IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, 

### ) ) Respondent, 

### ) No. 78398-0-I



### ) v. 

### ) DIVISION ONE



### ) JARON LAMAR CCX, 

### ) UNPUBLISHED OPINION 

### ) Appellant. 

### ) FILED: February 3, 2020 __________________________________________________________________________________) SMITH, J.

—Jaron Coxwas convicted of attempted murder in the first degree for shooting Alden Gibbs. On appeal, he argues that his conviction must be reversed because the evidence was insufficient to support a finding that he acted with premeditated intent to cause Gibbs’s death. He argues in the alternative that a new trial is warranted because the to-convict instruction relieved the State of its burden to prove premeditation, the State withheld material impeachment evidence, the trial court excluded Cox’s exculpatory statement to an officer, and the prosecutor committed misconduct during closing. We conclude that the evidence was sufficient, when viewed in the light mostfavorable to the State, to support a finding that Cox acted with premeditated intent to cause Gibbs’s death. We also conclude that the to-convict instruction
was adequate, thatthe impeachment evidence withheld by the State was not material in light ofthe record in this case, and that both the exclusion of Cox’sNo. 78398-0-1/2

exculpatory statement and the prosecutor’s statements during closing were harmless. Therefore, we affirm. FACTS This case arises out ofa shooting that occurred at 2:17:40 a.m. on January 16, 2017, in the Pioneer Square neighborhood of Seattle. The shooting occurred nearthe southwest cornerofa building located at 164 South Washington Street (Fuel building). The Fuel building is situated on the north side of South Washington Street. It houses multiple bars, including Stage nightclub and Fuel, which is located in the southwest corner ofthe Fuel building. Justwest ofthe Fuel building, on the same block, is a parking lot (parking lot) that is separated from the Fuel building by an alley, where the shooting took place. Earlierthat morning, around 1:00 or 1:30 a.m., a group of Seattle police officers, including Officers Victor Pirak and Jennifer Hunt, were standing on the south side ofSouth Washington Street in front of McCoy’s Firehouse bar, across the streetfrom and slightly east of Fuel. The officers were there to 

### ‘tryto monitor and talkto people and identifywhere problems may arise” as the bars in that
area began to close. At some point, the officers became aware ofa fight breaking out near Fuel. Officer Piraksawwhat he later described as “a commotion where people were actually starting to put hands on each other” occurring on the southwest corner ofthe Fuel building. Another officer later testified that, atthe cornerofthe Fuel building, he “sawtwo black males fighting
one another” and “throwing punches at each other.” Some ofthe officers, including Officer Pirak and Officer Hunt, began walking along the south sidewalk

2No. 78398-0-1/3

of South Washington Street, in the direction ofthe fight. As Officer Pirakwalked in that direction, he “sawthe physical altercation become more grabbing on.” He “thought [he] saw a swing,” and he “saw somebody get kind of pulled down and maybe people trying to pull him off.” Officer Pirakthen heard “a number of rounds being fired.” The shots sounded to Officer Pirak like theywere coming from the parking lot. Officer Piraktook cover behind a car. As he did so, Officer Hunt ran past him. Officer Pirak also saw another officer, Scott Barker, moving along the north sidewalk in front of Fuel. Officer Pirakthoughtthatwould be a safer position, so he came around the car he had taken cover behind and crossed the street. As Officer Pirak approached the Fuel building he saw a man, later identified as Gibbs, lying on the ground where the fight had been happening. Gibbs had suffered multiple gunshotwounds. Although he survived, he is unable to walk. Officer Barkeralso “heard multiple gunshots coming from th[e] location where the fightwas.” He “drew [his] gun and

. . . immediately started going there.” As he rounded the cornerofthe Fuel building, he saw a large black SUV facing him, parked facing southbound in the alley. He “immediately started scanning the area looking forthe threat.” He latertestified that he looked northwest into the parking lot and saw a man, later identified as Cox, “walking westthrough the parking lot kind of nonchalantly, calmly, when everyone else
was kind offrantic because therewas gunshots.” Officer Barkertestified that he made eye contact with Cox, who started running through the parking lottoward a Camaro thatwas parked in the lot. Coxwas accompanied by a woman, later

3No. 78398-0-1/4

identified as Princess Combs, who got into the driver’s side ofthe Camaro. Officer Barkertestified that he sawwhat appeared to be Coxtrying to hand something to Combs, and Combs making facial expressions and hand motions indicating that she did notwantto acceptwhatever itwas Coxwas trying to hand her. Coxthen ran behind the Camaro and ducked. Atthis point, Officer Barker had his gun out and was yelling for Coxto show him his hands and get on the ground. Cox ultimately complied and Officer Barker handcuffed Cox behind the Camaro on his stomach. Officer Hunt latertestified that she sawthe shooting and witnessed the shooterturn and flee into the parking lot. She also testified thatshe did not lose sight ofthe shooterfrom the time that she saw him shooting until the time that Officer Barkerarrested him, i.e., Cox. Officer Barkertestified that after he arrested Cox, he looked underneath the Camaro “and approximately 2 feetfrom where Mr. Coxwas there was a pistol with the slide locked to the rear, and so [Officer Barker] confiscated that.” According to a later-filed probable cause statement, “Cox immediatelytold Officer Barkerthat the gun was not his and that someone gave him the gun to hide.” Atthe time of his arrest, Coxwas wearing a blackjacketwith large, white cursive lettering across the back. The gun recovered from underthe Camaro, a “9-millimeter Luger caliber Glock semi-automatic pistol,” was later confirmed as the gun used to shoot Gibbs. The State charged Coxwith one count ofattempted murder in the first degree and one count ofassault in the first degree, in each case while armed with a firearm. Priorto trial, the State moved to exclude, if offered by Cox,

4No. 78398-0-1/5

evidence of Cox’s statementto Officer Barkerthat he had been given the gun to hide. The State contended that Ccx’s statementwas hearsay and did notfall underany recognized hearsay exception. In response, Cox argued thatthe statementwas admissible as an excited utterance; he also argued that itwas not hearsay because he was offering it notforthe truth ofthe matterasserted butto showthatthe subsequent police investigation was inadequate. The trial court excluded the statement, explaining, “I don’t see it has relevance fora nonhearsay purpose.”

- Attrial, Gibbs testified that on the evening ofthe shooting, his friends talked him into going outto Stage nightclub. Stage was holding an “all-black party” that night, “meaning everybodywas wearing black.

. . clothing.” Gibbs and his friends arrived around 12:15 or 12:20 a.m. Gibbs did not see any altercations in the club, buttoward the end ofthe night, he heard thatthings would be ending early because someone was “attacking females.” Gibbs and his friends decided to leave. As they exited Stage, Gibbs asked a friend to get his
car. Gibbs, meanwhile, planned to escort Libby Pinder, a friend that he had seen in the club earlier, to her car. Pinder, who also testified, recalled that as she and Gibbs were walking toward the parking lot, “there was a dude thatwas riled up.” Pinderdescribed him as “African-American and kind ofchubby” and heavierthan Gibbs. Gibbs described the man as “about six-foot, ifthat. Maybe six-one. Probably 50 pounds morethan me.

. . . I don’twantto saythat he’s solid, you know, but he’s
a bigger, heavy-set guy.” Pinder recalled saying to Gibbs, “‘I thinkthat’s the guy

5No. 78398-0-1/6

thatwas in there thatwas riled up. I think so.” Pindertestified thatthe man heard herand “started saying unpleasantthings to [her,] and [Gibbs] started sticking up for [her].” Gibbs testified thatthe man said something to him like, “‘Well, you trying to save these girls orsomething? I’ll slap you.” Gibbs looked atthe man and “wasjust like, you know, like, ‘You know, whatever.” As Gibbs and Pinder walked off, Gibbs looked back and sawthe man “kind ofwalking up on me.” Gibbs expressed that he did notwantto fight, buttestified thatthe man “was determined to fight.” Gibbs had neverseen the man before. Gibbs tried to stay calm, butthen the man swung at him and a fight broke out. Gibbs recalled that when the man firstswung at him, theywere atthe entrance ofthe alley between the Fuel building and the parking lot. Gibbs testified that as the man was swinging at him, Gibbs was swinging back, and eventually Gibbs “knocked him” and he fell on a black SUVthatwas in the alley. According to Gibbs, the SUV backed up and the man fell onto the ground. Gibbs testified that the nextthing he remembers—after confirming that the man was on the ground and no longera threat—was that Gibbs “heard one gunshot and

. . . was laying on the ground.” Gibbs “neverfeltthe gunshot” but knewthat he “was on the ground and everybodywas screaming at [him].” Gibbs recalled taking the ambulance to Harborview Medical Center, where he was treated for multiple gunshotwounds. The surgeon who treated Gibbs atthe hospital testified that although he could not offer an opinion as to the relative positions ofGibbs and the person who fired the weapon, “[i]t looks, according to

6No. 78398-0-1/7

the CT scans and the injuries, the bullet entrywounds were from the back.” An officerwho collected evidence atthe scene testified thatfresh chips found in the concrete indicated “somebody pointing down at somebody that had fallen and then continuing to shoot.” When Gibbs awoke in the hospital, he heard thatthe person he was fighting with was someone known as “Big Mike.” Otherwitnesses also testified thatthey later heard the name “Big Mike” in connection with the fight. During trial, the State introduced an in-carvideo from Officer Barker’s patrol car (IC video). Officer Barker had, about six minutes before the shooting, parked his car across South Washington Streetto blocktraffic. He parked his
carso that itwas facing north into the parking lot. Thus, the IC video captured certain events occurring in the parking lot before and afterthe fight and the shooting. The IC video does not, however, capture the part ofthe alleywhere the shooting occurred. The State also introduced a second video (Weyerhaeuservideo) from a surveillance camera mounted on the Weyerhaeuser building, which is located
across the streetto the south ofthe parking lot. The Weyerhaeuservideo captures the eastern part ofthe parking lot, the alley entrance where the fight occurred, and the southwest corner ofthe Fuel building. The Weyerhaeuser video was taken from a slightly higher perspective than the IC video; however, its view ofthe parking lot begins essentiallywhere the IC video’s view ends. That is, ifa person were to walk eastward across the parking lottoward the alley and the Fuel building, that person would be seen first on the IC video, walking from

7No. 78398-0-1/8

leftto right. That person would then disappearfrom the right side ofthe IC video’s frame and appearon the left side ofthe Weyerhaeuservideo’s frame at approximatelythe same time.1 In the IC video, a Camaro, which Cox latertestified was his, can be seen parked in the parking lotfacing Officer Barker’s patrol car. Also seen in the IC video, aboutfour minutes before the shooting, are two men, one ofwhom Cox later identified as himself, walking together in the parking lot. Ccx is wearing black pants and a blackjacketwith white lettering on the back. The other man is heavier-set and wearing a short-sleeved black shirt and light pants. About a minute and a half before the shooting (at 2:16:13 a.m. on the IC video), Cox can be seen walking by himselfacross the parking lot awayfrom his Camaro toward the alley. Before he gets there, he turns around and begins walking backtoward the Camaro. On his waythere, at 2:16:24 a.m., he passes a heavier-set man wearing a short-sleeved black shirt and light pants who is walking the otherway, toward the alley. The heavier-set man continues walking toward the alley, and just after2:16:29 a.m., he stops at the very right edge ofthe IC video and pauses forabout 10 seconds before disappearing from the IC video’s frame. Meanwhile, at 2:16:30 a.m. on the Weyerhaeuservideo, what appears to

I Both the IC video and the Weyerhaeuservideo are time stamped, and theirtime stamps are consistentwithin one second ofone another. For example, a man wearing a reddish hat and sweatshirt can be seen running west awayfrom the shooting and disappearing from the left side ofthe Weyerhaeuservideo at 2:17:48 a.m., according to thatvideo’s time stamp. The same man appears on the right side ofthe IC video, still running awayfrom the shooting, just before the IC video’s time stamp (which displays only everytwo to three seconds) flashes 2:17:48 a.m. 8No. 78398-0-1/9

be the same, heavier-set man can be seen walking toward the alley and stopping nextto a car. He pauses forabout 10 seconds before crossing in front ofthe car, continues walking toward the alley, and disappears behind a utility box. About six seconds later, what appears to be the same man reemerges from behind the utility box, still walking toward the alley, and crosses the alley in front ofa black SUVthat hasjust driven down the alleyto the alley entrance. The man then stops nextto two people—who Gibbs later identified as himselfand Pinder—at the southwest cornerofthe Fuel building and appears to begin talking to them. The three appearto keep talking as they move in front ofthe black SUV, which is still stopped atthe alley entrance. At 2:17:16 a.m., the heavier-set man moves rapidlytoward Gibbs and Pinder, and at2:17:23 a.m., a fight breaks out. Although the Weyerhaeuservideo has no audio, it is apparentthatthe fight has caught the attention of many people, including a number of individuals walking along the south side ofthe street, who turn to look in the fight’s direction. Turning backto Cox and the IC video: After Cox passes the heavier-set
man in the parking lot at 2:16:24 a.m. as Coxwalks backtoward his car, he continues walking toward the Camaro and then opens the trunk. The trunk remains open for about 15 seconds until Cox closes it and begins walking back
across the parking lottoward the alley. He is still wearing a blackjacketwith white lettering on the back and black pants. Just before the IC video’s time stamp displays 2:17:24 a.m., i.e., just afterthe fight breaks out in the alley, Cox, still walking toward the alley, disappears from the right-hand side ofthe IC video’s frame.

9No. 78398-0-1/10 At aboutthe same time, a man enters the frame ofthe Weyerhaeuser video from the left, walking across the parking lot toward the alley. As he continues walking toward the alley, it is apparentthat he is wearing a blackjacket with white lettering on the back. When the prosecutor played this portion ofthe Weyerhaeuservideo for Cox during his testimony and asked if he saw “that individual with the white lettering on the back,” Cox responded, “No.” The man with the blackjacket disappears behind the utility box at 2:17:28
a.m. About six seconds later, what appears to be the same man emerges from behind the utility box, walks into the alleywhere the fight continues, and extends his arm out in front of him. The white lettering on the back of hisjacket is visible, though illegible, as he does so. The time stamp on the Weyerhaeuservideo displays 2:17:39 a.m. Meanwhile, on the IC video, a series of 12 bangs can be heard, concluding just afterthe time stamp flashes 2:17:40 a.m. On the Weyerhaeuservideo, the man lowers his arm at 2:17:41 a.m. and moves back toward the parking lot. People walking on the south sidewalk across the street from the alley begin to duck and run. Aboutfive seconds later, Cox is seen on the IC video running awayfrom the alley across the parking lotto his Camaro, where Officer Barker ultimately arrests him. Cox denied being the apparent shooter seen extending his arm in the Weyerhaeuservideo. He testified thatwhen he was seen in the IC video opening his trunk, itwas to get a couple of “little airplane alcohol” shots from a birthday gift basket that his mother had bought him. He testified thatwhen he disappeared from the frame ofthe IC video (at about2:17:24 a.m.), he was

10No. 78398-0-I/I I

headed backtoward the front ofthe club when he ran into a friend, Leondis Major. He then opened and drank a shot and offered another one to Major. When asked what happened next, Coxtestified, “I didn’t get all the way in the club. I gotto the first part ofthe alley and that’s when the shots went off.” He recalled that he then “hitthe deck, hitface down on the ground.” He testified that when he was on the ground, some time passed and then he remembered seeing
a gun being tossed toward him. He looked up and saw “a guy running north up the alley” who said “Grab it’ or ‘Pick it up’ orsomething like that.” Coxtestified that he then picked up the gun, ran backtoward his car, and dumped the gun there. Coxtestified that he did not recognize the person who tossed the gun to him but that itwas a black male wearing ajacket similarto his. He also testified that he was not aware thatthere was a fight going on. Cox testified that although he and Gibbs knew people in common, he did not know Gibbs. Cox also testified on direct examination that he did not know Big Mike, who was later identified as MikeWilliams. Specifically, Cox testified that although he had heard of Big Mike because “[h]e has some type of rep in the streets[,]” thatwas “about it” and he “d[id}n’t knowwho he [wa]s.” When asked
on directwhether he could “put a face to” Big Mike’s name, Cox answered no. On cross-examination, Cox confirmed his testimonythatthe shooter ran up the alley. Cox also reiterated that he did not know Mike Williams or anyone named Big Mike and that he had no connection “at all” with Big Mike. When shown a picture of Mike Williams’s identification, Coxtestified that “[n]owthatyou put a face to him, I’ve seen him around” but continued to insistthat he did not

IINo. 78398-0-1/12

know him personally. The State then showed Cox a photograph, dated February 2014, from Cox’s Instagram account. In it, Ccx appears with four other men, one ofwhom Ccx acknowledged was Big Mike. Cox also volunteered thatthe person standing nextto Big Mike in the photo was Big Mike’s cousin and ultimately acknowledged being “real good friends with [Big Mike’s] cousin.” During closing, the prosecutor played the IC video and argued as follows: [PROSECUTOR]: You can see him walking right here in the middle ofthe streetwith this man. This man who is wearing a black short-sleeved shirt and lighter-colored pants that appearto be blue jeans on this screen. They’re walking togetherand they appearto be talking. They stop nextto this vehicle togetherand they linger there for a few seconds. They clearly know each other. This man, this bigger, heavier-set man wearing the short-sleeved black shirt and the lighter-colored pants, the interesting thing aboutthis man is thatthis is the same man who, four minutes later, picks a fightwith Alden Gibbs. Ccx’s counsel objected, stating, “[T]here’s no evidence ofthat.” The trial court overruled the objection, stating, “This is argument.” Later, during her rebuttal closing, the prosecutorargued as follows:

Defense counsel told you ifyou had any remaining questions, that’s reasonable doubt; that ifyou thinkthere are things thatthe police should have done thatthey did not do, that’s reasonable doubt; butthat’s notwhat yourjury instructions say. They saythat in orderto convict, the State has to prove, beyond a reasonable doubt, the elements ofthe crime. The standard of proof in this case is “beyond a reasonable doubt,” and it is the same standard that is applied in every criminal case across the State ofWashington and [buries convict on that standard every day. Cox’s counsel again objected, saying, “I’m going to objectto the suggestion that it’s okayto convict Mr. Cox because other

### [ ]juries convict other people. That’s

12No. 78398-0-1/13

not appropriate argument.” The trial courtthen said to thejury, “Thejury has the instructions. You’ll decide the case based on the instructions provided.” Thejuryfound Ccx guilty of attempted murder in the first degree and guilty ofassault in the first degree, in each case while armed with a firearm. The trial court latervacated the assault conviction. Afterthe verdictwas announced, Ccx learned that Officer Hunt, who had testified attrial, had been suspended in 2014 for using a racial slurwhile pursuing an African American suspect in October2013. Cox moved for a new trial, arguing that the State’s failure to disclose Officer Hunt’s disciplinary history constituted a reversible Brady2 violation. Cox also argued thatthe trial court’s exclusion of Cox’s statementthat someone gave him the gun to hide violated his rightto present a defense. The trial court denied the motion and sentenced Cox to a total of270 months in confinement. Ccx appeals. ANALYSIS Sufficiencyofthe Evidence Ccx argues thatthe evidence presented at trial was insufficient to support
a finding that he had premeditated intentto cause Gibbs’s death. We disagree. To satisfythe Fourteenth Amendment’s due process guarantee, the State “bears the burden of proving every element ofevery crime beyond a reasonable doubt.” U.S. C0NsT. amend. XIV; State v. Chacon, 192 Wn.2d 545, 549, 431 P.3d 477 (2018). When a defendant challenges the sufficiency ofthe evidence

2 Bradyv. Maryland, 373 U.S. 83, 83S. Ct. 1194, 10 L. Ed. 2d 215 (1963). 13No. 78398-0-1/14

presented to meetthis burden, “he orshe admits the truth ofall ofthe State’s evidence.” State v. Cardenas-Flores, 189 Wn.2d 243, 265, 401 P.3d 19 (2017). “In such cases, appellate courts viewthe evidence in the light mostfavorable to the State, drawing reasonable inferences in the State’s favor.” Cardenas-Flores, 189 Wn.2d at 265-66. “Evidence is sufficientto support a guiltyverdict ifany rational trieroffact, viewing the evidence in the light mostfavorable to the State, could find the elements ofthe charged crime beyond a reasonable doubt.” Cardenas-Flores, 189 Wn.2d at 265. “A person is guiltyofan attemptto commit a crime if, 

### with intentto commit
a 

### specific crime, he orshe does any actwhich is a substantial step toward the commission ofthat crime.” RCW 9A.28.020(1) (emphasis added). Thus, to convict Cox ofattempted first degree murder, the State was required to prove that Cox intended to commit first degree murder. This, in turn, required thejury to find that Cox intended to, “[w]ith a premeditated intentto cause the death of another person[,]” cause the death ofanother person. RCW 9A.32.030(1)(a). Premeditation “has been defined as ‘the deliberate formation ofand reflection upon the intentto take a human life.” State v. Gentry, 125 Wn.2d 570, 597, 888 P.2d 1105 (1995) (quoting State v. Robtoy, 98 Wn.2d 30, 43, 653 P.2d 284 (1982)). “It has further been held to involve ‘the mental process ofthinking beforehand, deliberation, reflection, weighing or reasoning for a period oftime, howevershort” Gentry, 125 Wn.2d at 597-98 (quoting State v. Ollens, 107 Wn.2d 848, 850, 733 P.2d 984 (1987)). Nevertheless, premeditation “must involve more than a moment in point oftime.” RCW 9A.32.020(1).

14No. 78398-0-1/15 “Premeditation may be proved by circumstantial evidence where the inferences drawn bythejury are reasonableand the evidence supporting the jury’s finding is substantial.” Gentry, 125 Wn.2d at 598. “Evidence is substantial if it is sufficientto convince a reasonable person ofthe truth ofthe finding.” State
v. Rankin, 151 Wn.2d 689, 709, 92 P.3d 202 (2004). “[S]ufficientevidence to infer premeditation has been found where (1) multiple wounds were inflicted; (2)
a weapon was used; (3) the victim was struckfrom behind; and (4) there was evidence ofa motive.” Gentry, 125 Wn.2d at 599. Here, when the evidence—and particularlythe video evidence—is viewed in the light most’favorable to the State, there was sufficient evidence to support a finding of premeditation. Specifically, ajury could reasonably have inferred from the IC video that Ccx knewthe heavier-set man wearing a black short-sleeved shirt and light pants with whom Coxwas walking in the parking lot aboutfour minutes before the shooting. Ajury could also have inferred thatthis is the same heavier-set man who, a few minutes later, is seen in the IC video walking across the parking lottoward the alley. As discussed, just after2:16:29 a.m. on the IC video, that man pauses atthe very right-hand edge ofthe frame, then disappears offscreen about 10 seconds later. Accordingly, a

### jury could reasonably have inferred thatthis is the same man seen on the left side ofthe Weyerhaeuser video pausing at about 2:16:30 a.m. before continuing toward the alley about 10 seconds later, thatthis same man then stopped to talkto Gibbs and Pinderatthe southwest corner ofthe Fuel building, and that he and Gibbs then got into a fight. Additionally, Ccx does not dispute thatthe man with whom Gibbs was

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fighting was Big Mike, and thejury could reasonably have inferred that Coxwas closerto Big Mike than he initially let on. Indeed, a reasonable inference from Cox’s substantially undermined testimony that he had no connection “at all” with Big Mike is that Cox had a reason to lie aboutthe nature oftheir relationship. Ct State v. Coreland, 130 Wn.2d 244, 291, 922 P.2d 1304 (1996) (explaining, in the context ofclosing arguments, that reasonable inferences from the evidence may include those aboutthe defendant’s credibility). Thejury could also reasonably have inferred thatwhen Cox returned to his Camaro about a minute before the shooting, he retrieved a gun from the trunk. Finally, ajury could reasonably have inferred that Coxwas the man wearing a blackjacketwith white lettering seen entering the frame ofthe Weyerhaeuservideo from the leftjust as Gibbs and Big Mike began to fight, that he—like others in the vicinity—was aware ofthe fight as he walked toward it, and that he shot Gibbs multiple times in the back and continued to shoot after Gibbs fell to the ground. In short, there was evidence that Cox procured aweapon, had
a motive, and pulled the trigger multiple times. This evidence, viewed in the light mostfavorable to the State, was sufficientfor a rational trier offactto find that Cox deliberated, as he walked up to the fight, abouttaking the life ofthe person who was fighting with his friend, Big Mike. Thus, the evidence was sufficientto support a finding that Cox acted with premeditated intentto kill Gibbs. Ct Ollens, 107Wn.2d at 853 (opportunityto deliberate, combined with infliction of numerous knife wounds, motive, and procurement ofweapon, sufficientto submit premeditation tojury).

16No. 78398-0-1/17 Cox disagrees, relying in large part on State v. Hummel, 196 Wn. App. 329, 383 P.3d 592 (2016). But Hummel is readily distinguishable. There, Alice Hummel (Alice) disappeared on October 18, 1990, shortly after herdaughter, S.K., told Alice thatAlice’s husband, Bruce Hummel, had sexually abused her. Hummel, 196 Wn. App. at 332-33. Hummel latertold S.K. and her siblings that Alice had taken ajob in California. Hummel, 196 Wn. App. at 333. Still later, he told them thatAlice had received a promotion and moved to Texas. Hummel, 196 Wn. App. at 333. Sometime in 2001, S.K.’s oldersister became suspicious and filed a missing person report. Hummel, 196 Wn. App. at 333, 334. Detectives interviewed the siblings and then searched for, but neverfound, Alice’s body. Hummel, 196 Wn. App. at 334-35. In 2004, detectives interviewed Hummel about deposits ofdisability checks thatAlice continued to receive after her disappearance. Hummel, 196 Wn. App. at 335. Hummel admitted that, fora period oftime, the retirement system in Alaska, where Alice once worked, continued to deposit disability checks forAlice, and he withdrew moneyfrom the account into which theywere deposited. Hummel, 196 Wn. App. at 335. Hummel latertold detectives thatAlice committed suicide on October 18, 1990, and that he disposed of her body and took steps to cover up her suicide, ostensiblyforthe sake ofthe children. Hummel, 196 Wn. App. at 341-42. The State charged Hummel with first degree murder, and ajury convicted him as charged. Hummel, 196 Wn. App. at 352. On appeal, Hummel argued thatthe evidence was insufficientto support a finding of premeditation. Hummel,

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196 Wn. App. at 352. The State disagreed, contending that “thejury could infer that afterAlice confronted Hummel [about his abusing S.K.}, he formed the intent to kill her.” Hummel, 196 Wn. App. at 356. We rejected the State’s argument, observing that “there is no evidence to showthat Hummel knewthat in October 1990, S.K. disclosed to Alice that he had been molesting S.K. orthatAlice ever confronted Hummel.” Hummel, 196Wn. App. at~356 (emphasis added). Specifically, “no witnesstestified thatAlice confronted Hummel aboutthe molestation.” Hummel, 196 Wn. App. at 356 (emphasis added). We also observed that even ifthe evidence supported a reasonable inference ofa confrontation, “there is no evidence to show deliberation or reflection before Hummel killed Alice.” Hummel, 196 Wn. App. at 356 (emphasis added). Specifically, the evidence that Hummel disposed ofAlice’s body and fraudulently obtained herdisability checks aftershe died was evidence ofguilt, but not probative of premeditation. Hummel, 196 Wn. App. at 356-57. In short, “the State presented no evidence of motive, planning, the circumstances orthe method and manner ofdeath, orthe deliberate formation ofthe intentto kill Alice ,beforehand.” Hummel, 196 Wn. App. at 358 (emphasis added). Here, by contrast, the State did present such evidence. Specifically, and
as discussed, there was evidence of motive because a

### jury could reasonably inferthat Gibbs had been fighting with Cox’s friend, Big Mike. There also is evidence ofthe manner and method ofthe shooting, i.e., that Gibbs was shot from behind, thatthe shooter continued shooting after Gibbs fell, and that the shooterwould have had to pull the trigger multiple times given thatthe handgun

18No. 78398-0-1/19

recovered was semi-automatic. Therefore, Cox’s reliance on Hummel is misplaced. Cox next argues thatthere was insufficient evidence of premeditation because the shooting itselftook onlythree seconds. He notes that in State v. BinQham, 105 Wn.2d 820, 824, 828, 719 P.2d 109 (1986), our Supreme Court held that even if ittakes three to five minutes to effect death by manual strangulation, “manual strangulation alone is insufficient evidence to support a finding of premeditation.” Itfollows, Cox argues, that three seconds ofshooting is insufficient. But in Bingham, 

### “no evidence was presented ofdeliberation or reflection before orduring the strangulation, onlythe strangulation.” 105 Wn.2d at 827. Here, as discussed, there was evidence—apartfrom the shooting itself— from which thejury could reasonably have inferred deliberation or reflection. Furthermore, manual strangulation involves one continuous act, and “[h]olding a hand oversomeone’s mouth orwindpipe does not necessarily reflect a decision to kill the person, but possibly onlyto quiet heror him.” Binqham, 105 Wn.2d at 826. The same cannot be said about shooting at a person multiple times with a semi-automatic pistol. Cox’s argument fails. 

### Jury Instructions Ccx argues that reversal is required because the court’s to-convict instruction failed to instructthejury on each element of attempted first degree murder. We disagree. As an initial matter, the State argues that Coxwaived any error because he did not challenge thejury instructions attrial and cannot demonstrate that

19No. 78398-0-1120

they relieved the State of its burden. But under RAP 2.5(a)(3), “[a] defendant may

. . . raise an errorforthe firsttime on appeal if it is ofconstitutional magnitude[,]” and “[t]he issue ofomission ofan element from [the to-convict] instruction is ofsufficient constitutional magnitude to warrant reviewwhen raised forthe firsttime on appeal.” State v. Aumick, 126 Wn.2d 422, 429, 894 P.2d 1325 (1995); State v. Mills, 154 Wn.2d 1, 6, 109 P.3d 415 (2005). Therefore, we address the merits ofCox’s claim of instructional error. “The due process clause ofthe Fourteenth Amendment to the United States Constitution requires thatjury instructions adequately conveyto thejury thatthe State bears the burden of proving ‘every element ofthe crime charged beyond a reasonable doubt.” State v. Imokawa, No. 96217-1, slip op. at 6 (Wash. Oct. 10, 2019), http://www.courts.wa.gov/opinions/pdf/962171 .pdf (quoting State v. Brown, 147 Wn.2d 330, 339, 58 P.3d 889 (2002)). “When a defendant challenges the adequacy ofspecificjury instructions informing thejury ofthe State’s burden of proof, [this court] review[s] the challenged instructions de novo.” Imokawa, slip op. at 6-7. As a general matter, “[j]ury instructions are sufficient ifthey are supported by substantial evidence, allowthe parties to argue theirtheories ofthe case, and when read as a whole properly inform thejury ofthe applicable law,’ and we reviewjury instructions ‘in the context ofthe instructions as a whole.” Mills, 154 Wn.2d at 7 (alteration in original) (quoting State v. Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 (2002); State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995)). That said, “the reviewing court generally ‘may not rely on other

20No. 78398-0-l121

instructions to supply [an] element missing from the ‘to-convict’ instruction.” Mills, 154 Wn.2d at 7 (quoting State v. DeRyke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003)). To that end, RCW 9A.28.020(1) defines the elements ofcriminal attempt and provides, “A person is guilty ofan attemptto commit a crime if, with intentto commit a specific crime, he or she does any actwhich is a substantial step toward the commission ofthat crime.” In otherwords, “an attempt crime contains onlytwo elements—[1] intentto commit a specific crime and [2] taking a substantial step toward the commission ofthat crime.” State v. Nelson, 191 Wn.2d 61, 74, 419 P.3d 410 (2018); ~~J~DeRyke, 149 Wn.2d at 910-11. Here, the court’s to-convict instruction, which is consistent with 

### WPIC I 00.02,~ instructed thejury as follows:

To convictthe defendant ofthe crime ofattempted murder in the first degree, as charged in Count I, each ofthe following elements ofthe crime must be proved beyond a reasonable doubt: (1) That on orabout January 16, 2017, the defendant did an actthatwas a substantial step toward the commission of murder in the first degree; (2) Thatthe actwas done with the intentto commit murder in the first degree; and (3) Thatthe act occurred in the State ofWashington. Ifyou find from the evidence that each ofthese elements has been proved beyond a reasonable doubt, then itwill be your dutyto return a verdict ofguilty as to Count I. On the other hand, if, afterweighing all the evidence, you have a reasonable doubt as to any one ofthese elements, then it will be your dutyto return a verdict of not guilty as to Count ~

~ I IA WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 100.02, at434 (4th ed. 2016) (WPIC). 4WPIC 100.02 provides: 

### 21No. 78398-0-1/22

The very next instruction, Instruction 4, defined murder in the first degree: “A person commits the crime of murder in the first degree when, with a premeditated intentto cause the death ofanother person, he orshe causes the death ofsuch person orofa third person.” The court~s instructions were adequate. Specifically, the to-convict instruction setforth both statutory elements ofattempt; no elements were missing from the instruction. Additionally, when taken together, the instructions informed thejury ofthe applicable law, were not misleading, and permitted Coxto argue his theory ofthe case. Therefore, reversal is not required. DeRyke is instructive. In that case, our Supreme Court reiterated thatthe crime ofattempt has onlytwo elements. DeRyke, 149 Wn.2d at 910. It also expressly approved of instructing the

### jury on attempt using 

### WPIC 100.02 and using a 

### separate instruction to setforth the elements ofthe crime allegedly attempted. DeRyke, 149 Wn.2d at 911. Indeed, the Supreme Court itself later

To convictthe defendant ofthe crime ofattempted (fill in crime), each ofthe following elements ofthe crime must be proved beyond a reasonable doubt: (1) That on orabout (date), the defendant did an actthat was a substantial step toward the commission of (fill in crime); (2) Thatthe actwas done with the intentto commit (fill in crime); and (3) Thatthe act occurred in the State ofWashington. Ifyou find from the evidence that each ofthese elements has been proved beyond a reasonable doubt, then itwill be your dutyto return a verdict ofguilty. On the other hand, if, afterweighing all the evidence, you have a reasonable doubt as to any one ofthese elements, then it will be your dutyto return a verdict of not guilty.
22No. 78398-0-1/23

characterized DeRyke as “reiterat[ing].

. . that an attempt instruction does not have to provide the elements ofthe crime allegedlyattempted.” Nelson, 191 Wn.2d at 74 (emphasis added). Here, by instructing thejury on attemptthrough 

### WPIC 100.02 and using a separate instruction to setforth the elements offirst degree murder, the trial 

### courtfollowed the same approach expressly approved of in DeRyke. This was not error. Indeed, we have relied on DeRyke to rejectthe argumentthat Cox makes here. See, ~ State v. Jefferson, 199 Wn. App. 772, 809-10, 401 P.3d 805 (2017), rev’d on other cirounds, 192 Wn.2d 225, 429 P.3d 467 (2018); State v. Boswell, 185 Wn. App. 321, 336-37, 340 P.3d 971 (2014); cf. State v. Reed, 150 Wn. App. 761, 772, 208 P.3d 1274 (2009) (rejecting the
same argument and stating that it “conflates the intent necessaryto prove an attemptwith that necessaryto prove first degree murder”). Cox relies on Statev. Vanqer~en, 125 Wn.2d 782, 888 P.2d 1177 (1995), forthe proposition that premeditation is an essential element ofattempted first degree murderthat must be included in the to-convict instruction. But his reliance on Vangerpen is misplaced fortwo reasons. First, Vancierpen did not hold that premeditation is an essential element of attempted first degree murder. Rather, in Vanqerien, the State conceded that premeditation was an essential element; therefore, that issue simplywas not before the court. See Vancierpen, 125 Wn.2d at 785-86; see also Boswell, 185 Wn. App. at 336 (“Vanger~en does not articulate what the essential elements of attempted first degree murder are.”). Second, Vanqerpen involved a challenge to a charging document, not a


### 23No. 78398-0-1/24

challenge to ajury instruction. 125 Wn.2d at 787. “The rule that a charging document must include all essential elements ofa crime is grounded in the constitutional requirementthat defendants be informed ofthe nature and cause ofthe accusation againstthem, in addition to due process concerns regarding notice.” State v. Taylor, 140 Wn.2d 229, 236, 996 P.2d 571 (2000). Meanwhile, “‘a to convict instruction must contain all ofthe elements ofthe crime because it
serves as a yardstick bywhich thejury measures the evidence to determine guilt
or innocence.” DeRyke, 149 Wn.2d at 910 (internal quotation marks omitted) (quoting State v. Smith, 131 Wn.2d 258, 263, 930 P.2d 917 (1997)). In other words, the to-convict instruction ensures “thatthejury is not left guessing atthe meaning ofan element ofthe crime and thatthe State is not relieved of its burden of proving each element ofthe crime.” State v. Saunders, 177 Wn. App. 259, 261, 311 P.3d 601 (2013). Therefore, “the factthat a portion ofa definition must be included in a[]

. . . [charging document] does not mean it is essential to
a to-convict instruction.” Saunders, 177 Wn. App. at 270. Thus, Vancierpen does not control. Cox next argues thatthe instructions relieved the State of its burden because “thejurywas instructed to find Mr. Cox guilty if he had the intentto accomplish the death of Mr. Gibbs and took a substantial step toward causing his death.” Put anotherway, he contends thatthejurywas instructed not on attempted first degree murder, but on attempted second degree murder. Butthis is notthe case. Specifically, part (2) ofthe to-convict instruction required thejury to find that “the actwas done with the intentto commit murderin the firstdegree.”

24No. 78398-0-1/25

(Emphasis added.) When this part ofthe instruction is read in conjunction with the definition of murder in the first degree, thejurywas instructed to find that “the actwas done with the intentto [with a premeditatedintentto cause the death of anotherperson, cause the death ofsuch person orofa third person].” In other words, thejury could not have convicted Cox ofattempted firstdegree murder withoutfinding that he intended to cause the death ofanother person with premeditated intentto cause the death ofanotherperson. Therefore, Cox’s argumentfails. Ccx next argues that State v. Aumick, 126 Wn.2d 422, is instructive here. But in Aumick, the to-convict instruction failed to instruct thejurythat an attempt to commit a crime requires proofof intent. 126 Wn.2d at429. Instead, it defined attemptsolely as “taking a substantial step in the commission ofa crime.” Aumick, 126 Wn.2d at429 n.20. Here, by contrast, part (2) ofthe to-convict instruction instructed thejuryto find “[t]hatthe actwas done with the intentto commit murder/n the first degree.” (Emphasis added.) Therefore, Aumick is distinguishable and does not control. Ccx next argues thatthe to-convict instruction “was improper because it
was nonsensical.” Specifically, he contends that it “instructed [thejury] to convict Mr. Cox if he intendedto form premeditated intentto kill Mr. Gibbs, and took a substantial step toward doing so.” (Emphasis added.) This argument is unpersuasive fortwo reasons. First, and as discussed, when read together, the to-convict instruction and the definition offirst degree murder—which was in the very next instruction—

25No. 78398-0-1/26

instructed thejuryto find that Cox intended to cause the death ofanother person with premeditated intentto cause the death ofanotherperson. A reasonable jurorwould not have interpreted the instruction in the strained waythat Cox does. See State v. Miller, 131 Wn.2d 78, 90, 929 P.2d 372 (1997) (jury instructions are interpreted in the way “a reasonablejuror could have interpreted the instruction”). Second, Cox’s reliance on State v. Smith, 131 Wn.2d 258, to support his argument is misplaced. In Smith, which involved a conspiracy charge, the toconvict instruction should have required the

### juryto find thatthe defendant agreed with his alleged co-conspirators to engage in conductconstituting the crime of firstdegree murder. 131 Wn.2d at 262. Instead, the instruction required the

### jury to find thatthe defendant agreed with his alleged co-conspirators “to engage in

. . . the performance of conduct constituting the crime of Conspiracyto Commit Murder in the First Degree[.]” Smith, 131 Wn.2d at 262 (alterations in original). Our Supreme Court held thatthis instruction was “constitutionally defective because it purports to be a complete statement ofthe lawyetstates the wrong crime as the underlying crime which the conspirators agreedto carry’ out.” Smith, 131 Wn.2d at 263 (emphasis added). The to-convict instruction here did not sufferfrom the same defect. Rather, it stated the correct crime, i.e., first degree murder, as the underlying crime that Cox allegedly attempted to carry out. Moreover, the instruction in Smith was, as a result ofthe defect, entirely circular: It instructed the

### jury to find the defendant guilty ofconspiracy if he engaged in conduct constituting conspiracy. Thus, as the Smith court explained, the instruction “fails to state the

26No. 78398-0-1/27

law completely and correctly.” 131 Wn.2d at263. Here, by contrast, the toconvict instruction completely and correctly stated the law. Specifically, it required thejuryto find that Cox “did an actthatwas a substantial step toward the commission of murder in the first degree” and that “the actwas done with the intentto commitmurderin the firstdegree.” (Emphasis added.) As discussed, when read togetherwith the next instruction defining murder in the first degree, the instruction required thejuryto find that Cox intended to cause the death of another person with premeditated intentto cause the death ofanotherperson. The instruction did not relieve the State of its burden. Impeachment Evidence Cox argues that a newtrial is warranted because the State withheld impeachment evidence regarding Officer Hunt, the onlywitness who testified that she sawthe shooting and that she did not lose sight ofthe shooterfrom the time ofthe shooting until the time that Officer Barker arrested him. Cox, who is African American, did not learn until afterthe verdict that Officer Hunt had been disciplined for using a racial slurwhile pursuing an African American suspect and then attempting tojustify it. We conclude that a newtrial is notwarranted because this evidence was not material when viewed in the context ofthe entire record.Under Bradyv. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), “the prosecution has a dutyto seek out exculpatory and impeaching evidence held by othergovernment actors. State v. Davila, 184 Wn.2d 55, 71, 357 P.3d 636 (2015). To establish a Bradyviolation, a defendant must establish

27No. 78398-0-1/28

three necessary elements: “(1) ‘[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching,’ (2) ‘th[e] evidence must have been suppressed bythe State, eitherwillfully or inadvertently,’ and (3) the evidence must be material.” Davila, 184 Wn.2d at 69 (alterations in original) (quoting Stricklerv. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999)). Here, the State concedes “that it did notfulfill its dutyto proactively discoverand disclose favorable evidence ‘known to the others acting on the government’s behalf in the case, including the police.” Therefore, the only question before this court is whetherthe evidence regarding Officer Hunt is material. “Brady materiality is a legal question that is reviewed de novo.” Davila, 184 Wn.2d at 74. “Evidence is material under Brady ‘ifthere is a reasonable probabilitythat, had the evidence been disclosed to the defense, the result ofthe proceeding would have been different.” Davila, 184Wn.2d at 73 (internal quotation marks omitted) (quoting Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995)). “To satisfythis standard, a defendant need not demonstrate by a preponderance that he would have been acquitted had the suppressed evidence been disclosed.” Davila, 184 Wn.2d at 73. “Instead, he orshe must show onlythat ‘the government’s evidentiarysuppression undermines confidence in the outcome ofthe trial.” Davila, 184 Wn.2d at 73 (internal quotation marks omitted) (quoting Kyles, 514 U.S. at434). Here, the State contends that Officer Hunt’s disciplinary record is not

28No. 78398-0-1/29

material because “thejurywould have convicted Ccx even if it rejected Officer Hunt’s testimony entirely.” In otherwords, the State suggests that impeachment evidence is not material ifthe result ofthe trial would have been the same even if the would-be impeached witness had nevertestified. Butthis is an inaccurate interpretation ofthe testfor Brady materiality, and
we rejectthe State’s suggestion thatwe can determine materiality simply by pretending that Officer Hunt had nevertestified. Rather, we imagine a trial 

### in which Officer Hunt’s past behavior had been used to impeach her and ask whetherthere is a reasonable probabilitythatthe result ofthe proceeding would have been different. We conclude thatthere is not. In reaching our conclusion, we underscore thatthis courttakes issues of racial bias seriously, and we are deeplytroubled by Officer Hunt’s past behavior and bythe State’s failure to disclose it before trial. We also note that it is not difficultto imagine a case where evidence of Officer Hunt’s racial bias and her attempts tojustify her use ofa racial slurwould have called other aspects ofthe State’s case, such as the police investigation, into serious doubt. Butthis is not such a case. Here, the videos—which show Coxwalking toward the alley and off the right side ofthe IC videojust as the apparent shooter emerges onto the left side ofthe Weyerhaeuservideo—constitute independent and overwhelming evidence that Coxwas the shooter. So does the testimony of Officer Barker, who independently pursued Cox after he saw him walking, then running, away from the scene. Indeed, Cox’s own testimony, which confirmed that he discarded the murderweapon afterthe shooting, was also strong, independentevidence of

29No. 78398-0-1/30

his guilt. In short, because ofthe overwhelming, independentevidence of Cox’s guilt, there is not a reasonable probabilitythatthe result ofthe trial would have been different had evidence of Officer Hunt’s disciplinary record been disclosed. Therefore, that evidence was not material. Cox disagrees. He contends thatthe evidence was material because “[t]he [Weyerhaeuser] video showed onlythatthe perpetratorwas wearing a blackjacketwith white writing” and “everyonewas wearing black” that night. He also points outthat he testified that he merely picked up the gun after itwas discarded bythe shooter and that he had no reason to shoot Gibbs given that Gibbs was fighting with “a different person unrelated to” Cox. Finally, he characterizes Officer Hunt as the State’s “starwitness,” observing that she was the onlywitness who claims to have seen Cox shoot Gibbs and that she bolstered hercredibility bytouting her promotion to sergeant. But Cox’s argument ignores thatwhen assessing Brady materiality, the omitted evidence is evaluated in the context ofthe entire record. Davila, 184 Wn.2d at 78. To that end, the videos do notshow merelythatthe perpetrator
was wearing a blackjacketwith white writing; rather, they show Coxwalking in the direction ofthe alley about20 seconds before the shooting wearing a very similar-looking jacket and disappearing from the IC video’s framejust as the apparentshooter appears on the frame ofthe Weyerhaeuservideo. Also as discussed, there is evidence that Cox did have a reason to shoot Gibbs because Gibbs was fighting with Cox’s friend. Finally, and although Officer Hunt claimed that she did not lose sight ofthe shooter until the time ofthe shooting until he,

30No. 78398-0-1/31

i.e., Cox, was arrested, Officer Huntwas notthe State’s “star”—rather, the videos
were. Cox’s arguments are not persuasive. Cox next relies on United States v. Price, 566 F.3d 900 (9th Cir. 2009), to contend thatthe evidence was material. But Price is readily distinguishable on its facts. There, Delray Price was convicted of being a felon in possession ofa firearm afterofficers found a gun hidden beneath the driver’s seat ofa car in which Price was riding in the rear. Price, 566 F.3d at 902. The evidence that “sealed [Price’s] fate” was testimonyfrom Antoinette Phillips, who testified that about 15 minutes before Price was pulled over, she saw a gun tucked into the waistband of Price’s pants. Price, 566 F.3d at 902. What neither Price nor his counsel knewwas that Phillips “ha[d] a lengthy history of run-ins with the

. police that suggests that she has little regard fortruth and honesty.” Price, 566 F.3d at 903. In concluding thatthis undisclosed historywas material under Brady, the Ninth Circuit observed that Phillips’s testimonywas one ofonlythree items of evidence introduced bythe prosecution, the othertwo ofwhich were “significantly undermined” by Price’s counsel’s questioning at trial. Price, 566 F.3d at 913. Thus, Phillips was “indisputably ‘the prosecution’s starwitness[,]” and the court characterized hertestimony as critical to the prosecution’s case. Price, 566 F.3d at 914 (quoting Carric~erv. Stewart, 132 F.3d 463, 480 (9th Cir. 1997)). Here, and as discussed, Officer Hunt’s testimonywas not similarly critical given the strong independent evidence presented bythe videos and other testimony. Furthermore, unlike in Price, the otherevidence was not “significantly

31No. 78398-0-1/32

undermined.” 566 F.3d at 913. Therefore, Cox’s reliance on Price is misplaced.

Exclusion ofCox’s Exculpatory Statement Cox argues that reversal is required because the trial court erred by excluding, as hearsay, his statementto Officer Barkerthat someone gave him the gun to hide. Because the exclusion of Cox’s statementwas harmless, we disagree. “The erroneous exclusion ofevidence is harmless if, within reasonable probabilities, the errordid not affectthe result ofthe trial.” City of Seattle v. Personeus, 63 Wn. App. 461, 465, 819 P.2d 821 (1991). Here, the trial court excluded Cox’s statement because it determined that it “has [no] relevance fora non-hearsay purpose.” In otherwords, the trial court excluded Cox’s statement either (1) because itwas hearsay or (2) because itwas not relevant. We do not decide whether exclusion ofCox’s statementwas error because even if itwas, that errorwas harmless. Specifically, there was overwhelming evidence that Coxwas the shooter. As discussed, the IC video shows Coxwalking toward the alleywearing a black jacketwith white lettering on the back and disappearing from the right side ofthe IC video’s frame. Just a moment later, the apparent shooter emerges onto the left side ofthe Weyerhaeuservideo, walking toward the alley. Given this convincing evidence that Coxwas the shooter, the exclusion of his statement did not, within reasonable probabilities, affectthe result ofthe trial. Therefore, reversal is not required. Cox disagrees. He contends thatthe exclusion of his statementdeprived

32No. 78398-0-1/33

him of his rightto present a defense and, therefore, this court must apply a constitutional harmless erroranalysis to determine if reversal is required. He relies on State v. Jones, 168 Wn.2d 713, 230 P.3d 576 (2010), and State v. Duarte Vela, 200 Wn. App. 306, 402 P.3d 281 (2017), to support his argument, but his reliance on these cases is misplaced. In both Jones and Duarte Vela, the evidence excluded bythe trial court
was highly relevantto the defendant’s defense. In Jones, a rape case, the trial court barred the defendantfrom testifying thatthe sexual contactwas consensual and took place at an all-night sex party. 168 Wn.2d at 717. And in Duarte Vela,
a murdercase, the trial court excluded evidence thatthe defendant acted in selfdefense. 200 Wn. App. at 320. In each case, the trial court’s ruling was later determined to have deprived the defendant of his rightto present a defense. Jones, 168 Wn.2d at 717; Duarte Vela, 200 Wn. App. at 320. And in each case, the appellate court explained thatthis was so because the evidence had high probative value. Jones, 168 Wn2d at 724; Duarte Vela, 200 Wn. App. at 326. Indeed, in Jones, the evidence constituted the defendant’s “entire defense.” 168 Wn.2d at 721. And in Duarte Vela, the evidence “was central to [the defendant]’s abilityto explain the reasonableness of his fear.” 200 Wn. App. at 320. Here, Cox’s defense theorywas thatthe “police simply chose the wrong person to arrest” and that “because theythoughtthey had found whattheywere looking for, theyjust quit looking.” But Cox’s statementthat someone gave him the gun to hide is, at best, only minimally—not highly—probative ofwhether officers should have conducted further investigation. It also was not central to his

33No. 78398-0-1/34

defense because its exclusion did not prevent him from telling his side ofthe story orfrom presenting any evidence that he was not, in fact, the shooter. Moreover, Cox’s counsel effectively elicited testimonyfrom several State witnesses about additional investigation orevidence gathering that could have occurred and additional forensictesting that could have been done. Cox’s counsel then emphasized these alleged inadequacies in his closing argument, summing them up with, “The police did theirjob badly, horribly, hopelessly inadequately; and nowthey have leftthis with you, and now it is yourjob to figure outwhat happened.” The exclusion of Cox’s minimally probative statement did not prevent him from executing his defense strategy. Therefore, Jones and Duarte Vela are not persuasive here. See State v. Arndt, No. 95396-1, slip op. at 31-32 (Wash. Dec. 5, 2019), htt~://wwW.courts.wa.qov/o~Jinions/jDdf/953961 .~df (distinguishing Jones on the basis that it involved highly probative evidence constituting the defendant’s entire defense and holding thattrial court’s exclusion ofcertain testimony did not violate defendant’s rightto present a defense where defendant was “able to present relevant evidence supporting her central defense theory”). Prosecutorial Misconduct Cox argues that a newtrial is warranted because the prosecutor committed misconduct during closing by (1) arguing facts not in evidence and (2) trivializing the burden of proof. We disagree. “In closing argument, a prosecutor is afforded wide latitude to draw and express reasonable inferences from the evidence.” State v. Robinson, 189 Wn.

34No. 78398-0-1/35

App. 877, 893, 359 P.3d 874 (2015) (quoting State v. Reed, 168 Wn. App. 553, 577, 278 P.3d 203 (2012)). Nevertheless, a prosecutor commits misconduct by arguing facts not in evidence. In re Pers. Restraint ofGlasmann, 175 Wn.2d 696, 705, 286 P.3d 673 (2012). A prosecutoralso commits misconduct by trivializing the State’s burden of proof, including by ‘“compar[ing] the reasonable doubt standard to everyday decision making.” State v. Lindsay, 180 Wn.2d 423, 436, 326 P.3d 125 (2014) (quoting State v. Lindsay, 171 Wn. App. 808, 828, 288 P.3d 641 (2012)). “This court reviews a trial court’s decision on alleged prosecutorial misconductfor abuse ofdiscretion.” Robinson, 189 Wn. App. at 893. “To prevail
on a claim of prosecutorial misconduct, the defendant must establish ‘thatthe prosecutor’s conductwas both improperand prejudicial in the context ofthe entire record and the circumstances attrial.” State v. Thorcierson, 172 Wn.2d 438, 442, 258 P.3d 43(2011) (internal quotation marks omitted) (quoting State v. Maciers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008)). “[This court] review[s] the prosecutor’s conduct and whether prejudice resulted therefrom ‘by examining that conduct in the full trial context, including the evidence presented, the context ofthe total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to thejury.” State v. Pinson, 183 Wn. App. 411,416,333 P.3d 528 (2014) (internal quotation marks omitted) (quoting State
v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011)). Here, the prosecutor should not have been as conclusory as she initially
was in asserting thatthe “bigger, heavier-set man wearing the short-sleeved

35No. 78398-0-1/36

black shirt and the lighter-colored pants” in the IC video was “the same man who, four minutes later, picks a fightwith Alden Gibbs.” The prosecutor also should not have suggested thatjuries “convict on [the reasonable doubt] standard every day.” Nevertheless, the prosecutor’s statements were not prejudicial in the context ofthe entire record. Specifically, afterdefense counsel objected, the prosecutor explained in further detail why her assertion aboutthe IC video was a reasonable inference from the evidence. And as already discussed, her assertion was, indeed, a reasonable inference. And the prosecutor’s comment regarding the reasonable doubtstandard was made in the context oftrying to rebut defense counsel’s argument that “[t]he police did theirjob badly, horribly, hopelessly inadequately,” suggesting that thejury should acquit if it believed there was additional investigation the police could have done. Furthermore, upon defense counsel’s objection, the trial court immediately instructed thejury to decide the case based on the instructions provided, and there is no evidence suggesting thatthejury did not do so. Cf. State v. Brown, 132 Wn.2d 529, 618, 940 P.2d 546 (1997) (“Ajury is presumed to follow instructions given.”). Therefore, the prosecutor’s statements, though overreaching, do not require reversal. Cumulative Error Cox argues that he is entitled to a newtrial underthe cumulative error doctrine. We disagree. “Underthe cumulative errordoctrine, a defendant may be entitled to a new

36No. 78398-0-1/37

trial when cumulative errors produce a trial that is fundamentally unfair.” State v. Emery, 174 Wn.2d 741, 766, 278 P.3d 653 (2012). “The application of [the] doctrine is limited to instances when there have been several trial errors that standing alone may not be sufficienttojustify reversal butwhen combined may deny a defendant a fairtrial.” State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). Thus, “[tjhe doctrine does not applywhere the errors are few and have little or no effect on the trial’s outcome.” State v. Veneqas, 155 Wn. App. 507, 520, 228 P.3d 813 (2010). Cox chiefly relies on Veneqas to urge this courtto applythe cumulative
errordoctrine here. But his reliance is misplaced. In Veneqas, Loni Venegas
was convicted ofthree counts of assault ofa child for assaulting herstep grandson, JV. 155 Wn. App. at

## sio. on appeal, Division Two determined that several errors had occurred attrial: Ratherthan trusting thejuryto reach a proper conclusion after listening to dozens ofwitnesses overthe course ofa six-weektrial, the State twice made arguments that impinged on Venegas’s presumption of innocence. Additionally, the trial court levied an excessive CrR 4.7(h)(7) discovery sanction that prevented the defense from potentially presenting experttestimonythat JV’s chin injury—the basis ofcount Il—could not have occurred as JV described it.

. . . Finally, the trial courtfailed to balance the prejudicial effect of“other acts” evidence against its probative value. Veneqas, 155 Wn. App. at 526-27 (footnote omitted). In concluding thatthese
errors cumulativelywarranted reversal, the court observed thatthe case “turned largely on witness credibility,” that JV’s testimonywas the only evidence the State presented with regard to one ofthe counts, and that “had thejury heard experttestimonythat undermined JV’s version ofevents on one count, thejury 37No. 78398-0-1/38

might have viewed JV’s testimonywith respectto the other counts in a different light.” Veneqas, 155 Wn. App. at 526-27. Here, by contrast, the errors were few and had little or no effect on the trial’s outcome. Specifically, even assuming thatthe trial court erred by excluding Cox’s statementthat someone gave him the gun to hide, that statementwas, as discussed, only minimally probative. And the only othererror in this case consisted ofthe prosecutor’s overreaching but non-prejudicial comments in closing. Finally, although witness credibility is relevant in any case, this was not a case thatturned largely on witness credibility as was the case in VeneQas. Forthese reasons, Veneqas is not persuasive. We affirm. 

# óM~4

# ~ WE CONCUR:

38