State Of Washington v. Donald Calvin

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

STATE OF WASHINGTON,
No. 67627-0-1
Respondent,
ORDER GRANTING
v. RESPONDENT'S MOTION
FOR RECONSIDERATION
DONALD L. CALVIN AND AMENDING OPINION

Appellant.

The respondent, State of Washington, filed a motion for reconsideration. The

appellant, Donald Calvin, has filed an answer. A panel of the court has determined that

the motion should be granted, and the published opinion filed May 28, 2013 shall be

amended. Now, therefore, it is hereby

ORDERED that the motion is granted; it is further

ORDERED that the published opinion filed May 28, 2013 be amended as follows:

DELETE the last two sentences of the first paragraph on page 1 that read:

We affirm his convictions. Because there is no evidence to support the trial

court's finding that Calvin has the ability to pay court costs and the record does

not otherwise show that the trial court considered Calvin's financial resources, we

remand for the trial court to strike the finding and the imposition of court costs.

REPLACE those sentences with the following sentence:

We affirm.
No. 67627-0-1/2

DELETE section V. Legal Financial Obligations, which begins on page 20 and

ends on page 22, in its entirety.

REPLACE that section with the following:

V. Legal Financial Obligations

The trial court ordered Calvin to pay a total of $1,300 in legal financial

obligations (LFOs), including $450 in court costs. It also entered a boilerplate

finding stating that had the ability to pay LFOs:

The court has considered the total amount owing, the defendant's past,

present and future ability to pay legal financial obligations, including the

defendant's financial resources and the likelihood that the defendant's status will

change. The court finds that the defendant has the ability or likely future ability to

pay the legal financial obligations imposed herein.

Calvin challenges the imposition of $450 in court costs, arguing that the

boilerplate finding is not supported by evidence, and that the trial court was

required to determine whether he had the ability to pay before ordering the

payment of costs. The State argues that Calvin did not preserve this issue for

review and cannot raise it for the first time on appeal. We agree with the State.

Under RCW 10.01.160(3), "[t]he court shall not order a defendant to pay

costs unless the defendant is or will be able to pay them. In determining the

amount and method of payment of costs, the court shall take account of the

financial resources of the defendant and the nature of the burden that payment of

costs will impose." Our Supreme Court has made several things clear about this

2
No. 67627-0-1/3

statute. First, the sentencing court's consideration of the defendant's ability to

pay is not constitutionally required. State v. Blank. 131 Wn.2d 230, 241-42, 930

P.2d 1213 (1997) ("the Constitution does not require an inquiry into ability to pay

at the time of sentencing"). Accordingly, the issue raised by Calvin is not one of

constitutional magnitude that can be raised for the first time on appeal under

RAP 2.5(a).

Second, the imposition of costs under this statute is a factual matter

"within the trial court's discretion." State v. Curry. 118 Wn.2d 911, 916, 829 P.2d

166 (1992). Failure to identify a factual dispute or to object to a discretionary

determination at sentencing waives associated errors on appeal. In re Pers.

Restraint of Goodwin. 146 Wn.2d 861, 874-75, 50 P.3d 618 (2002); In re Pers.

Restraint of Shale. 160 Wn.2d 489, 494-95, 158 P.3d 588 (2007). Calvin's failure

to object below thus precludes review.

Third, "[njeither the statute nor the constitution requires a sentencing court

to enter formal, specific findings" regarding a defendant's ability to pay. Curry,

118 Wn.2d at 916. The boilerplate finding is therefore unnecessary surplusage.

If a challenge to the court's discretion were properly before us, striking the

boilerplate finding would not require reversal of the court's discretionary decision

unless the record affirmatively showed that the defendant had an inability to pay

both at present and in the future.

Finally, even if the finding were properly before us for review, we would

conclude that it is not clearly erroneous.1 Calvin testified to his high school
3
No. 67627-0-1/4

education, some technical training, and his past employment as a carpenter,

including a brief time in the union. Calvin also had retained, not appointed,

counsel at trial. These facts are sufficient to support the challenged finding under

the clearly erroneous standard.

Calvin also challenges the imposition of a $250 fine pursuant to RCW

9A.20.021. That provision, however, merely enumerates the maximum sentence

for Calvin's convictions. It does not contain a requirement that the court even

take a defendant's financial resources into account before imposing a fine, let

alone enter findings. Calvin has not articulated any basis for striking the fine.

1 We review the trial court's decision to impose discretionary financial

obligations under the clearly erroneous standard. State v. Baldwin. 63 Wn. App.

303, 312, 818 P.2d 1116, 837 P.2d 646, 837 P.2d 646 (1991). "A finding of fact

is clearly erroneous when, although there is some evidence to support it, review

of all of the evidence leads to a 'definite and firm conviction that a mistake has

been committed.'" Schrvvers v. Coulee Cmtv. Hosp.. 138 Wn. App. 648, 654,

158 P.3d 113 (2007) (quoting Wenatchee Sportsmen Ass'n v. Chelan County.

141 Wn.2d 169, 176, 4 P.3d 123 (2000)).

DELETE the first paragraph on page 24 with reads:

We affirm Calvin's convictions and remand for the trial court to strike the

finding that Calvin has the present or future ability to pay LFOs and the

imposition of $450 in court costs.

4
No. 67627-0-1/5

REPLACE that paragraph with the following paragraph:

We affirm.

DATED this "fl^dav of UCz\x>\>-C^ 2013.

WE CONCUR:

O rn
^ <=£$,,
ro ^>r::.
(NO "i-cf
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 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
No. 67627-0-1
Respondent,
DIVISION ONE
v.
PUBLISHED OPINION ^ cog
DONALD L, CALVIN

Appellant. FILED: May 28, 2013
CD -="0,

trffr..-.

Appelwick, J. —After an altercation with a park ranger, Calvin was convicted^
—4r-j

assault in the third degree and resisting arrest. He argues that his convictions a§ n§t-£

supported by substantial evidence, that he was entitled to a self-defense instruction,

that he was prejudiced by prosecutorial misconduct, that the trial court erred by

correcting and replacing an instruction during jury deliberations, and that there is no

evidence to support a finding that he has the ability to pay legal financial obligations.

We affirm his convictions. Because there is no evidence to support the trial court's

finding that Calvin has the ability to pay court costs and the record does not otherwise

show that the trial court considered Calvin's financial resources, we remand for the trial

court to strike the finding and the imposition of court costs.

FACTS

In April 2010, Alexander Moularas was a park ranger at Larrabee State Park in

Bellingham. The park closes to day users half an hour after sunset. On April 10,
Ranger Moularas closed the gate at 8:30 p.m. At around 9:15 p.m., he discovered a car

idling in front of the closed gate. Ranger Moularas was driving a dark blue truck with a

white stripe across it, a park shield on the door, and a law enforcement light bar on top.

He was wearing his uniform
No. 67627-0-1/2

When he pulled up, Ranger Moularas saw Donald Calvin standing outside of his

idling vehicle. Ranger Moularas rolled his window down, shut off the ignition, and

announced himself as a ranger. Calvin was aggravated, said that he just wanted to

take a shower, and asked if Ranger Moularas was going to let him in. Ranger Moularas

informed Calvin that the facilities were closed at that point and only available to

campers. In a strained tone, Calvin asked how much it was going to cost him to get in.

Ranger Moularas responded that the price for camping was $14.

Calvin approached the park vehicle and came within two feet of the open

window. Ranger Moularas was trained not to be approached in his vehicle. He became

apprehensive because of Calvin's proximity to his window and the minimal lighting in

the area. He exited his vehicle and repeated that Calvin could enter as a camper, but

needed to leave if he had no intention of camping. Calvin asked for Ranger Moularas's

name. Ranger Moularas responded by giving his first and last name, and Calvin

shouted, "Well, at least you know your damn name." At that point, Ranger Moularas

thought Calvin might have been under the influence of intoxicants. He took out his

flashlight and pointed it at Calvin's chest. Calvin said, "Get that F-ing light out of my

face," put his hand up, and reached toward Ranger Moularas. They were standing

approximately five feet apart.

Ranger Moularas told Calvin to get back. When Calvin did not retreat, he

sprayed him with a quick burst of pepper spray. Calvin advanced such that Ranger

Moularas had to back up approximately 10 feet. He yelled at Calvin to get back and get
No. 67627-0-1/3

on the ground. When Calvin kept coming with his hands toward his face in an

aggressive posture, Ranger Moularas struck him with his baton approximately six times.

Calvin began walking away. Ranger Moularas holstered his baton and went after

Calvin to arrest him for assault. He yelled, "Police, get on the ground," grabbed Calvin's

left arm, and took him to the ground. He was able to cuff Calvin's left wrist, but Calvin

would not yield his right arm. Ranger Moularas told Calvin to quit resisting and give his

arm, but Calvin struggled for approximately a minute before Ranger Moularas could get

the second cuff on. Ranger Moularas read Calvin his rights and Whatcom County

sheriffs took him from the scene. Calvin referred to Ranger Moularas as "ranger dick."

The State charged Calvin with assault in the third degree and resisting arrest.

Calvin offered a different version of events at trial. He testified that he initially

approached Ranger Moularas's vehicle because he could not understand what he was

saying. When Ranger Moularas asked him to leave, he returned to his vehicle.

According to Calvin, only then did Ranger Moularas get out of his vehicle. He walked

over toward Calvin, who was by then sitting in his car, shined his flashlight in, and told

Calvin to get out. When Calvin got out, Ranger Moularas shined a flashlight in his eyes.

Calvin put his hands up to block the light and Ranger Moularas immediately sprayed

him with pepper spray. Calvin testified that he had no intent to harm Ranger Moularas,

and did not move toward Ranger Moularas before Ranger Moularas started to beat him.

But, Calvin acknowledged that he was angry. Calvin knew Ranger Moularas was

associated with the park, but denied knowing he was a ranger. Calvin denied resisting

arrest, but stated he rolled and twisted to avoid being hit by Ranger Moularas's baton.
No. 67627-0-1/4

The jury found Calvin guilty on both charges. He appeals.

DISCUSSION

I. Sufficiency of the Evidence

Calvin argues that neither his conviction for assault in the third degree nor his

conviction for resisting arrest is supported by sufficient evidence. Evidence is sufficient

to support a conviction if, after the evidence and all reasonable inferences from it is

viewed in the light most favorable to the State, a rational trier of fact could find each

element of the crime proven beyond a reasonable doubt. State v. Green. 94 Wn.2d

216, 221, 616 P.2d 628 (1980).

A. Assault in the Third Degree

As instructed in this case, the elements of assault in the third degree are that (1)

Calvin committed an act with the intention of placing Ranger Moularas in apprehension

and fear of bodily injury, (2) the act in fact created a reasonable apprehension and

imminent fear of bodily injury, (3) Ranger Moularas was a law enforcement officer who

was performing his official duties, and (4) the acts occurred in the State of Washington.

Whether Calvin intended to actually inflict bodily injury is immaterial under the jury

instructions. Calvin argues that there was insufficient evidence to prove that Ranger

Moularas's fear of bodily injury was reasonable or that he intended to place Ranger

Moularas in fear of bodily injury.

1. Reasonable Apprehension and Fear

The incident occurred in a dark, isolated area. Ranger Moularas testified that

Calvin was aggravated and appeared unbalanced or under the influence. He testified
No. 67627-0-1/5

that Calvin reached his hand toward him, swore at him multiple times, and eventually

forced him to back up about 10 feet. Those facts are sufficient for a rational trier of fact

to conclude beyond a reasonable doubt that Ranger Moularas's apprehension and fear

were reasonable.

Calvin's arguments to the contrary are unavailing. He first offers other

reasonable interpretations of the evidence. For instance, he claims he has trouble

hearing and it is normal to approach someone when you are talking. He also argues he

raised his hands to his face only after Ranger Moularas aimed a flashlight at him, and

put his fists towards his face only when Ranger Moularas sprayed him with pepper

spray. But, in a sufficiency inquiry the court views the evidence in the light most

favorable to the State. Calvin's alternative interpretations are irrelevant.

Calvin next compares the State's evidence to other cases in which there was

more evidence that apprehension and fear were reasonable. In State v. Brown, a police

officer was placed in reasonable fear when the defendant spun around, unzipped his

jacket, removed a cigarette lighter that looked like a handgun, and pointed the lighter at

the officer. 140 Wn.2d 456, 461-62, 998 P.2d 321 (2000). In State v. Godsev. a police

officer was placed in reasonable fear when the defendant approached him with fists up,

invited him to u,[c]ome on,' and took a step toward him." 131 Wn. App. 278, 288, 127

P.3d 11 (2006) (alteration in original). But, those were not sufficiency cases. The mere

fact that Calvin's actions in this case were not as overt as the defendants' acts in those

cases does not mean there was insufficient evidence here.
No. 67627-0-1/6

Finally, Calvin argues that he did not make a true threat and the use of a strained

or sarcastic tone of voice does not create a reasonable fear of assault. But, Calvin's

tone was not the only evidence that Ranger Moularas's fear was reasonable. And, the

State was not required to prove that Calvin made a true threat because that is not an

element of assault. See RCW 9A.36.031(1)(a).

2. Intent

In arguing that he did not have the requisite intent, Calvin points to his own

testimony and compares this case to another case with more egregious facts to

demonstrate that he had no intent to place Ranger Moularas in fear of bodily injury.

Neither of those tactics establishes the absence of facts sufficient to find that Calvin

intended to create a fear of bodily injury. Calvin acknowledged that he was angry when

Ranger Moularas shined the flashlight on him and conceded that he may have told

Ranger Moularas to get "that fucking flashlight out of my face." Ranger Moularas

testified that as Calvin said that, he put his hand up and moved toward him. After

Ranger Moularas sprayed Calvin with pepper spray, Calvin kept his fists up toward his

face and continued to come toward him such that he had to back up approximately 10

feet. Calvin's acknowledged anger, combined with his movement toward Ranger

Moularas, provide sufficient evidence for a rational trier of fact to find that Calvin

intended to create a fear of bodily injury.

B- Resisting Arrest

The jury was instructed that, to convict Calvin of resisting arrest, the State had to

prove that he intentionally prevented or attempted to prevent a peace officer from
No. 67627-0-1/7

lawfully arresting him. Calvin argues that he could not have committed the crime of

resisting arrest, because he did not know that Ranger Moularas was a law enforcement

officer, did not know that he was under arrest, and did not use force.

Calvin relies on State v. Bandy for the proposition that, "it is essential that [the]

accused have knowledge that the person obstructed is an officer" and "it is incumbent

on an officer, seeking to make an arrest, to disclose his official character, if not known to

the offender." 164 Wash. 216, 219, 2 P.2d 748 (1931). In Bandy, a woman was

convicted of interfering with a public officer in the performance of his duties after

interfering with the arrest of her father. Jd. at 217-19. There was insufficient evidence

to support her conviction, because there was no evidence that arresting officers

displayed badges and there was no other reason for anyone in the area to understand

that her father was being arrested. Jd. at 219-21. In contrast, in this case Ranger

Moularas was wearing his uniform and driving a marked car at the time of the incident.

When he first approached Calvin, he identified himself as a ranger. When he took

Calvin to the ground, he identified himself as "police." At trial, Calvin acknowledged that

he knew Ranger Moularas was in a marked vehicle, knew he was associated with the

park, and recognized that he was enforcing park rules. That evidence was sufficient for

a rational trier of fact to determine that Calvin knew Ranger Moularas was a law

enforcement officer.

Calvin next asserts that Ranger Moularas never said he was under arrest. He

relies on cases in which the defendants were explicitly informed they were under arrest

before they resisted. See State v. Ware. 111 Wn. App. 738, 740-41, 46 P.3d 280
No. 67627-0-1/8

(2002); State v. Simmons. 35 Wn. App. 421, 422, 667 P.2d 133 (1983). But, neither of

those cases holds that an arresting officer must formally state that a person is under

arrest for that person to be aware they are under arrest. A rational trier of fact could find

that when a law enforcement officer identified himself as "police," told Calvin to get on

the ground, and started to place handcuffs on him, Calvin knew he was under arrest.

Calvin also argues that he did not use the force necessary to be convicted of

resisting arrest, because he was merely recalcitrant. His argument is based on a single

sentence in State v. Hornadav. 105 Wn.2d 120, 131, 713 P.2d 71 (1986). In that case,

the evidence showed that, after the defendant was arrested, he refused to voluntarily

enter the backseat of the police and had to be forcibly placed there. Id at 122.

Counsel commented at trial that the defendant swung his elbow at a police officer, but

there was no testimony that supported that assertion. Jd. at 131. Thus, the court came

to the sensible conclusion that a defendant, already detained, is merely "recalcitrant"

and does not commit resisting arrest by refusing to voluntarily enter a police car. Jd at

131. Despite Calvin's persistent argument that he did not use sufficient force to be

convicted of resisting arrest, "force" is not an element of the crime. The State bore the

burden to prove that Calvin prevented or attempted to prevent his arrest. While Calvin

was on the ground, Ranger Moularas advised him to stop resisting. Ranger Moularas

testified that he struggled with Calvin for approximately one minute before he was able

to handcuff Calvin's second hand. During that time, Ranger Moularas did not have

Calvin fully under his control.

8
No. 67627-0-1/9

There was sufficient evidence to establish that Calvin knew Ranger Moularas

was a law enforcement officer, knew he was being placed under arrest, and attempted

to prevent his arrest.

II. Self-Defense Instruction

Calvin argues that defense counsel was ineffective in failing to request a self-

defense instruction. To prevail on a claim of ineffective assistance, a defendant must

show that counsel's performance fell below an objective standard of reasonableness

based on consideration of ail the circumstances, and that the deficient performance

prejudiced the trial. Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984). The reasonableness inquiry presumes effective representation.

State v. McFarland. 127 Wn.2d 322, 336, 899 P.2d 1251 (1995). To determine whether

counsel was deficient by failing to propose a jury instruction, the court considers

whether the defendant was entitled to the instruction and whether there was a strategic

or tactical reason not to request the instruction. Jd; State v. Powell. 150 Wn. App. 139,

154-55, 206 P.3d 703 (2009).

Here, there was a clear strategic reason not to request a self-defense instruction,

and even ifone had been proposed, Calvin was not entitled to it. Calvin argued that he

did not assault Ranger Moularas and did not resist arrest. To also argue that he used

force against Ranger Moularas only in self-defense would have been completely
contradictory.
No. 67627-0-1/10

Further, Calvin did not present evidence that would have supported a self-

defense instruction. In general, reasonable force in self-defense is justified ifthere is an

appearance of imminent danger. State v. Bradley. 141 Wn.2d 731, 737, 10 P.3d 358

(2000). But, the use of force in self-defense against an arresting law enforcement

officer is permissible only when the arrestee actually faces an imminent danger of

serious injury or death, jd at 737-38. Calvin merely asserts that "a person in Mr.

Calvin's position would have been afraid that he was facing imminent and serious bodily

harm." That argument goes to the appearance of danger, not the existence of actual

danger. Calvin has not shown that he would he have been entitled to a self-defense

instruction had one been proposed. He has not established that he received ineffective

assistance of counsel.

'"• Prosecutorial Misconduct

Prosecutorial misconduct is grounds for reversal if the prosecuting attorney's

conduct was both improper and prejudicial. State v. Monday. 171 Wn.2d 667, 675, 257

P.3d 551 (2011). The court reviews a prosecutor's conduct in the full trial context,

including the evidence presented, the total argument, the issues in the case, the

evidence addressed in argument, and the jury instructions. ]d A prosecutor has wide

latitude in closing argument to draw reasonable inferences from the evidence and to

express such inferences to the jury. State v. Boehninq. 127 Wn. App. 511, 519, 111

P.3d 899 (2005). Absent a timely objection, reversal is required only if the conduct is so

flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could

not have been neutralized by a curative instruction to the jury. State v. Warren. 165

10
No. 67627-0-1/11

Wn.2d 17, 43, 195 P.3d 940 (2008). Calvin argues the prosecutor committed

misconduct by misstating the law, disparaging defense counsel, commenting on

Calvin's constitutional rights, and commenting on Calvin's credibility.

A. Misstating the Law

In rebuttal closing argument, the prosecutor argued:

I hate to sound too facetious but that was quite a story. You know, I think
the defense counsel here is talking to you and he is telling you that Ranger
Moularas is a fine person yet he is calling him a liar. That's what he's
doing. This is just outrageous, he's calling him a liar.

The trial court sustained defense counsel's objection and asked the prosecutor to

"alter the word." The prosecutor continued:

I understand, Your Honor. He is saying he is untruthful. He is saying that
he is not coming here and telling you the truth. He is saying that Ranger
Moularas didn't tell the truth from the beginning. Well, actually maybe told
the truth right to Deputy Osborn but after that no. For what reason?
Why? I mean, what motive would Ranger Moularas have to not tell you
the truth? To change his report about what had actually happened? Why
would he call him a fine person but also say he is not telling the truth?
That's a big problem. If he is not telling the truth that's a big problem. Big,
big, big problem. You know, that's his theory, that Ranger Moularas is just
coming in here with these terrible untruths.

Defense counsel did not object to the prosecutor's revision.

Calvin argues that the prosecutor's arguments suggested that the jury had to find

that Ranger Moularas was lying in order to acquit Calvin. Such an argument misstates

the law, the role of the jury, and the appropriate burden of proof. State v. Fleming. 83

Wn. App. 209, 213, 921 P.2d 1076 (1996).

But, the prosecutor is entitled to respond to defense counsel's arguments.

Defense counsel argued in closing that Calvin and Ranger Moularas offered different

versions of events and that the jury had to find that Ranger Moularas's version was

11
No. 67627-0-1/12

correct to find Calvin guilty. Defense counsel argued that Calvin's version of events

was corroborated by an initial statement of probable cause prepared by a responding

officer, and Ranger Moularas's version was contradicted by the statement. The

prosecutor was entitled to respond to defense counsel's argument that Ranger

Moularas was untruthful.

B. Disparaging Counsel and Commenting on Constitutional Rights

The prosecutor stated, "You know, another thing for you to consider is whether or

not to trust [defense counsel]?" The trial court sustained defense counsel's objection.

The prosecutor then advised the jury to, "consider [defense counsel's] argument and

decide if it's trustworthy." Defense counsel did not object to the prosecutor's revised

statement. The prosecutor also argued:

He is blaming the victim. He is blaming Ranger Moularas for being in a
position and then getting assaulted. Gee, if Ranger Moularas didn't
contact him nothing would have happened, right? There would be no
crime. Blaming the victim, that's not fair. Nobody wants to see that. It's
not right.

Defense counsel did not object.

Calvin argues that these statements were misconduct, because the prosecutor

disparaged defense counsel and because a complaint that defense counsel is blaming

the victim is a comment on the defendant's right to cross-examine the State's

witnesses.

It is improper for the prosecutor to disparagingly comment on defense counsel's

role or impugn the defense lawyer's integrity. State v. Thoroerson. 172 Wn.2d 438,

451, 258 P.3d 43 (2011). Thus, in Thoroerson. it was improper for the prosecutor to

refer to the defense counsel's presentation of the case as "'bogus'" and "'sleight of

12
No. 67627-0-1/13

hand." Jd at 451-52. But, defense counsel did not object and the court concluded that

a curative instruction would have alleviated any prejudicial effect of the attack on

defense counsel's strategy. Jd at 452. In Warren, it was improper for the prosecutor to

tell the jury that the "'number of recharacterizations'" in defense counsel's argument

was "'an example of what people go through in a criminal justice system when they deal

with defense attorneys."' 165 Wn.2d at 29. But, defense counsel did not object and the

court concluded that the comments were not so flagrant and ill-intentioned that no

instruction could have cured them. Jd at 30. In State v. Negrete. the prosecutor told

the jury he had "'never heard so much speculation'" in his life, and that defense counsel

"'is being paid to twist the words of the witnesses.'" 72 Wn. App. 62, 66, 863 P.2d 137

(1993) (emphasis omitted). Defense counsel objected and the trial court sustained the

objection, but defense counsel did not request a mistrial or a curative instruction. Id. at

66. The court determined that the remark was improper, but not irreparably prejudicial.

Jd at 67. It noted that defense counsel's failure to move for a curative instruction or

mistrial strongly suggested the argument did not appear particularly prejudicial in the

context of the trial. Jdat67.

In this case, the prosecutor advised the jury to consider whether defense

counsel's argument was trustworthy and stated that defense counsel was "blaming the

victim." Those statements are not as inflammatory as the prosecutors' statements in

Thorqerson. Warren, or Negrete. Although defense counsel initially objected to one of

the statements, the objection was sustained and defense counsel did not object to the

prosecutor's altered argument. Calvin has failed to show, and the record does not

13
No. 67627-0-1/14

demonstrate, that further objection would have been futile. Thus, he must establish that

the prosecutor's comments were so flagrant and ill-intentioned that he was irreparably

prejudiced. The fact that defense counsel did not make further objections, or request a

mistrial or curative instruction, strongly suggests that the comments did not appear

unduly prejudicial in the context of trial. Calvin has failed to establish that any prejudice

could not have been eliminated by a curative instruction.

Calvin also urges that the prosecutor's comment that defense counsel was

"blaming the victim" was a comment on Calvin's rights to cross-examine the State's

witnesses, to testify on his own behalf, and to be represented by counsel. His argument

is limited to a bare assertion that his rights were violated, together with citation to the

United States Constitution and a case in which the prosecutor argued that the

defendant only represented himself because he had a strong desire to have power and

be in control. See State v. Moreno. 132 Wn. App. 663, 672, 132 P.3d 1137 (2006).

Calvin has failed to articulate how his rights were violated by the prosecutor's

comments.

C. Commenting on Calvin's Credibility

A prosecutor may not express his personal opinion of the credibility of witnesses

or the guilt or innocence of the accused. State v. Reed. 102 Wn.2d 140, 145,684 P.2d

699 (1984). But, prosecutors are entitled to argue inferences from the evidence, and

there is no prejudicial error unless it is "'clear and unmistakable'" that counsel is

expressing a personal opinion. State v. Brett. 126 Wn.2d 136, 175, 892 P.2d 29 (1995)

(quoting State v. Sargent. 40 Wn. App. 340, 344, 698 P.2d 598 (1985)). Thus, it was

14
No. 67627-0-1/15

not improper for the prosecutor to argue, "I would suggest that one reason you might

want to believe Pat Milosevich on that issue is that she at the time those events were

occurring was watching her husband of 33 years being blown away by a .410 shotgun."

Jd at 175. In contrast, it was improper for a prosecutor to state, "I believe Jerry Lee

Brown, I believe him." State v. Sargent. 40 Wn. App. 340, 343-44, 698 P.2d 598 (1985)

(emphasis omitted).

In this case, the prosecutor recited a long list of things that did not make sense in

Calvin's testimony when compared to other evidence and his own inconsistent

testimony. Then, the prosecutor told the jury that Calvin was "just trying to pull the wool

over your eyes." The trial court overruled defense counsel's objection. The

prosecutor's remarks more closely align with the statements in Brett than with the

statements in Sargent. In context, the comments reflect an explanation of the evidence,

not a clear and unmistakable expression of personal opinion.

IV. Law of the Case Doctrine

Pursuant to CrR 6.15, it is within the province of the trial court to instruct the jury.

Prior to giving the instructions, the parties are afforded an opportunity to object to the

giving of any instruction or the refusal to give a requested instruction. CrR 6.15(c).

Thus, any problems with jury instructions should generally be resolved before

deliberations begin. But, the trial court also has discretion to give supplemental

instructions. See, e.g.. State v. Ng. 110 Wn.2d 32, 42, 750 P.2d 632 (1988); State v.

Frandsen. 176 Wash. 558, 563-64, 30 P.2d 371 (1934); State v. Miller. 78 Wash. 268,

275-76, 138 P. 896 (1914); State v. Frederick. 32 Wn. App. 624, 626, 648 P.2d 925

15
No. 67627-0-1/16

(1982). CrR 6.15(f) expressly contemplates that the trial court may provide additional

instructions after deliberations begin, so long as the instructions do not "suggest the

need for agreement, the consequences of no agreement, or the length of time a jury will

be required to deliberate." Calvin nevertheless argues the trial court erred by correcting

and replacing an instruction during jury deliberations.

The trial court originally gave an assault definition based on 11 Washington

Practice: Washington Pattern Jury Instructions: Criminal 35.50, at 547 (3d ed. 2008)

(WPIC) that included the term "unlawful force:"

An assault is an act, with unlawful force, done with the intent to
create in another apprehension and 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.

An act is not an assault, if it is done with the consent of the person
alleged to be assaulted.

During deliberations, the jury asked the trial court, "How does the law define

'unlawful force?'" The trial court correctly reasoned that the instruction misstated the

posture and facts of the case. The term "unlawful force" is only necessary in the

definition of assault when there is a specific argument from the defense that the use of

force was somehow lawful. See WPIC 35.50, at 548. Without any specific lawful force

argument, self-defense or otherwise, the trial court was faced with a dilemma. It could

issue a response such as, "unlawful force is force that is not lawful." But, that response

would be unhelpful. Alternatively, it could give a supplemental instruction that

enumerated each type of lawful force. But, that option would give Calvin the benefit of

arguments that he did not make. Instead, the trial court drafted a new definition of

assault that omitted the "unlawful force" language. Defense counsel objected on the

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No. 67627-0-1/17

grounds that the State made a mistake and had to live with that mistake, because the

instructions had already been submitted. The trial court elected to give the new

instruction:

An assault is an act done with the intent to create in another
apprehension and 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.

The trial court gave defense counsel an opportunity to reargue all or portions of the

case. Counsel declined and asked for a mistrial. But, in doing so, defense counsel

expressed that Calvin would not be waiving a claim of double jeopardy.

Under the law of the case doctrine jury instructions not objected to become the

law of the case. State v. Hickman. 135 Wn.2d 97, 101-02, 954 P.2d 900 (1998). Thus,

when the State adds an unnecessary element to a to-convict instruction and the jury

convicts the defendant, the unnecessary element must be supported by sufficient

evidence. Jd at 105. Here, Calvin contends that the State undertook to prove "unlawful

force."

Although the State argues that the law of the case doctrine applies only when an

element is added to a to-convict instruction, the doctrine is not limited to that application.

It is a broad doctrine that has been applied to to-convict instructions and definitional

instructions. See, e.g.. City of Spokane v. White. 102 Wn. App. 955, 964-65, 10 P.3d

1095 (2000); State v. Price. 33 Wn. App. 472, 474-75, 655 P.2d 1191 (1982); Englehart

v. Gen. Elec. Co.. 11 Wn. App. 922, 923, 527 P.2d 685 (1974). It has been applied in

both criminal and civil cases. See, e.g.. Hickman. 135 Wn.2d at 102; Crippen v.

Pulliam. 61 Wn.2d 725, 732, 380 P.2d 475 (1963).

17
No. 67627-0-1/18

The doctrine is based on the premise that whether the instruction in question was

rightfully or wrongfully given, it was binding and conclusive upon the jury. Hickman. 135

Wn.2d at 101 n.2. Thus, a party cannot challenge unobjected to jury instructions for the

first time on appeal, or conversely disavow jury instructions on appeal that were

acquiesced to below. That basic function serves to avoid prejudice to the parties and

ensure that the appellate courts review a case under the same law considered by the

jury.

Here, an objection preserved the issue for review and the jury reached a verdict

based on the supplemental instruction. Because the trial court has discretion to give

supplemental instructions, the issue is not whether the law of the case doctrine bound

the State to the "unlawful force" language at the time the jury was given instructions.

Rather, our inquiry is whether the trial court abused its discretion when the jury sought

further clarification and the trial court identified and corrected a problem. In State v.

Ransom, the State charged the defendant with possession of cocaine with intent to

deliver. 56 Wn. App. 712, 712-13, 785 P.2d 469. The State did not pursue an

accomplice theory against the defendant. Id at 713. But, during deliberations the jury

asked the trial court:

"If someone is an accessory to the actual or constructive or attempted
transfer of a controlled substance from one person to another are they
both guilty of the same?"
Id The trial court then gave an accomplice instruction over defense counsel's

objection. Jd The Court of Appeals reversed. Jdat715. It concluded that, although

the trial court has discretion to give further instructions after deliberations begin, those

18
No. 67627-0-1/19

instructions may not go beyond matters that had been, or could have been, argued to

the jury. Id at 714. The defendant was entitled to rely on the fact that the State chose

not to pursue accomplice liability, which is a distinct theory of criminal culpability. Id

Accordingly, the trial court erred and a new trial was granted. Jd at 715.

In State v. Hobbs. the State acquiesced to an unnecessarily narrow venue

element that required the jury to find that the defendant committed the crime in King

County. 71 Wn. App. 419, 420-21, 859 P.2d 73 (1993). During jury deliberations, the

trial court granted the State's motion to amend the instruction by deleting "King County"

and inserting "State of Washington." Jd at 421. Defense counsel explained both below

and on appeal that she was aware during trial that the State was not going to be able to

prove venue and made strategic trial decisions based on that knowledge. Id at 424.

On appeal, we recognized that the trial court can give supplemental instructions so long

as they do not go beyond matters that had been, or could have been, argued to the jury.

Id. at 424. But, because defense counsel had adapted her trial strategy to the State's

additional undertaking, we found that there was actual prejudice. Jd at 420, 425. We

held that when presented with the State's motion to amend, the trial court's only viable

options were to hold the State to its election or declare a mistrial. Id at 425. We

remanded for a new trial where the jury could be properly instructed from the outset. Jd.

at 425.

Unlike in those cases, there was no prejudice here. There is no evidence, or

even any suggestion, that Calvin adapted his trial strategy to the inclusion of the

"unlawful force" language. Defense counsel was given the opportunity to reargue the

19
No. 67627-0-1/20

case but declined. Calvin does not articulate why that remedy was inadequate.

Further, there is no dispute that the trial court's supplemental instruction was a correct

statement of the law. Calvin did not argue lawful force and was not entitled to any

lawful force instructions or the inclusion of unlawful force in the definition of assault.

The trial court did not abuse its discretion.1

V. Legal Financial Obligations

The trial court ordered Calvin to pay a total of $1,300 in mandatory and

discretionary legal financial obligations (LFOs). It is also entered a boilerplate finding

stating that Calvin had the ability to pay LFOs:

The court has considered the total amount owing, the defendant's past,
present and future ability to pay legal financial obligations, including the
defendant's financial resources and the likelihood that the defendant's
status will change. The court finds that the defendant has the ability or
likely future abilityto pay the legal financial obligations imposed herein.
Calvin argues that the finding is not supported by evidence, and that the trial court was

required to determine whether Calvin had the abilityto pay before ordering the payment

of costs.2

We review the trial court's decision to impose discretionary LFOs under the

clearly erroneous standard. State v. Baldwin. 63 Wn. App. 303, 312, 818 P.2d 1116,

1 Calvin also argues that the trial court's substitution violated the appearance of
fairness doctrine and constituted an impermissible comment on the evidence. It is
unclear how those doctrines are violated when the trial court deliberated in response to
an inquiry from the jury, discussed the issue with both parties, gave a legally correct
substitute instruction, and gave the parties an opportunity to reargue their cases. A jury
instruction that states the law correctly and concisely and is pertinent to the issues of
the case does not constitute a comment on the evidence. State v. Johnson. 29 Wn.
App. 807, 811,631 P.2d 413 (1981). Calvin's claims have no merit.
2 Calvin did not make these arguments below. But, illegal or erroneous
sentences may be challenged for the first time on appeal. State v. Ford. 137 Wn.2d
472, 477, 973 P2d 452 (1999).

20
No. 67627-0-1/21

837 P.2d 646 (1991). Different components of the LFOs imposed on a defendant

require separate analysis. Id. Here, Calvin challenges the imposition of $450 for court

costs and a $250 fine.

A. Court Costs

The trial court may order a defendant to pay court costs pursuant to RCW

10.01.160. But,

The court shall not order a defendant to pay costs unless the defendant is
or will be able to pay them. In determining the amount and method of
payment of costs, the court shall take account of the financial resources of
the defendant and the nature of the burden that payment of costs will
impose.

RCW 10.01.160(3). It is well-established that this provision does not require the trial

court to enter formal, specific findings. See State v. Currv. 118 Wn.2d 911, 916, 829

P.2d 166 (1992). Rather, it is only necessary that the record is sufficient for us to

review whether the trial court took the defendant's financial resources into account.

State v. Bertrand. 165 Wn. App. 393, 404, 267 P.3d 511 (2011), review denied. 175

Wn.2d 1014, 287 P.3d 10 (2012). But, where the trial court does enter a finding, it must

be supported by evidence.

In this case, the only evidence of past employment was Calvin's testimony at trial

that he used to be a carpenter. There was no evidence at all of present or future

employment. And, the only evidence of Calvin's financial resources was his testimony

that he lived in a mobile home that did not have running water.3 At sentencing, the trial
court did not make any inquiry into Calvin's resources or employability. Indeed, the

3 Calvin did not have court-appointed defense counsel, but the record does not
establish who paid for his attorney.

21
No. 67627-0-1/22

State does not even argue that there is evidence to support the finding. Rather, it

argues that "there is nothing in the record to show that Calvin will not have the ability to

pay his legal financial obligations in the future." (Emphasis in original.) But, the inquiry

is simply whether there is evidence to support the finding actually entered.4 The trial
court's finding is not supported. And, the record does not show that the trial court took

Calvin's financial resources and ability to pay into account.

We remand for the trial court to strike the finding and the imposition of court

costs.

B. Fine

Calvin also challenges the imposition of a $250 fine pursuant to RCW 9A.20.021.

That provision, however, merely enumerates the maximum sentence for Calvin's

convictions. It does not contain a requirement that the trial court enter findings or even

take into account a defendant's financial resources before imposing a fine. Calvin has

not articulated any basis for striking the fine.

VI. Statement of Additional Grounds

A defendant may submit a pro se statement of additional grounds for review

pursuant to RAP 10.10. Our review of such statements, however, is subject to several

practical limitations. For instance, we only consider issues raised in a statement of
additional grounds that adequately inform us of the nature and occurrence of the
alleged errors. State v. Alvarado. 164 Wn.2d 556, 569, 192 P.3d 345 (2008). Further,

4 In the absence of a finding, our inquiry would be whether the record revealed
that the trial court took Calvin's financial resources into account and considered the
burden it would impose on him as required by RCW 10.01.160.

22
No. 67627-0-1/23

we only consider arguments that are not repetitive of briefing. RAP 10.10(a). Finally,

issues that involve facts or evidence not in the record are properly raised through a

personal restraint petition, not a statement of additional grounds. Alvarado. 164 Wn.2d

at 569.

In an impassioned statement of additional grounds, in which Calvin asks that we

reverse on a moral basis, Calvin lists 29 assignments of error. Six of those

assignments of error, concerning the trial court's substitution of a jury instruction,

defense counsel's failure to request a self-defense instruction, and the sufficiency of the

evidence, are repetitive of appellant counsel's briefing. Another 17 of his assignments

of error concern the effectiveness of defense counsel, and particularly whether defense

counsel adequately emphasized certain evidence or legal arguments. But, "'[deficient

performance is not shown by matters that go to trial strategy or tactics.'" State v. Studd.

137 Wn.2d 533, 551, 973 P.2d 1049 (1999) (emphasis omitted) (alteration in original).

Further, those arguments largely rely on facts or evidence outside the record. Calvin's

remaining six arguments concern juror misconduct. But, there is no evidence of juror

misconduct in the record. To the extent that Calvin's arguments concern facts and

evidence not in the record, his concerns should be raised in a personal restraint

petition.5

5 At our direction, the court clerk denied Calvin's motion to continue oral
argument for 120 days, for leave to submit a pro se supplemental brief, for leave to file a
personal restraint petition, and to have his pro se supplemental brief and personal
restraint petition heard simultaneously with his direct appeal. In the week before oral
argument, Calvin filed two additional motions. He first filed a motion to modify the
clerk's ruling. Calvin miscomprehends the original denial. He does not need leave to
file a personal restraint petition. However, we deny his request to continue this case so
that he may file an additional brief and a personal restraint petition to be heard together
with his direct appeal. In a second motion, filed only one court day before oral

23
No. 67627-0-1/24

We affirm Calvin's convictions and remand for the trial court to strike the finding

that Calvin has the present or future ability to pay LFOs and the imposition of $450 in

court costs.

WE CONCUR:

y+jL,«A^AC$. C^Uyy^ J

argument, Calvin asked to withdraw ten arguments from his statement of additional
grounds and partially withdraw another eight. We deny his request.

24