IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, No. 71844-4-1
Respondent,
v. PUBLISHED OPINION
HARUN MOHAMED OSMAN,
Appellant. FILED: January 25, 2016
Schindler, J. — Harun Mohamed Osman seeks reversal of the assault in the
fourth degree jury conviction. Osman contends that during closing argument, the
prosecutor improperly shifted the burden of proof, and the court erred in sustaining the
State's objection and impermissibly limited the scope of the defense closing argument.
We hold the prosecutor properly argued reasonable inferences from the evidence and
did not improperly shift the burden of proof to the defense. We conclude the court erred
in sustaining the objection to the description of the meaning of "abiding belief as
inaccurate and limited the scope of the defense argument. However, because the error
was harmless beyond a reasonable doubt, we conclude the jury verdict would have
been the same absent the error, and affirm.
No. 71844-4-1/2
FACTS
After returning from work on November 29, 2012, Tammy Maxwell asked her son
Nicholas to drop her off at the Castaway Tavern while he went to the library. Maxwell
sat at the bar and had a couple of drinks. Harun Mohamed Osman approached
Maxwell and offered to buy her another drink. Shortly thereafter, Nicholas sent Maxwell
a text message that he was outside in the parking lot.
Maxwell got up, put down her drink, and left. Osman followed Maxwell outside
and asked her to sit in his car and talk. In an effort to get him to leave her alone,
Maxwell said she agreed to sit in his car and talk. Maxwell told Nicholas to wait and
"she would be right back."
A few minutes later, Osman drove out of the Castaway Tavern parking lot at a
highspeed. Nicholas called Maxwell on her cell phone. Before the phone
disconnected, Maxwell yelled Nicholas should follow the car. Nicholas tried calling back
a number of times. At one point, the call connected and he heard Maxwell demanding
Osman give her cell phone back.
At approximately 11:00 p.m., Federal Way Police Department Officer Chris
Martin, Officer Gabriel Castro, and Officer Robert Guillermo detained suspects in a
stolen vehicle. When Officer Martin heard someone screaming for help from across the
intersection, he ran in the direction of the screams.
As Officer Martin ran into a parking lot behind an espresso stand and a
McDonald's, he saw a car "parked nose in." A female, later identified as Tammy
Maxwell, was sitting in the driver's seat of the vehicle with her legs hanging out. A man,
later identified as Harun Mohamed Osman, was "standing over her punching her" in the
No. 71844-4-1/3
face with a closed fist. Officer Martin ordered Osman to stop hitting Maxwell. When
Osman "came out" of the car, he had a torn white bra strap in his hand. Officer Martin
said Maxwell was "afraid, crying, [and] upset." Officer Martin saw marks on her face,
and Maxwell had broken several acrylic fingernails. Officer Martin detained Osman until
Officer Castro and Officer Guillermo arrived. Officer Castro took photographs of
Maxwell's facial injuries and her torn clothing. Maxwell gave the police a written
statement under penalty of perjury. The next morning, Maxwell realized she lost a hoop
earring during the "struggle" with Osman.
On December 4, Detective Raymond Unsworth executed a warrant to search
Osman's car. Detective Unsworth found a wallet between the driver's seat and the
center console. Detective Unsworth later found a hoop earring on the floorboard of the
driver's side of the car.
The State charged Osman with unlawful imprisonment, felony harassment, and
assault in the fourth degree. Osman entered a plea of not guilty.
A number of witnesses testified during trial including Maxwell, her son Nicholas,
Officer Martin, Officer Castro, Officer Guillermo, and Detective Unsworth. The court
admitted into evidence a number of photographs. The defense did not call any
witnesses. The defense theory was that Maxwell willingly got into the car, Osman did
not threaten to kill Maxwell, and because it was a mutual struggle, Osman did not
commit assault.
Maxwell testified that she worked as an in-home caregiver for persons with
disabilities and the elderly. Maxwell said that on November 29, 2012, she was very
affected by a terminally ill client she worked with at the end of the day. When Maxwell
No. 71844-4-1/4
got home, she asked Nicholas to drop her off at the Castaway Tavern while he was at
the library. Maxwell said she sat at the bar and had a few drinks. Maxwell testified that
Osman approached her and tried "to strike up a conversation" and buy her a drink.
Maxwell testified Osman was insistent and she was "annoyed."
You know, he kept saying, you know, I'd like to talk to you, I want to talk to
you, I'd like to get to know you, I want to talk to you. . . .
... He wasn't taking no for an answer. I finished my drink and he
offered to buy me another drink and I told him that I can get my own drink
and he was like no, let me get it. And I was like no I can get it myself.
And he just basically told the bartender, no, I've got her drink. And the
bartender made the drink for me and sat it down and ... so then I just
went ahead and I was like fine, I'll just drink the drink figuring that maybe
that'll let it be.
It didn't. It continued. He continued talking.
After Nicholas sent a text that he was in the parking lot, Maxwell left. Maxwell
said Osman followed "right behind." She said Osman opened the door to his car and
"kept asking me to sit and talk with him, would I sit and talk with him." Maxwell testified
she agreed to sit in the car. "Really to be honest because he was bothering me and it
was like if this just would be just done. .. . [I]t was very persistent. It wasn't to where I
could say, could you just leave me alone."
According to Maxwell, after Osman "shut the door," she "wanted to get back out
of the car" but "couldn't figure out how to open the door because the door was locked."
Maxwell testified that Osman said, "[J]ust sit and talk for a minute, just sit and talk," but
then he started the car and said, "I'm just going to take you to your son it's raining."
Maxwell testified that she said, "[N]o, it's just right there I can walk. I don't want you to
start the car. I don't want you to take me over there."
No. 71844-4-1/5
Maxwell said Osman "put the car in reverse and just tore out of the parking lot."
Maxwell testified she was "yelling on the phone, Nick, follow us, Nick, follow us," and
Osman said, "[l]f your son follows us I'll kill him too." Maxwell testified she fought the
whole time and was doing everything she could to get out of the car, but Osman was
"trying to keep me in my seat."
He kept grabbing me around this side, on the waist, on the breast area,
trying to hang on to me.
... I was trying to get out, like I was trying to open the door to jump
out of the car. And he was trying to keep me in my seat.
Maxwell testified Osman "turned in to this dark area by McDonalds" and when he
stopped the car, she got out. Maxwell said that as she "started to run towards the
McDonalds," Osman came "around the front of the car onto my side and he was trying
to stop me. And get me back in the car." Maxwell testified that after Osman grabbed
her cell phone and walked to the driver's side of the car, she reached around Osman as
he "leaned into the driver's side" of the car to "grab[ ] my phone back and struggled with
him."
Maxwell said that just before the police officers arrived, Osman "punched me in
the side of the face" and "got me pretty good." Maxwell testified, in pertinent part:
I was seriously shaken. I — he had hit me here in the face so that was
sore and red. He tore my clothes, like on the side here. And my bra was
broken. The bra clasp had cut into me so I was bleeding. I was very
shaken. Very, very shaken.
. . . [M]y hands hurt because I had fought so — like broke several of
— I had acrylic nails, I had broke several nails in the argue — in the fight.
I lost an earring.
On cross-examination, Maxwell testified that while at the Castaway Tavern, "I
was on my third drink" and "feeling tipsy." Maxwell said what happened is "kind of
No. 71844-4-1/6
fuzzy" and she did not know how she "ended up in his car." Maxwell admitted that
according to her written statement, she "got into his car so we [could] talk." Maxwell
also admitted she gave Osman her cell number and she did not tell the police that
Osman threatened to kill her. In the written statement, Maxwell said Osman told her, "I
don't want to beat you down but I will."
Nicholas testified that Maxwell told him she was going to talk to Osman in his car
"for about a minute." Nicholas said that after about five minutes, the car "pulled out in a
hurry." When Nicholas called Maxwell on her cell phone, he heard them arguing about
whether she had taken Osman's wallet.
I heard talk about money and something about him accusing her of taking
money and her saying, I don't have your money, I don't have your money.
And then he was like, he said something else about, yeah you do and
where's my money?
Nicholas testified that when he called back, he heard his "mom saying stop the
car, stop the car. And she was like, let me out. And then all I heard was Nick, come get
me, help, Nick, come get me. Then I heard [Osman] say, if he comes I'll kill him too."
After the phone disconnected, Nicholas tried to call back a number of times. When he
"tried one more time," he "got an answer, and then it sounded like she was on speaker
and all I heard her saying was give me my phone."
On cross-examination, Nicholas testified Maxwell and Osman left the tavern
together, and Maxwell "appeared normal," not "scared" or "angry," and was "[i]n fact, . . .
smiling." Nicolas testified Maxwell and Osman walked "[s]ide to side" to Osman's car
and she "hopped" into the passenger seat.
No. 71844^-1/7
Officer Martin testified that he heard someone from across the intersection
scream for help, and as he ran into the espresso stand parking lot next to the
McDonald's, he saw Osman punch Maxwell in the face three times "with a closed fist."
Officer Castro testified he heard a female screaming from across the intersection
and ran in the same direction as Officer Martin. Officer Castro said that when he
arrived, Officer Martin had detained Osman and Maxwell was crying, "her shirt was
pulled out[,] and there was a bra strap on the outside of the shirt."
Officer Castro said he could smell the odor of alcohol on Osman and Osman
appeared intoxicated. Osman told Officer Castro that while they were in the Castaway
Tavern parking lot, Maxwell "took the keys and got into his car. She was hungry so they
went down to McDonalds" and as they were driving, "he noticed his wallet was missing"
and believed Maxwell took the wallet.
[Osman] said that he was at Castaway with Ms. Maxwell. While in the
parking lot she took the keys and got into his car. She was hungry so they
went down to McDonalds and when they got — while they were driving
down there he noticed his wallet was missing and so when they got
parked he got out of the car and w[ent] to go get his wallet back from her.
And that's when the police arrived when he was trying to pull her out of the
car.
Officer Guillermo testified that while he was assisting Officer Martin and Officer
Castro detain the occupants of a stolen car, he "could hear a female screaming from
across the street." Officer Guillermo said he arrived in his patrol car right after Officer
Martin and Officer Castro detained Osman. Officer Guillermo said Osman was arguing
with the officers and appeared intoxicated. "I could smell a strong odor of an alcoholic
beverage .... His eyes were also red, bloodshot, and glassy."
No. 71844-4-1/8
Officer Guillermo frisked Osman and found an Apple iPhone and a "blue lanyard
around his neck with a car key on it." During the frisk, Osman told Officer Guillermo,
"[S]he mixed my drink, she has my wallet and my car keys[ and] I just got paid $400."
Officer Guillermo said he told Osman the car key was on a lanyard that was "around his
neck." Officer Guillermo testified Osman also said that "the wallet was left at the bar —
he lost it at the bar."
Detective Unsworth testified that when he executed the warrant to search
Osman's car on December 4, he found Osman's wallet between the driver's seat and
the center console. Detective Unsworth took photographs before removing the wallet
from the car. Detective Unsworth testified that a hoop earring was later found on the
"driver's side floorboard." The hoop earring found in the vehicle matched Maxwell's
missing earring. On December 12, Detective Unsworth took photographs of Maxwell's
broken acrylic fingernails, the hoop earring found in the car, and the earring Maxwell still
had in her possession. The court admitted the photographs of the wallet, Maxwell's
broken acrylic fingernails, and the hoop earrings.
During closing argument, the State argued the evidence showed "this was not a
consensual encounter." The State pointed to two "very very important pieces of
evidence" to argue Osman was guilty of unlawful imprisonment and assault.
First of all [Maxwell's] testimony. Throughout the whole incident
nothing was consensual. She agreed to nothing and it ended awful.
Screaming out of the parking lot, evidence that this was not a consensual
encounter on her part and [Osman's] part in any way. He got out of there
quick.
It continued even after the car stopped. He got out, ran around,
restricted her movement, took her cell phone so she couldn't leave
because she needed that cell phone back.
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No. 71844-4-1/9
Two very very important pieces of evidence to remember in this
case. [Inaudible] number one, her earrings with the big loop that went
down [inaudible] and the fingernail pictures taken two weeks later.
The defense argued the evidence showed Maxwell willingly got into the car with
Osman and he did not threaten to kill her. Defense counsel argued Osman was angry
because his wallet was missing and he believed "she took it." Defense counsel
admitted Osman was "wrong about the wallet. But he's also right. The wallet was not in
his pants pocket." Defense counsel emphasized the language in the jury instruction that
states an act "is not an assault if it is done with the consent of the person alleged to be
assaulted" to argue, "If there's a mutual fight or a mutual struggle going on that's not a
crime." Defense counsel said Osman just wanted his wallet back.
The conversation that [Osman] is having in the vehicle, what is his
goal? Is it does he actually want to hurt Tammy or does he want his wallet
back?
Nick apparently is on the phone because that's what Nick said.
At the end of the defense closing argument, the attorney addressed the meaning
of "an abiding belief of the truth of the charge." The prosecutor objected to the defense
argument—"Your Honor, I'm going to object that's not. . . accurate." The court
sustained the objection.
The jury found Osman not guilty of unlawful imprisonment and felony
harassment. The jury found Osman guilty of assault in the fourth degree. The court
imposed a 364-day suspended sentence with 12 months probation and a no-contact
order. Osman appeals the conviction.
No. 71844-4-1/10
ANALYSIS
Shifting the Burden of Proof
Osman contends prosecutorial misconduct during closing argument requires
reversal. Osman claims the prosecutor committed misconduct by improperly shifting
the burden of proof by questioning how the hoop earring was found in the car if a
struggle did not occur.
To prevail on a claim of prosecutorial misconduct, a defendant must show the
prosecutor's argument was improper and prejudicial. State v. Warren, 165 Wn.2d 17,
26, 195 P.3d 940 (2008). An abuse of discretion standard applies to allegations of
prosecutorial misconduct. State v. Lindsay. 180 Wn.2d 423, 430, 326 P.3d 125 (2014).
We review allegedly improper statements in the context of the entire argument, the
issues in the case, the evidence, and the jury instructions. State v. McKenzie, 157
Wn.2d 44, 52, 134 P.3d 221 (2006).
A criminal defendant has no duty to present evidence, and it is error for the
prosecutor to suggest otherwise. State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830
(2003). An argument that shifts the State's burden to prove guilt beyond a reasonable
doubt constitutes misconduct. State v. Thorqerson. 172 Wn.2d 438, 453, 258 P.3d 43
(2011): State v. Gregory, 158 Wn.2d 759, 859-61, 147 P.3d 1201 (2006).
However, a prosecutor is entitled to point out the improbability or lack of
evidentiary support for the defense theory of the case. State v. Russell, 125 Wn.2d 24,
87, 882 P.2d 747 (1994). A prosecutor has wide latitude to comment on the evidence
introduced at trial and to draw reasonable inferences from the evidence. Thorqerson,
172 Wn.2d at 448. The "mere mention that defense evidence is lacking does not
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No. 71844-4-1/11
constitute prosecutorial misconduct or shift the burden of proof to the defense." State v.
Jackson. 150 Wn. App. 877, 885-86, 209 P.3d 553 (2009).
Here, the prosecutor argued the evidence showed Osman was guilty of unlawful
imprisonment and assault. The prosecutor pointed to two "very important pieces of
evidence"—Maxwell's broken acrylic fingernails and her lost earring—to show Osman
used physical force to restrain and assault Maxwell during the struggle in the car.
Two very very important pieces of evidence to remember in this
case. . . . [N]umber one, her earrings with the big loop that went down . ..
and the fingernail pictures taken two weeks later.
The prosecutor then asked:
If a struggle or some type of confrontation didn't occur in the car
how did that earring come out of her ear and get left on the floor and how
did she break those fingernails if an encounter did not, and a struggle, did
not occur?
The defense objected, "Misstates burden." The court overruled the objection.
The prosecutor's argument did not impermissibly shift the burden of proof to the
defense. The argument was based on the evidence. The prosecutor did not argue that
the defense had failed to offer another reasonable explanation. Rather, the prosecutor
argued that the evidence did not support any other reasonable explanation. Because
the argument properly focused on the evidence, Osman cannot show prosecutorial
misconduct.1
Abiding Belief
Osman contends the court erred in sustaining the State's objection to defense
counsel's description of the meaning of "abiding belief as "not. . . accurate" and
impermissibly limited the scope of closing argument.
1 Therefore, we need not address prejudice.
11
No. 71844-4-1/12
The trial court has broad discretion over the scope of closing argument. State v.
Perez-Cervantes. 141 Wn.2d 468, 474-75, 6 P.3d 1160 (2000); Herring v. New York.
422 U.S. 853, 862, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975).
"The presiding judge must be and is given great latitude in controlling the
duration and limiting the scope of closing summations. ... He may ensure
that argument does not stray unduly from the mark, or otherwise impede
the fair and orderly conduct of the trial. In all these respects he must have
broad discretion."
Perez-Cervantes. 141 Wn.2d at 474-752 (quoting Herring. 422 U.S. at 862). The
Washington Supreme Court emphasized the trial court should restrict the argument of
counsel to the facts in evidence and the law as set forth in the instructions to the jury.
State v. Frost. 160 Wn.2d 765, 772, 161 P.3d 361 (2007).
Where a trial court improperly limits the scope of closing argument, the
constitutional rights of the defendant may be implicated. Frost, 160 Wn.2d at 772-73.
The Sixth Amendment right to counsel includes the right to make closing argument on
behalf of the defense. Herring. 422 U.S. at 858; Frost. 160 Wn.2d at 772-73; U.S.
Const, amend. VI. In Herring, the Supreme Court notes closing argument is the
defendant's "last clear chance to persuade the trier of fact that there may be reasonable
doubt." Herring. 422 U.S. at 862; see ajso Perez-Cervantes. 141 Wn.2d at 474.
An improper limitation of closing argument may also infringe on the defendant's
right to due process. In In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L Ed. 2d
368 (1970), the Supreme Court held due process requires the State to prove the
elements of the charged crime beyond a reasonable doubt. Proof beyond a reasonable
doubt is a fundamental right protected by the due process clause—"that bedrock
'axiomatic and elementary' principle whose 'enforcement lies at the foundation of the
: Alteration in original.
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No. 71844-4-1/13
administration of our criminal law.'" Winship. 397 U.S. at 363 (quoting Coffin v. United
States. 156 U.S. 432, 453, 15 S. Ct. 394, 39 L. Ed. 481 (1895)). In Winship. the Court
states, "It is critical that the moral force of the criminal law not be diluted by a standard
of proof that leaves people in doubt whether innocent men are being condemned."
Winship. 397 U.S. at 364.
Accordingly, jury instructions must accurately convey the State bears the burden
of proving every essential element of the charged crime beyond a reasonable doubt.
Victor v. Nebraska. 511 U.S. 1,5-6, 114 S. Ct. 1239, 127 L Ed. 2d 583 (1994).
However, the Constitution does not require "any particular form of words be used in
advising the jury of the government's burden of proof." Victor, 511 U.S. at 5.
The beyond a reasonable doubt standard is a requirement of due
process, but the Constitution neither prohibits trial courts from defining
reasonable doubt nor requires them to do so as a matter of course. . . .
Indeed, so long as the court instructs the jury on the necessity that the
defendant's guilt be proved beyond a reasonable doubt,... the
Constitution does not require that any particular form of words be used in
advising the jury of the government's burden of proof. . . . Rather, "taken
as a whole, the instructions [must] correctly conve[y] the concept of
reasonable doubt to the jury." Holland v. United States. 348 U.S. 121,
140, 75 S. Ct. 127, 137, 99 L. Ed. 150 (1954).
Victor. 511 U.S. at 5.3
In Victor, the Court considered the language of a reasonable doubt jury
instruction used in California. The jury instruction defined "reasonable doubt" as "not a
mere possible doubt" and after consideration of all the evidence, "leaves the minds of
the jurors in that condition that they cannot say they feel an abiding conviction, to a
moral certainty, of the truth of the charge." Victor. 511 U.S. at 5.
A defendant in a criminal action is presumed to be innocent until
the contrary is proved, and in case of a reasonable doubt whether his guilt
3 Some alterations in original.
13
No. 71844-4-1/14
is satisfactorily shown, he is entitled to a verdict of not guilty. This
presumption places upon the State the burden of proving him guilty
beyond a reasonable doubt.
Reasonable doubt is defined as follows: It is not a mere possible
doubt; because everything relating to human affairs, and depending on
moral evidence, is open to some possible or imaginary doubt. It is that
state of the case which, after the entire comparison and consideration of
all the evidence, leaves the minds of the jurors in that condition that they
cannot say they feel an abiding conviction, to a moral certainty, of the truth
of the charge.
Victor. 511 U.S. at 5.4
The defendant argued that use of the phrase "to a moral certainty" lowered the
burden of proof beyond a reasonable doubt and violated due process. Victor. 511 U.S.
at 6. The Court concluded that although "a jury might understand the phrase to mean
something less than the very high level of probability required by the Constitution in
criminal cases," the "abiding conviction" language cured the defect. Victor. 511 U.S. at
14.
Although in this respect moral certainty is ambiguous in the
abstract, the rest of the instruction given . . . lends content to the phrase.
The jurors were told that they must have "an abiding conviction, to a moral
certainty, of the truth of the charge.". . . An instruction cast in terms of an
abiding conviction as to guilt. . . correctly states the government's burden
of proof. ... As used in this instruction, therefore, we are satisfied that the
reference to moral certainty, in conjunction with the abiding conviction
language, "impressfed] upon the factfinder the need to reach a subjective
state of near certitude of the guilt of the accused.". . . Accordingly, we
reject [the] contention that the moral certainty element of the California
instruction invited the jury to convict him on proof below that required by
the Due Process Clause.
Victor. 511 U.S. at 14-155 (quoting Jackson v. Virginia. 443 U.S. 307, 315, 99 S. Ct.
2781,61 L. Ed. 2d 560 (1979)).
4 Emphasis in original, internal quotation marks omitted.
5 Emphasis added.
14
No. 71844-4-1/15
Nonetheless, the Court notes that it did not condone use of the phrase "a moral
certainty," but because the Court had "no supervisory power over the state courts, ... in
the context of the instructions as a whole we cannot say that the use of the phrase
['moral certainty'] rendered the instruction given . . . unconstitutional." Victor. 511 U.S.
at 16-17, 21.
Like the Supreme Court in Victor, in State v. Bennett. 161 Wn.2d 303, 317, 165
P.3d 1241 (2007), our Supreme Court was confronted with a "problematic" reasonable
doubt instruction. The court concluded the instruction met the minimum requirements
but exercised its supervisory power over the State courts.
Like the Supreme Court in Victor, we are confronted with a reasonable
doubt instruction which we find problematic. Unlike the United States
Supreme Court, we do have supervisory powers over our State's courts.
State v. Fields, 85 Wn.2d 126, 129, 530 P.2d 284 (1975) (citing State ex
rel. Foster-Wyman Lumber Co. v. Superior Court, 148 Wash. 1, 267 P.
770 (1928)). Even if many variations of the definition of reasonable doubt
meet minimal due process requirements, the presumption of innocence is
simply too fundamental, too central to the core of the foundation of our
justice system not to require adherence to a clear, simple, accepted, and
uniform instruction.
Bennett, 161 Wn.2d at 317-18.6
The court in Bennett states that it previously approved use of the "abiding belief
language in a reasonable doubt instruction in State v. Pirtle. 127 Wn.2d 628, 656-58,
904 P.2d 245 (1995). Bennett. 161 Wn.2d at 317. "We have approved M1 Washington
Practice: Washington Pattern Jury Instructions: Criminal 4.01, at 79 (2d ed. Supp.
2005) (WPIC)] and concluded that it adequately permits both the government and the
6 See also Commonwealth v. Russell, 23 N.E.3d 867, 470 Mass. 464(2015). In Russell, the
Massachusetts Supreme Court agreed with the reasoning in Bennett and exercised its inherent
supervisory authority to require a uniform instruction on proof beyond a reasonable doubt that states, in
pertinent part, "A charge is proved beyond a reasonable doubt if, after you have compared and
considered all of the evidence, you have in your minds an abiding conviction, to a moral certainty, that the
charge is true." Russell, 23 N.E.3d at 876-78 (internal quotation marks omitted).
15
No. 71844-4-1/16
accused to argue their theories of the case." Bennett. 161 Wn.2d at 317 (citing Pirtle.
127 Wn.2d at 656-58). The Supreme Court instructed the trial courts to use WPIC 4.01
to instruct the jury on the State's burden to prove every element of the charged crime
beyond a reasonable doubt. Bennett. 161 Wn.2d at 317-18. WPIC 4.01 states:
The defendant has entered a plea of not guilty. That plea puts in
issue every element of the crime charged. The [State] [City] [County] is
the plaintiff and has the burden of proving each element of the crime
beyond a reasonable doubt.
A defendant is presumed innocent. This presumption continues
throughout the entire trial unless during your deliberations you find it has
been overcome by the evidence beyond a reasonable doubt.
A reasonable doubt is one for which a reason exists and may arise
from the evidence or lack of evidence. It is such a doubt as would exist in
the mind of a reasonable person after fully, fairly and carefully considering
all of the evidence or lack of evidence. If, after such consideration, you
have an abiding belief in the truth of the charge, vou are satisfied beyond
a reasonable doubt.^
Here, the trial court used WPIC 4.01 and the abiding belief language to instruct
the jury on the State's burden of proof and reasonable doubt. Jury instruction 3 states:
The defendant has entered a plea of not guilty. That plea puts in
issue every element of each crime charged. The State is the plaintiff and
has the burden of proving each element of each crime beyond a
reasonable doubt. The defendant has no burden of proving that a
reasonable doubt exists as to these elements.
7WPIC 4.01, at 65 (2d ed. 1994) (emphasis added, alterations in original). The former WPIC (2d
ed. 1994) included two separate instructions to define reasonable doubt, WPIC 4.01 and 4.01 A. Former
WPIC 4.01 "was the original pattern instruction" on proof beyond a reasonable doubt and former WPIC
4.01 Awas added in 1986 "to provide an alternative definition." WPIC 4.01 cmt. at 85 (3d ed. 2008).
Both instructions defined reasonable doubt in terms of doubt that would exist in the mind
of a reasonable person. The primary difference between the two instructions in previous
editions was that WPIC 4.01 included an additional sentence on abiding belief, while
WPIC 4.01 A did not.
WPIC 4.01 cmt. at 85-86. In the 2008 edition, the WPIC comment states that former WPIC 4.01 and
4.01 Aare merged into a single jury instruction with the abiding belief language in brackets. WPIC 4.01
cmt. at 85-86. The comment also notes, "Washington's traditional abiding-belief instruction (WPIC 4.01 in
the second edition's main volume) has been upheld in several appellate cases." WPIC 4.01 cmt. at 86.
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No. 71844-4-1/17
A defendant is presumed innocent. This presumption continues
throughout the entire trial unless during your deliberations you find it has
been overcome by the evidence beyond a reasonable doubt.
A reasonable doubt is one for which a reason exists and may arise
from the evidence or lack of evidence. It is such a doubt as would exist in
the mind of a reasonable person after fully, fairly, and carefully considering
all of the evidence or lack of evidence. If. from such consideration, you
have an abiding belief in the truth of the charge, vou are satisfied beyond
a reasonable doubt.[8]
At the end of closing argument, defense counsel addressed the reasonable
doubt jury instruction and the meaning of "an abiding belief in the truth of the charge."
Defense counsel argued, "[l]f you find Harun guilty the minute you walk out of this
courthouse that's your decision you can't change your mind .... A month from now .. .
you can't go back and say maybe I made a mistake."
The doubts that you have about this case, about this story, create a
duty for you to find Harun not guilty... .
But if you decided that there's enough evidence beyond a
reasonable doubt to convict Harun jury instruction number [three] talks
about what you have to do to get there. .. .
But what jury instruction number three the last sentence reads is
that "if you have an abiding belief of the truth of the charge" what does that
mean? It means that if you find Harun guilty the minute you walk out of
this courthouse that's your decision you can't change your mind and look
back and say I wonder if I made a mistake.
A month from now when maybe you're talking to people about your
experience you can't go back and say maybe I made a mistake.
When the defense continued and said, "A year from now —," the prosecutor
interrupted to object—"Your Honor, I'm going to object that's not... accurate." The
court sustained the objection. The defense attorney then argued, "An abiding belief is
the truth of the charge. Ask yourself, do you have a doubt? And do you have a reason
for it? Thank you for listening."9
8 Emphasis added.
9 The State did not make a rebuttal argument.
17
No. 71844-4-1/18
Osman asserts the court erred in sustaining the State's objection to the defense
description of "an abiding belief in the truth of the charge" as inaccurate. The State
contends the defense argument is a misstatement of the law. Specifically, that the
argument overstates and improperly quantifies the reasonable doubt standard.
Washington case law has not addressed the meaning of the phrase "abiding
belief." The United States Supreme Court in Victor provides guidance. In Victor, the
Court described the meaning of an "abiding conviction" as "settled" and "fixed." Victor,
511 U.S. at 15. " 'The word "abiding" here has the signification of settled and fixed, a
conviction which may follow a careful examination and comparison of the whole
evidence.'" Victor. 511 U.S. at 15 (quoting Hopt v. Utah. 120 U.S. 430, 439, 7 S. Ct.
614, 30 L. Ed. 708 (1887)).10 Specifically, the Court held that the reference to an
"abiding conviction" impressed on the jurors " 'the need to reach a subjective state of
near certitude of the guilt of the accused.'" Victor. 511 U.S. at 14-15 (Quoting Jackson.
443 U.S. at 315).
We hold the defense argument was not a misstatement of the law. "[A]n abiding
belief in the truth of the charge" connotes both duration and the strength and certainty of
a conviction. Defense counsel properly relied on the abiding belief language in the
reasonable doubt instruction to emphasize the attorney was seeking to impress on the
jurors the need " 'to reach a subjective state of near certitude of the guilt of the
accused.' "11 In arguing a juror should not "look back" on the decision "the minute [they]
walk out of this courthouse" or "[a] month" or "[a] year" later and "wonder if I made a
10 Consistent with the description of "abiding conviction" in Victor, Webster's Third New
International Dictionary 3 (2002) defines "abiding" as "great or lasting" and "continuing or persisting in the
same state without changing or diminishing."
11 Victor, 511 U.S. at 14-15. (quoting Jackson, 443 U.S. at 315).
18
No. 71844-4-1/19
mistake," the defense argument did not overstate or improperly quantify the State's
burden of proof.
The State relies on State v. Anderson. 153 Wn. App. 417, 220 P.3d 1273 (2009),
and State v. Johnson. 158 Wn. App. 677, 243 P.3d 936 (2010), to argue the defense
argument impermissibly quantifies the burden of proof. Anderson and Johnson are
inapposite.
In Anderson, the prosecutor compared the certainty required to convict with
everyday decisions such as deciding to have "elective surgery," "leaving . . . children
with a babysitter," and "changing lanes on the freeway." Anderson, 153 Wn. App. at
424-25.12 The court concluded the argument trivialized the State's burden of proof and
was improper.
By comparing the certainty required to convict with the certainty people
often require when they make everyday decisions—both important
decisions and relatively minor ones—the prosecutor trivialized and
ultimately failed to convey the gravity of the State's burden and the jury's
role in assessing its case against [the defendant].
Anderson. 153 Wn. App. at 431.
In Johnson, the prosecutor compared "an abiding belief to a partially completed
jigsaw puzzle, arguing that despite the missing pieces, it was still possible to conclude
beyond a reasonable doubt what the puzzle represented. The prosecutor argued, in
pertinent part:
You add another piece of the puzzle, and suddenly you have a
narrower view . . . .
You add a third piece of the puzzle, and at this point even being
able to see only half, you can be assured beyond a reasonable doubt that
12 Internal quotation marks omitted.
19
No. 71844-4-1/20
this is going to be a picture of Tacoma.
Johnson. 158 Wn. App. at 682.13 The prosecutor also argued, "To be able to find
reason to doubt, you have to fill in the blank, that's your job." Johnson. 158 Wn. App. at
682.14
On appeal, the court reversed. Johnson, 158 Wn. App. at 686. The court held
the fill-in-the-blank argument and puzzle analogy that required the jury to supply the
missing pieces to justify reasonable doubt trivialized the burden of proof and was
flagrant and ill-intentioned misconduct. Johnson, 158 Wn. App. at 685-86.
Likewise, in Lindsay, the prosecutor used a nearly identical puzzle analogy to
describe the burden of proof beyond a reasonable doubt.
And then you put in about 10 more pieces and see this picture of the
Space Needle. Now, you can be halfway done with that puzzle and you
know beyond a reasonable doubt that it's Seattle. You could have 50
percent of those puzzle pieces missing and you know it's Seattle.
Lindsay. 180 Wn.2d at 434.15 The Supreme Court concluded that as in Johnson, "the
quantification by the prosecutor of the number of pieces and percentage of completion
required for reasonable doubt" was improper. Lindsay. 180 Wn.2d at 435-36.
Here, the defense attorney's description of the meaning of abiding belief did not
trivialize the State's burden of proving the elements of the crime beyond a reasonable
doubt. The argument does not impermissibly quantify or assign a percentage like the
puzzle examples used in Johnson and Lindsay. Instead, the argument properly
addressed the significance of having "an abiding belief in the truth of the charge" by
arguing jurors should not "look back" the minute they walk out of the courtroom or a
13 Internal quotation marks omitted.
14 Internal quotation marks omitted.
15 Internal quotation marks omitted.
20
No. 71844-4-1/21
month or year later and "say maybe I made a mistake." We hold the defense argument
is not an improper characterization of the reasonable doubt standard. The court erred
in sustaining the objection as inaccurate and limited the scope of the defense closing
argument.
The State argues that even ifthe court abused its discretion in sustaining the
objection and limited the scope of defense counsel's argument, the error was harmless.
The limitation of the scope of closing affects the " 'trial process itself " and is
subject to a constitutional harmless error analysis. Frost. 160 Wn.2d at 781-82 (quoting
Arizona v. Fulminante. 499 U.S. 279, 310, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)).
In Glebe v. Frost. U.S. , 135 S. Ct. 429, 430-31, 190 L. Ed. 2d 317 (2014),16 the
Supreme Court affirmed the Washington Supreme Court in Frost:
Most constitutional mistakes call for reversal only if the government cannot
demonstrate harmlessness. Neder v. United States, 527 U.S. 1, 8, 119 S.
Ct. 1827, 144 L. Ed. 2d 35 (1999). Only the rare type of error—in general,
one that "infect[s] the entire trial process" and "necessarily render[s] [it]
fundamentally unfair"—requires automatic reversal. []dj None of our
cases clearly requires placing improper restriction of closing argument in
this narrow category.
In determining whether the error was harmless, "we must 'conclude beyond a
reasonable doubt that the jury verdict would have been the same absent the error.'"
State v. Brown. 147 Wn.2d 330, 341, 58 P.3d 889 (2002) (quoting Neder, 527 U.S. at
19).
To convict Osman of assault in the fourth degree, the State had the burden of
proving beyond a reasonable doubt that Osman intentionally assaulted Maxwell. RCW
9A.36.041. " 'Assault is an intentional touching or striking of another person that is
harmful or offensive, regardless of whether it results in physical injury.'" State v. Jarvis.
16 Emphasis in original, some alterations in original, internal quotation marks omitted.
21
No. 71844-4-1/22
160 Wn. App. 111, 119, 246 P.3d 1280 (2011) (quoting State v. Tyler. 138 Wn. App.
120, 130, 155 P.3d 1002 (2007)). "[T]he intent required for assault is merely the intent
to make physical contact with the victim, not the intent that the contact be a malicious or
criminal act." Jarvis. 160 Wn. App. at 119.
Maxwell testified Osman "punched me in the side of the face" and "connected
solidly." Maxwell said Osman tried to punch her "two or three times" and "one time he
got me pretty good."
Officer Martin testified that he saw Maxwell sitting in the driver's seat of the car
and Osman standing over her, punching her in the face three times "with a closed fist."
Officer Martin and Officer Castro "observed marks on her face." The photograph
admitted into evidence shows red marks on the side of her face. Consistent with Officer
Martin's testimony that Maxwell was in the driver's seat while Osman was punching her
in the face, Maxwell's earring was found on the "driver's side floorboard."
Further, the court properly gave the WPIC 4.01 jury instruction on reasonable
doubt and informed the jurors that the State had the burden of proving each element of
the crime beyond a reasonable doubt. In addition, the court instructed the jury, in
pertinent part:
Each party has the right to object to questions asked by another lawyer,
and may have a duty to do so. These objections should not influence you.
Do not make any assumptions or draw any conclusions based on a
lawyer's objections.
We presume the jury follows the instructions of the court. State v. Kalebaugh, 183
Wn.2d 578, 586, 355 P.3d 253 (2015).
22
No. 71844-4-1/23
We conclude beyond a reasonable doubt that the jury verdict on assault in the
fourth degree would have been the same absent the error.
We affirm the conviction of assault in the fourth degree.
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23