to suggest otherwise.” State v. Montgomery, 

163 Wn.2d 577, 597, 183 P.3d 267 (2008). While a prosecutor can “point out a 

lack of evidentiary support for the defendant’s theory of the case,” a prosecutor

may improperly shift the burden of proof by “mentioning during closing argument 

that the defense failed to present witnesses or by stating that the jury should find 

the defendant guilty based simply on the defendant’s failure to present evidence 

to support his defense theory.” State v. Sells, 166 Wn. App. 918, 930, 271 P.3d 

952 (2012) (citing State v. Jackson, 150 Wn. App. 877, 885-86, 209 P.3d 553 

(2009)). 

During closing arguments in this case, defense counsel argued that Kelly 

did not form the requisite intent to assault the Copes because he was paranoid 

and delusional, but did not refer to Kelly’s methamphetamine use. In response, 

the prosecutor argued during rebuttal closing argument, “Counsel talked about the 

fact that the defendant was delusional and paranoid. There was evidence of that. 
No. 86169-7-I

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But you have to ask yourself where was the expert to establish the level of 

methamphetamine?” The trial court again sustained defense counsel’s objection 

based on improper burden shifting and instructed the jury to disregard the remark. 

Here, the prosecutor’s statement that the jury must “ask [itself] where was 

the expert to establish the level of methamphetamine” was improper burden 

shifting because it told the jury that Kelly had to present expert testimony to prove 

he could not develop the requisite mens rea to commit the charged offenses due 

to his drug use. The State referred to this hypothetical expert testimony for the 

first time during its rebuttal closing argument, which deprived Kelly of an 

opportunity to explain the absence of any expert testimony.5 Our case law 

recognizes, “Defendants are among the people the prosecutor represents. The

prosecutor owes a duty to defendants to see that their rights to a constitutionally 

fair trial are not violated.” State v. Monday, 171 Wn.2d 667, 676, 257 P.3d 551 

(2011). But while the prosecutor’s statement was improper, it did not have a 

substantial likelihood of affecting the jury’s verdict because the trial court sustained 

defense counsel’s objection and instructed the jury to disregard the remark. See 

Gauthier, 189 Wn. App. at 39. The trial court did not abuse its discretion in denying 

Kelly’s motion for a new trial based on this improper statement.

 5 The State’s reliance on the “missing witness doctrine” set forth in State v. Blair, 117 Wn.2d 479, 

816 P.2d 718 (1991), is misplaced. The missing witness doctrine permits the State to “point out 

the absence of a ‘natural witness’ when it appears reasonable that the witness is under the 

defendant’s control or peculiarly available to the defendant and the defendant would not have failed 

to produce the witness unless the testimony were unfavorable.” Montgomery, 163 Wn.2d at 598

(citing Blair, 117 Wn.2d at 485-86). Blair is inapposite because it involved a defendant’s failure to 

call a fact witness that the defendant claimed would support their theory of the case, not a

hypothetical expert witness the State asserted the defendant should have called. The State has 

not cited any authority extending the missing witness doctrine to a case, like Kelly’s, where there 

is no evidence in the record that the defendant retained an expert who would have testified 

unfavorably for the defendant.
No. 86169-7-I

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Third, Kelly avers that the prosecutor improperly denigrated the dignity of 

defense counsel through audible sighs and non-verbal gestures. The record 

indicates that one such audible sigh occurred during the following interaction 

outside the presence of the jury after the prosecutor argued that certain statements 

were inadmissible hearsay:

MR. AUSSERER [Defense]: Well, it’s not hearsay. I—Your 

Honor, I would appreciate if we could refrain from—

THE COURT: Again, we get back to what we discussed 

yesterday. And, you know, I know that this—there’s high emotions 

here. But we are—you know, this is significant and very serious for 

everybody here, and we need to—Ms. Hauger, if you could refrain 

from the sighing—the audible sighs. That would be—

MS. HAUGER [Prosecutor]: I apologize. It’s just that I know 

Mr. Ausserer. I know him to be a very competent attorney, and he 

knows what hearsay is.

THE COURT: All right.

MS. HAUGER: And I apologize. I will refrain.

THE COURT: Thank you6 

According to Kelly’s post-trial motion for a new trial, jurors indicated after trial that 

they “observ[ed] audible responses and obvious emoting [from the prosecutor] in 

response to each issue raised during cross examination of all witnesses,” such as 

eye-rolling, audible sighs, and “physically react[ing] in a negative manner during 

the defendant’s examination.” 

If these allegations are correct, then the prosecutor’s conduct was improper 

because it impugned the role or integrity of defense counsel and expressed a 

 6 The trial court’s reference to “what we discussed yesterday” likely relates to its prior statement to 

both counsel that “you’re both professionals, and I expect both of you to behave that way. I don’t 

want to be a referee.” 
No. 86169-7-I

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personal opinion as to the credibility of a witness or the defendant’s guilt. State v. 

Lindsay, 180 Wn.2d at 431-32, 437, 326 P.3d 125 (2014). This, too, violates the 

prosecutor’s “duty to defendants to see that their rights to a constitutionally fair trial 

are not violated.” Monday, 171 Wn.2d at 676. But the audible sigh that is 

recounted above—which is the primary focus of Kelly’s appellate argument—

occurred outside the presence of the jury, thereby obviating any prejudicial effect 

it may have had on the verdict. And while jurors indicated that such improper 

conduct occurred throughout the trial, Kelly did not object and, thus, must show 

the conduct was so flagrant and ill intentioned that no curative instruction could 

have cured any prejudice. Emery, 174 Wn.2d at 760-61. Because Kelly fails to 

show, as he must, that a curative instruction would not have cured any prejudice 

from the prosecutor’s improper conduct, his third and final argument also fails.

7

C. Firearm enhancements

Finally, Kelly contends that remand is necessary because the sentencing 

court did not know it had discretion to run the firearm enhancements concurrently 

under RCW 9.94A.535, which permits a court to impose an exceptional sentence 

below the standard sentence range if “substantial and compelling reasons justify[] 

an exceptional sentence.” A defendant may seek appellate review from a 

discretionary sentence within the standard range in “circumstances where the 

 7 The trial court likewise concluded that the prosecutor’s sighs and other nonverbal conduct did not 

affect the jury’s verdict because “the fact that [the jurors] may have noted [the prosecutor’s] 

behavior and yet rendered the verdict that they did would indicate to the Court that that was not 

what they were looking at in making their determination.” While we have carefully scrutinized 

Kelly’s argument on this point, the applicable standard of review is abuse of discretion and we may 

properly defer to the trial court’s ruling on this point. See State v. Stenson, 132 Wn.2d 668, 719, 

940 P.2d 1239 (1997) (“The trial court is in the best position to most effectively determine if 

prosecutorial misconduct prejudiced a defendant’s right to a fair trial.”) (quoting State v. Luvene, 

127 Wn.2d 690, 701, 903 P.2d 960 (1995)). 
No. 86169-7-I

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court has refused to exercise discretion at all or has relied on an impermissible 

basis for refusing to impose an exceptional sentence below the standard range.” 

State v. Mandefero, 14 Wn. App. 2d 825, 833, 473 P.3d 1239 (2020) (quoting State 

v. McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017)). Because our Supreme 

Court has squarely held that a sentencing court has no discretion to depart from 

mandatory weapon enhancements, we reject Kelly’s argument.

In State v. Brown, our Supreme Court held that “judicial discretion to impose 

an exceptional sentence does not extend to a deadly weapon enhancement.” 139 

Wn.2d 20, 29, 983 P.2d 608 (1999), overruled on other grounds by State v. 

Houston-Sconiers, 188 Wn.2d 1, 21 n.5, 391 P.3d 409 (2017). After adding a 

twelve-month deadly weapon enhancement to the defendant’s sentence pursuant 

to former RCW 9.94A.310(4)(b), the sentencing court in Brown granted the jury’s 

request for leniency and imposed an exceptional sentence downward of seven 

months on the defendant’s second degree assault conviction. 139 Wn.2d at 23, 

29. On appeal, the Supreme Court remanded for resentencing because the length 

of the sentence was shorter than the enhancement range. Id. The court relied on 

the “absolute” language of the firearm enhancement statute stating, 

“Notwithstanding any other provision of law, any and all deadly weapon 

enhancements under this section are mandatory, shall be served in total 

confinement, and shall not run concurrently with any other sentencing provisions.” 

Id. at 26 (quoting former RCW 9.94A.310(4)(e)). 

As the Supreme Court held in Brown and the plain language of the 

applicable sentencing statutes confirms, a sentencing court does not have 

discretion to impose an exceptional sentence downward by running firearm 
No. 86169-7-I

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enhancements concurrently instead of consecutively. The current version of the 

firearm enhancement statute mirrors the statute in Brown by stating, 

“Notwithstanding any other provision of law, all firearm enhancements under this 

section are mandatory, shall be served in total confinement, and shall run 

consecutively to all other sentencing provisions, including other firearm or deadly 

weapon enhancements.” RCW 9.94A.533(e) (emphasis added). Thus, the 

sentencing court correctly concluded it had no discretion to run the firearm 

enhancements concurrently as part of an exceptional sentence.

Kelly argues that Brown is no longer controlling on this issue following the 

Supreme Court’s recent decision in Houston-Sconiers, 188 Wn.2d at 21 n.5. This 

argument is unconvincing because Houston-Sconiers overruled Brown only to the 

extent its holding applied to juvenile sentencing. The court held as follows:

[S]entencing courts must have complete discretion to consider 

mitigating circumstances associated with the youth of any juvenile 

defendant, even in the adult criminal justice system, regardless of 

whether the juvenile is there following a decline hearing or not. To 

the extent our state statutes have been interpreted to bar such 

discretion with regard to juveniles, they are overruled. Trial courts 

must consider mitigating qualities of youth at sentencing and must 

have discretion to impose any sentence below the otherwise 

applicable [statutory] range and/or sentence enhancements.

Id. (citing Brown, 139 Wn.2d at 29) (emphasis added). As Kelly acknowledges, 

our court has issued multiple opinions holding that Brown is and remains good law 

with respect to adult sentencing and that a sentencing court must run firearm 
No. 86169-7-I

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enhancements consecutively when sentencing adults.8 Consistent with this 

controlling precedent, we affirm Kelly’s sentence.

Affirmed.

WE CONCUR:

 8 See Mandefero, 14 Wn. App. 2d at 830-32 (“Houston-Sconiers overrules Brown only as it applies 

to juveniles”); State v. Brown, 13 Wn. App. 2d 288, 291, 466 P.3d 244 (2020) (”Houston-Sconiers

overruled Brown with regard to juveniles only”). Division Three of the Court of Appeals has reached 

the same conclusion. State v. Wright, 19 Wn. App. 2d 37, 52, 493 P.3d 1220 (2021) (“Brown 

remains good law as applied to adult offenders”). Similarly, Kelly’s argument that we should rely 

on Justice Madsen’s concurring opinion in Houston-Sconiers stating that a trial court has “discretion 

to depart from the otherwise mandatory sentencing enhancements when the court is imposing an 

exceptional sentence,” 188 Wn.2d at 34, has also been squarely rejected by our court. See Brown, 

13 Wn. App. 2d at 291 (our court “does not have the authority to overrule Brown” because “a 

decision by the Washington Supreme Court is binding on all lower courts of the state”).