### 2015 JUL 2 / A:i IO: 3i

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, Respondent,

v. KEVIN DAVID DILTZ, Appellant. No. 72205-1-1

UNPUBLISHED OPINION

FILED: July 27, 2015 

### Schindler, J. — Kevin DavidDiltz seeks reversal of the jury conviction forassault 

### in the first degree of a lawenforcementofficerwhile armed with a firearm. Diltz contends the court erred in denying his motion for a mistrialbased on two prejudicialstatements 

### during rebuttal argument. Because the statements were based on reasonable inferences from the evidence and were related to the State's burden to prove intent, we affirmthe decision to deny the motion for a mistrial.FACTS 

### At around 11:30 a.m. onApril 29, 2013, Marysville Police Department Officer 

### Jeffrey Norris pulled over a blackpickup truckon the onrampto southbound Interstate 5 

### (I-5). AsOfficerNorris approached thetruck, thedriver, lateridentified as Kevin David Diltz, drove southbound on I-5. Officer Norris ran back to hispatrol car andfollowed theNo. 72205-1-1/2 truck. As Diltzdrove southbound on State Route 529, he passed a numberofcars on the right-hand shoulder, often reaching speeds of 95 m.p.h. Diltzslowed down when he reached Everett but drove through a number of red traffic lights and stop signs. After the truck's driveline fell off, Diltzjumped out ofthe truck. The truck crashed into a parked vehicle, and Diltzstarted running through a residential neighborhood. Officer Norris got out of his patrol car and yelled, "Stop. Police," but Diltzkept running. Officer Norris ran after him. While Diltzwas running downhill along a sidewalk, he turned to look back at Officer Norris and fired at least four shots. Diltzthen ran behind a house andjumped

over a fence into a neighboring backyard. Officer Norris called dispatch to report shots had been fired and request backup. Marysville Police Department Officer Daniel Vinson stationed himselfat a nearby intersection while other officers set up a perimeter. OfficerVinson saw Diltz running down an alley and pointed a rifle at him. Diltzraised his hands but then turned and ran. Everett Police Department OfficerAlex Soderstrom saw Diltz run out ofthe alley and

across a street. Officer Soderstrom pointed a rifleat Diltzand told him to stop but Diltz kept running. Everett Police Department Officer Shane Nelson spotted Diltzrunning between 

### two houses. Officer Nelson pointed his rifle at Diltzand threatened to shoot him if he did 

### not get on the ground. Diltz walked directly toward Officer Nelson with his fists balled. 

### Diltz had a large knife on his hip but did not appearto have a gun. The police arrested
Diltz. 

### After his arrest, the police found a brownjacketcontaining a cell phone in the alley 

### and a pair of gloves inone of the backyards but did notfind the firearm Diltz used to 2No. 72205-1-1/3 shoot at Officer Norris. A police officer identified three bullet strikes on the concrete sidewalk where Diltz fired at Officer Norris. The officer also found three 9 mm hollowpoint bullet shell casings. A few days later, a homeownerfound a fourth 9 mm shell casing in a nearby front yard. Detective Steve Brenneman obtained a warrantto search the black pickup truck. Inside, he found an empty gun case, a small canvas bag containing a pipe, and a pair of vice grips and a screwdriver. AWashington State Patrol Crime Laboratory (WSPCL) 

### forensic scientist extracted DNA1 fromthe pipe found inthe truck and the pair of gloves. The DNA from the pipe and the gloves matched the DNA from Diltz with a "1 in 3.4 quintillion" probability of a random match. Detective Brenneman also obtained a warrantto search the cell phone found in thejacket. The search history showed two searches on the evening of April 28 for a Ruger P89 handgun. 

### On May 17, the State charged Diltz with assault inthe firstdegree and the aggravating factor ofcommitting the assault against a law enforcement officer while 

### armed with a firearm. The State also charged Diltz with attempting to elude a pursuing 

### police vehicle and the aggravating factor ofthreatening persons otherthan the defendant

or the pursuing officerwith physical injury or harm. 

### On May 28, Detective Brenneman listened to recorded phone calls Diltz made 

### fromjail. During a conversation on May 15, Diltz told a friend, "Ijust want somebody to 

### go get that fuckin' thing so Idon't have to worryabout it." On May 22, Diltz told hisfriend, 

### "[A]t least you triedright?" The friend answered, "I didIeven went back and tried again." In response, Diltz said, "I mean it's overwith
.... Ishould have just went outfuckin'

1 Deoxyribonucleic acid.No. 72205-1-1/4 

### blasting at 'em like Iwanted to .
.. then Iwouldn't be here."2 Later in the conversation, Diltz said, "I'mpretty pissed off, but then again Ionly got me to be mad at, maybe I shoulda hid it better." 

### The next day, Detective Brenneman went back to the Everett neighborhood with a metal detector and "almost immediately" found the gun in the backyard where the pair of gloves with Diltz's DNA had been found. The Ruger model P89 9 mm semiautomatic pistolwas buried under several inches of mulch. The hammer of the gun was cocked back with one live round inthe chamber, but the gun wasjammed. AWSPCL forensic scientist determined that all four ofthe 9 mm hollow-point bullet shell casings had been fired from the Ruger P89 pistol. 

### On July 26, the State charged Diltz by amended information with additional counts ofpossession of a stolen firearm, possession of a stolen vehicle, and unlawful possession of a firearm in the second degree. 

### Anumber ofwitnesses testified during the four day trial, includingthe ownerofthe stolen black pickup truck, the ownerof the stolen Ruger P89 pistol, Everett Police Department Detective Joseph Klingman, Detective Brenneman, Officer Norris, and WSPCL forensic scientists. The court admitted into evidence over 200 exhibits, including 

### the gun, the four shell casings, the gloves foundin the backyard, and a number of maps and photographs. Withoutobjection, the court admitted into evidence excerpts of the recordedjail phone conversations. Detective Brenneman testified he and Officer Norris returned about a week later to determine the location of Officer Norris and Diltzwhen Diltz fired the gun. Detective 

### Klingman testified that the location ofthefour 9 mm shell casings was consistentwith

2Some alterations in original.No. 72205-1-1/5 where Officer Norris said Diltzwas standing when Diltz pulled the trigger. Detective Brenneman and Detective Klingman used digital crime scene reconstruction software to determine how close the bullets were to Officer Norris when they struck the sidewalk. The Detectives testified that one ofthe bullets struck the concrete sidewalk approximately 19 feet from Officer Norris. The othertwo bullet strikes were approximately 72 and 73 feet from Officer Norris. 

### Detective Klingman testified that Officer Norris was uphill from Diltz at the time of the shooting and the difference inelevation between Diltz and Officer Norris was approximately three feet. Detective Brenneman testified that because Diltz was three feet lower than Officer Norris when he pulled the trigger, "the height difference would accountfor why those rounds may not have hit Officer Norris." Forensic consultant Matthew Noedel testified on behalfofthe defense. Noedel testified that in his opinion, Diltzmust have fired the gun toward the ground ratherthan 

### straight at Officer Norris. Noedel said thatwhere 90 degrees represents pointing straight down and 0 degrees represents pointing directly horizontal, he believed that Diltz held the 

### gun between 10 and 60 degrees while shooting. However, on cross-examination, Noedel admitted he did not take into accountthe slope ofthe sidewalk or the difference in 

### elevation inreaching his conclusion. Noedel also admitted a 9 mm hollow-point bullet could kill a person and ifa 9 mm hollow-point bullet hit "avital area" of a person's body, "I would expect it to be fatal or cause great harm." 

### The court instructed the jury on assault inthe firstdegree and, at the request of defense, the lesser-included crime of assault in the second degree. 

### In closing argument, the defense attorney conceded the State met its burden ofNo. 72205-1-1/6 

### proving possession of a stolen vehicle, attempting to elude, and unlawfulpossession of a firearm. However, the defense argued the State did not prove Diltzknew the gun was stolen.In addressing the charge ofassault inthe first degree, the defense attorney 

### admitted Diltz shotthe gun but argued he fired only "toward the ground" and not directly at Officer Norris. The attorney argued Diltzwasjusttrying to escape and "did not try or intend to hit Officer Norris with a bullet." The defense attorney argued that because the State did not prove Diltzintended to inflictgreat bodily injury, thejury should convict him ofthe lesser-included crime of assault in the second degree. Inrebuttal, the State argued the evidence showed Diltzacted with intentto cause 

### Officer Norrisgreat bodilyinjury. First, the prosecutor pointed to the evidence that Diltz grabbed the gun and a 15-round magazine beforejumping out the moving pickup truck. The State argued, in pertinent part: When [Diltz] bails out ofthe car, what does he have? Agun. He arms 

### himself. He is getting ready. There's a gun case that he left inthe car. He didn't leave the gun inthe gun case. . .. 

### He didn't grab the 10-round clip. He grabbed the 15-round clip. More ammo, more hollow-point bullets. Shows you what he was intending to do. 

### Second, the State argued thatthe recorded phone calls from jaildemonstrated Diltz's intent. The State argued, in pertinent part: 

### Ithink the most critical piece of information comes from the defendant himself. You heard those recorded phone calls. You heard him say, and I 

### quote, "I should have just went outfucking blasting at them like Iwanted to." That shows you his intent, what he wanted to do. Hewanted to kill 

### as many cops, specificallyOfficer Norris, on that day as he could. That's what he wanted.No. 72205-1-1/7 

### The State also argued the evidence did not supportthe defense theory that Diltz fired only "warning shots." The State asserted that if Diltz"wanted tojust send a 

### warning," he "could have shot inthe air" or "intothe grass to the side of him." The State argued, in pertinent part: You don'tfire warning shots. You don't. You shootto kill. Do you fire warning shots into the air? Into the ground? You don't fire them at all. 

### But ifyou do, that's what you do. And you fire one. You don'tfire at least four. There is no reasonable explanation why you would fire multiple shots at or [in] the direction ofan officer unless you intended to hitthem. 

### The State pointed out that the central issue forthejury to decide was Diltz's intent when he pulled the trigger, not his motivation. 

### That's the one issue you have to decide in this case. The time [Diltz] took that gun, the time he fired it at Officer Norris, and whatwas his intent. Notwhat was his motivation behind it,was he trying to flee, was he trying to 

### become a notorious cop killer. Whatwas his intent when he shot at Officer Norris? The defense did not objectto the prosecutor's rebuttal argument. 

### The jury found Diltz notguilty ofpossessing a stolen firearm. The jury found Diltz guilty ofassault in the firstdegree, attempting to elude a pursuing police vehicle, possession of a stolen vehicle, and unlawful possession of a firearm in the second 

### degree. The jury returned special verdicts finding Diltz committed the crime ofassault in the firstdegree against a lawenforcement officer whilearmed with a firearm, and individuals otherthan Diltz and Officer Norris were threatened with physical injury or harm by Diltz's actions in attempting to elude. 

### The defense filed a motion for a mistrial, arguing the prosecutor's statements that 

### Diltz intended "tokill as many cops ... as he could" and that his motive was "tobecome

a notorious cop killer" were improper and prejudicial. The court denied the motion. The court ruled the prosecutor's statements wereNo. 72205-1-1/8
based on reasonable inferences from the evidence. The court found the statement that Diltzintended to kill as many cops as he could was "a reasonable inference from the 

### evidence presented at trial and was directly relevant to the defendant's intent when firing the gun in [Opcer Norris' direction." The court also found the argument thatthejury must decide intent and "the [S]tate did NOT have to prove the defendant's motivation"

was to become a notorious cop killerwas "also relevant to the State's burden to prove intent and the difference between intent and the motive behind the intent." 

### Based on an offender score of 13 and the aggravating factors, the court imposed
an exceptional sentence for the conviction ofassault inthe first degree and a high-end standard-range sentence for attempting to elude to run consecutively.
ANALYSIS 

### Diltz contends the courterred indenying his motion for a mistrial based on the two 

### prejudicialstatements the prosecutor made during rebuttal argument. Diltz asserts the statements that Diltz wanted to kill as many police officers as he could and thatthe State 

### did not have to prove his motive were an improper appeal to the passion and prejudice of thejurors that require reversal of his conviction for assault inthe first degree. 

### Where, as in this case, alleged prosecutorial misconduct has been the subjectof a mistrial motion, we review the trial court's decision to deny the motion for abuse of discretion. State v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125 (2014); State v. 

### Rodriguez, 146 Wn.2d 260, 269, 45 P.3d 541 (2002). The court abuses its discretion 

### only" 'when no reasonablejudge would have reached the same conclusion.'" State v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012) (quoting State v. Hopson, 113Wn.2d 

### 273, 284, 778 P.2d 1014 (1989)). We givedeference to the trial court's ruling because it 

### isin the best position to evaluate whether the prosecutor's comments prejudiced the 8No. 72205-1-1/9 defendant. State v. Gregory, 158 Wn.2d 759, 841, 147 P.3d 1201 (2006). "The trial 

### court should grant a mistrial only when the defendant has been so prejudiced that nothing short of a new trial can ensure that the defendantwill be fairly tried." Emery, 174Wn.2d

at 765.

### To establish prosecutorial misconduct, Diltzmust show the statements made by the prosecutorduring rebuttal were both improper and prejudicial. Lindsay, 180 Wn.2d at 440. We consider an allegedly improper statement inthe context ofthe argument as a whole, the issues inthe case, the evidence, and thejury instructions. State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994). 

### The State has wide latitude to make arguments based on reasonable inferences from the evidence. State v. Thorgerson, 172 Wn.2d 438, 448, 258 P.3d 43 (2011). But a 

### prosecutorcommits misconduct by asking the jury to convict based on their emotions rather than the evidence. In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 

### P.3d 673 (2012) (citing Am. BarAss'n, Standards for Criminal Justice std. 3-5.8(c) (2d ed. 1980)); State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009) ("References to evidence outside ofthe record and bald appeals to passion and prejudice constitute 

### misconduct."). During rebuttal, a prosecutor "is entitled to make a fairresponse to the 

### arguments ofdefense counsel." State v. Brown. 132Wn.2d 529, 566, 940 P.2d 546 (1997).

### Here, the defense conceded Diltz firedthe gun. The parties disputed his intent when he fired at leastfour shots from a semiautomatic weapon. The State argued he 

### was guilty ofassault in the first degree. Thedefense argued Diltz was guilty of the lesser-included crime of assault in the second degree. 

### During closing argument, the defense argued the State did notprove Diltz 9No. 72205-1-1/10 intended to inflictgreat bodily harm. The defense claimed that because Diltz's motive

was to flee, he only intended to fire warning shots. Diltz contends the prosecutor committed reversible misconduct by arguing that Diltzintended "to kill as many cops ... as he could" and that the State did not have to prove his motive was "to become a notorious cop killer." The court denied the motion for a mistrial, finding the statements were based on reasonable inferences from the evidence, relevant to the State's burden to prove intent, and not flagrant or ill intentioned. The court's findings state, in pertinent part: 1. As part ofthe First Degree Assault charge inthis case, the State was 

### required to prove thatthe defendant intended to cause Officer Norris great bodily harm, a term that includes bodily injurythat creates a probability of death. 

### 2. Evidence and arguments derived from that evidence, related to what the defendant was thinking atthe time he fired a gun at Officer Norris were relevant and admissible to prove the defendant's intent. 

### 3. During trial, thejury heard a recorded phone call made bythe defendant inwhich he said, "I should havejustwent outfucking blasting 

### at 'em like Iwanted to" when discussing the incident involving Officer Norris. 4. There was also evidence presented at trial thatthe defendantfired in the direction ofOfficer Norris at least 3-4 times and, when told he needed to stop or would be shot, the defendant laid down on the ground. 5. The State's argument thatthe defendant "wanted to kill as many cops, 

### specifically Officer Norris, on that day as he could" was a reasonable inference from the evidence presented at trial and was directly relevant 

### to the defendant's intent when firing the gun in [Opcer Norris' direction. 

### 6. The State's argumentthat the [S]tate did NOThave to prove the defendant's motivation behind his intent "Not what was his motivation 

### behind it, was he trying to flee, was he trying to become a notorious cop killer? What was his intent when he shot at Officer Norris" was also relevant to the State's burden to prove intent and the difference between intent and the motive behind the intent. 

### 7. Neither ofthe above statements were any more inflammatory than the 

### evidence that was presented at trial and neitherwere flagrant or ill intentioned. 

### The record supports the court'sfinding that the prosecutor's argument that Diltz

10No. 72205-1-1/11 "wanted to kill as many cops, specifically Officer Norris, on that day as he could" was based on reasonable inferences from the evidence at trial. The evidence showed that in order to have more ammunition, Diltzchose to take the 15-round magazine instead ofthe 10-round magazine when he grabbed the gun andjumped out ofthe moving truck. The testimony and forensic evidence showed Diltz fired the gun at leastfour times inthe direction of Officer Norris. And, without objection, the State presented the recording of 

### the phone call from jailwhere Diltz said he wanted to "just [go] out fuckin' blasting at 'em." The record supports the court's finding that the prosecutor's argumentthat the 

### State "did NOThave to prove" Diltz's motive, includingwhether he was "trying to flee" or "trying to become a notorious cop killer," was not improper or inflammatory. The distinction between intent and motive was particularly important because the defense 

### argued the State did not prove Diltz intended to inflict great bodily harm because his motivewas simply to get away.3 And as the court points out, the statementwas "relevant to the State's burden to prove intent and the difference between intent and the motive behind the intent." See State v. Boot. 89 Wn. App. 780, 789, 950 P.2d 964 (1998) (the 

### State is not required to prove motive as an essential elementofthe crime). The cases Diltz relies on are inapposite. See Russell. 125 Wn.2d at 

### 87-89 (prosecutor's argument that the defendantwould go to another state and kill again ifacquitted was speculative and notbased on the evidence); State v. Pierce. 169 Wn. App. 533, 537, 280 P.3d 1158 (2012) (prosecutor committed reversible misconduct by "fabricating an emotionally charged story of how the 

### victims might have struggled" and speculating on the defendant's "thought
3In addition, thejury instructions specifically state that thejury is to "actimpartially," to"not letyour emotions overcome yourrational thought process," and to"disregard anyremark, statement, orargument that is not supported by the evidence or the law in [the court's] instructions." 11No. 72205-1-1/12
process leading up to the crime" because the statements were based on evidence outside ofthe record); Campbell v. State. 679 So.2d 720, 724, 21 Fla. L. Weekly S287 (1996) (prosecutor's reference to "cop-killers" was improperwhere neither victim was a police officer and no officers were present at the time ofthe charged crimes); Williams v. State. 324 S.E.2d 544, 544, 172 Ga. App. 682 (1984) (prosecutor's reference to "two specific instances" of police officers being killed was improper because itwas unrelated to the defendant and based on evidence outside the record); People v. Brooks, 573 N.E.2d 1306, 1313-14, 214 lll.App.3d 531 (1991) (prosecutor's statement that "an officer

wasjust killed two weeks ago" was "clearly improper" because itwas unrelated to the defendant and based on evidence outside ofthe record). We affirm denial ofthe motion for a mistrial. 

# S^ffli^A

WE CONCUR:



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