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State Of Washington v. Lazar Chapman

Court: Court of Appeals of Washington
Date filed: 2021-04-19
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        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,                               )           No. 80489-8-I
                                                    )
                         Appellant,                 )           DIVISION ONE
                                                    )
                 v.                                 )           UNPUBLISHED OPINION
                                                    )
 LAZAR NACOMA CHAPMAN,                              )
                                                    )
                         Respondent.                )
                                                    )

       HAZELRIGG, J. — Lazar N. Chapman seeks reversal of his convictions for

witness tampering and three counts of felony violation of a no contact order. He

contends that the State failed to present sufficient evidence of the two alternative

means of witness tampering and that the prosecutor committed reversible

misconduct during closing argument when he referred to unadmitted evidence.

Because the State presented sufficient evidence of both alternative means of

committing witness tampering that were submitted to the jury and Chapman cannot

show prejudice from the prosecutor’s improper remark, we affirm.


                                             FACTS

       On February 18, 2019, Tukwila police officers responded to Laurie Porr’s

house at approximately 5:00 a.m. Porr was protected by a no-contact order

restraining Lazar Chapman. One of the officers heard someone climbing over a

metal fence, saw Chapman, and chased him. Chapman stated that he was at a


  Citations and pinpoint citations are based on the Westlaw online version of the cited material.
No. 80489-8-I/2


friend’s house and his ex-girlfriend had threatened to call 911. Chapman’s arrest

was captured on the officer’s body-worn camera. Porr gave a recorded statement

to police and made a second recorded statement the following day.

         Chapman was charged with residential burglary with a domestic violence

designation. While he was in custody pending trial, he made several phone calls

to Porr, which were recorded on the jail’s phone system. In one call, Chapman

told Porr that he was facing 36 to 48 months on a residential burglary charge and

asked her what her “stance” was so that he could decide whether to accept a plea

agreement or go to trial. The next day, he called her again and explained that the

police thought he had broken into the house because of her statement that she

had woken up on the couch and saw Chapman standing over her. Porr assured

Chapman that she had written down that he did not take anything from the house

or harm her. Chapman told Porr that they had to “play it safe” because of the no-

contact order and said, “You’re Robin.” He began addressing her as “Robin” and

referring to “Ms. Porr” in the third person. Chapman called Porr multiple times over

the following week, urged her to come to his arraignment and say they had not had

contact, and told her that if “nobody shows up” at trial, “there’s a possibility it could

get dismissed.” He repeatedly told her he loved her and said, “[I]f you really do

care about me, you love me like you fucking proclaim, this is where it’s going to

show.”

         Just before trial, the State amended the charging document to drop the

burglary charge and instead charge three counts of felony violation of a court

order—one alleging that Chapman had contacted Porr at her residence and two




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No. 80489-8-I/3


based on the jail calls—and one count of tampering with a witness based on the

jail calls. Each count was designated a domestic violence offense based on the

State’s allegation of a qualifying relationship between Chapman and Porr.

       Chapman successfully moved to exclude Porr’s recorded statements to

police at trial, arguing that their admission would violate his right to confrontation

because she was not testifying. Porr’s written victim impact statement that she

had returned to the prosecutor’s office was admitted and shown to the jury. In that

statement, Porr stated that she had not been assaulted, nothing was taken from

her house, and she wanted no charges brought against Chapman.

       At trial, the court admitted a no-contact order protecting Porr and restraining

Chapman from contacting her in person or by phone and from coming within 500

feet of her residence. The State also produced two prior convictions for no-contact

order violations within the past several years. An officer testified that he had

reviewed Porr’s recorded statements and listened to the jail calls and identified

Porr’s voice on the jail call recordings. He did not testify as to the content of Porr’s

statements.

       During closing argument, the prosecutor argued that the jury should find

that the female caller in the recorded jail calls was Porr based on the content of

the calls, the fact that the phone number dialed by Chapman matched the number

that Porr had submitted to the prosecutor’s office, and the officer’s testimony that

he had spoken with Porr in person and recognized the female voice on the calls

as Porr. Defense counsel suggested in closing that Porr’s absence rendered the




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State’s evidence insufficient. In rebuttal, the prosecutor also addressed Porr’s

absence:

      [PROSECUTOR]: What did the State show you?

      It’s evidence of that female’s identity. It is evidence that the woman
      who picked up that phone and was speaking with Lazar Chapman
      was Laurie Porr. That is what the State proved to you.

      And I agree with [defense counsel] that it would be great if Ms. Porr
      was here in court. It would be great if you could listen to her testimony
      here in this court. It would be great if you could listen to her recorded
      statement with Officer Balcom the same—

      [DEFENSE COUNSEL]: Objection. Your Honor, I—I have a motion.

      THE COURT: We’ll take it up at the end of arguments. Again, any
      arguments not supported by the evidence the jury can disregard.
      This is just argument. Go ahead, [counsel].

      [PROSECUTOR]: Ms. Porr is not here in this courtroom. Ms. Porr did
      not show up to testify. And the State has charged Mr. Chapman with
      tampering with a witness. Please find him guilty of that charge.
      Please find him guilty of the three cons—three—excuse me—three
      counts of felony violation of a No Contact Order. Thank you.

      After the jury was excused, Chapman moved for a mistrial based on the

prosecutor’s reference to Porr’s recorded statement to Officer Balcom that had not

been admitted. The court denied the motion, noting that the prosecutor had moved

on to a different line of argument and never completed the thought after defense

counsel objected. The court also noted that it had instructed the jury to disregard

any arguments not supported by the evidence and was satisfied that the jury would

make a decision based solely on admitted evidence.

      Chapman was convicted of all counts as charged. The court sentenced him

to concurrent terms of 60 months confinement on each of the no-contact order

violations and 51 months confinement on the witness tampering conviction.



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No. 80489-8-I/5


Chapman was also ordered to have no contact with Porr for two years.                He

appealed.


                                      ANALYSIS

I.     Sufficiency of the Evidence

       Chapman argues that his conviction for tampering with a witness must be

reversed because the evidence was insufficient to prove both alternative means of

committing the crime.

       Criminal defendants in Washington have the right to a unanimous jury

verdict. W ASH. CONST. art. I, § 21. When the defendant is charged with an

alternative means crime, this right may also include the right to a unanimous jury

determination as to the means by which the defendant committed the crime. State

v. Owens, 180 Wn.2d 90, 95, 323 P.3d 1030 (2014). If there is sufficient evidence

to support each of the alternative means of committing the crime on which the jury

is instructed, express jury unanimity as to the means is not required. Id. However,

if the evidence is insufficient to support any means, a particularized expression of

jury unanimity is required. Id.

       We review the sufficiency of evidence to support a conviction de novo.

State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). Evidence is sufficient if,

viewed in the light most favorable to the State, it allows any rational trier of fact to

find all of the elements of the crime charged beyond a reasonable doubt. State v.

Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). An appellant claiming that

the evidence was insufficient “admits the truth of the State’s evidence and all

inferences that reasonably can be drawn therefrom.” Id. Circumstantial and direct



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evidence are equally reliable in determining sufficiency of the evidence. State v.

Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). An appellate court “must defer

to the trier of fact on issues of conflicting testimony, credibility of witnesses, and

the persuasiveness of the evidence.” State v. Thomas, 150 Wn.2d 821, 874–75,

83 P.3d 970 (2004).

       Witness tampering is an alternative means crime. State v. Lobe, 140 Wn.

App. 897, 902, 167 P.3d 627 (2007). A person may commit the crime of witness

tampering by three alternative means: attempting to induce a person to (1) testify

falsely or withhold testimony, (2) absent themselves from an official proceeding, or

(3) withhold information from a law enforcement agency. RCW 9A.72.120(1);

Lobe, 140 Wn. App. at 902–03. When evaluating a charge of witness tampering,

jurors are “required to consider the inferential meaning as well as the literal

meaning” of a defendant’s words to the witness because “[t]he literal meaning of

words is not necessarily the intended communication.” State v. Scherck, 9 Wn.

App. 792, 794, 514 P.2d 1393 (1973).

       Chapman was charged on the alternatives of attempting to induce a person

to testify falsely and absent themselves. The jury was instructed on these two

means only and was not instructed to give a particularized expression of unanimity

as to which means Chapman employed. Therefore, to sustain the conviction, each

of these two alternative means must be supported by sufficient evidence.

       We first consider whether there was sufficient evidence that Chapman

attempted to induce a person to testify falsely. Throughout the calls, Chapman




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No. 80489-8-I/7


referred to Porr on the phone as “Robin” in an effort to circumvent the no-contact

order:

         MR. CHAPMAN: (Indecipherable) Okay. Well you’re Robin, you’re
         Robin, you hear me?

         FEMALE VOICE: Yeah, why’s that?

         MR. CHAPMAN: Because when I pled guilty, Robin, to a violation of
         a Protection Order on March 26th of 2018, they re-instilled a fucking
         Protection Order until 2020.

In another call, Chapman recommended that Porr change the name in her phone

to reflect the alias:

         You know how when you set up your phone you can put
         (indecipherable) you put your name and everything in?
         ...
         I would highly recommend, Robin, that—that you just to clarify that
         your phone definitely says Robin Vetkos or whatever on—in your
         phone. ‘Cause it’s not going to alter or change anything uh other—
         otherwise, (indecipherable) if it would be looked at through an IT
         technician, for instance, then this way they can verify—
         ...
         that it is Robin Vetkos, you know.
         ...
         You just have to—to see and look because then this way—otherwise
         as it stands, you know what I mean, you’re Robin Vetkos, you know
         what I mean?
         ...
         And it’s like this way nothing can be misconstrued. And because
         otherwise the—this way—this way (indecipherable) were to be asked
         (indecipherable) ‘cause there will be something that comes all
         together and something entirely different, you know what I mean?
         ...
         So (indecipherable) they’re going to have a hard time proving
         somebody is talking to somebody, you know what I mean? Like they
         could like, oh, yeah—
         ...
         —we think you were involved but then they’re going to have to like—
         they got subpoena you to come to court or whatever, to—only—only
         have you (indecipherable) to say anything. So how you going to
         fucking prove who you’re talking to? I mean that would really look
         fucking stupid in a—



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No. 80489-8-I/8


       ...
       —in a jury—or in a trial.

       As part of this subterfuge, Chapman frequently talked about Porr in the third

person while addressing her as “Robin.”          When talking to Porr about his

arraignment, Chapman implied that he wanted her to appear and request that the

no-contact order be dropped:

       I’m hoping maybe that if—if I get lucky and the lady comes to my
       arraignment on March 5th and says hey, you know,—and swears up
       and down that she doesn’t want a fucking—you know, this, that and
       the other shit—she doesn’t want that and I—I mean like literally,
       she’s going to have to fight for me. If she wants me to have—if she
       wants me—you know—you know, if she doesn’t want to spend the
       next fucking year to two years away from me, or maybe longer, yeah,
       she—there’s going to have to be some serious motherfucking—
       some serious fight on her behalf, you know.

       And when I can’t even ask nobody to talk or nothing, because that’s
       a violation of, you know. So like I have to sit back and just hope and
       wonder[.]
       ...
       I’m hoping to God that fucking somehow or other—something—a
       miracle can come and—and then if she’s there on—on the 5th—on
       the arraignment day saying that she doesn’t want this no contact
       thing, and she doesn’t want that, if she’s able to do all that, then
       maybe, just maybe—‘cause right now that’s kind of—kind of where
       we stand—where I stand with this lady.

       Chapman stated that, if the no-contact order was lifted, “at least I’ll be able

to talk without fear of throwing more of my life away,” indicating his awareness that

he was violating the no-contact order by talking to Porr. He then implied that Porr

should deny that Chapman had been contacting her:

       And my attorney told me not to say anything on the phone, and not
       to say anything—not to drop no names or nothing. But as it stands,
       phone numbers shit, you know what I mean? So—
       ...
       But—but the one thing that I got going on is that as long as she’s
       saying—you know what I’m saying? If she’s saying that we’re not



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No. 80489-8-I/9


       talking, then we’re not talking, you know what I mean? Like
       (indecipherable) . . . Yeah, so—
       ...
       —(indecipherable) then (indecipherable) keep it simple, stupid, you
       know what I mean? No intricate lies and none of that bullshit, you
       know what I mean? Like just keep it simple, stupid, but true. Keep it
       simple, stupid. No, we’re not, and no we haven’t been, and I don’t
       know—you know what I’m saying? And fucking—and lah de dah.

       Although Chapman emphasizes in his argument that he was not attempting

to induce false testimony because he was urging Porr to “keep it simple . . . but

true,” the State accurately points out that he was suggesting that Porr say that they

had not been talking while they were in the process of talking. The inferential

meaning of Chapman’s statement differs from the literal words he used. As a

whole, Chapman’s statements conveyed the impression that he wanted Porr to

appear at his arraignment and tell the court, untruthfully, that she and Chapman

had not been in contact. A rational trier of fact could conclude that the inferential

meaning of Chapman’s words was an attempt to induce Porr to testify falsely.

       We next turn to the sufficiency of the evidence that Chapman attempted to

induce a person to absent themselves from an official proceeding.          Although

Chapman encouraged Porr to appear at the arraignment, he made repeated

references to his increased chances at trial if witnesses were to fail to appear:

       So I mean I still got half a mind to where if I should take this to the
       box, that I might be able to beat it if nobody shows up.
       ...
       So if I were going to take it to trial or whatever, right, and fucking
       nobody shows up, there’s a possibility it could get dismissed. But at
       the same time it won’t, because they’re going to dredge up all my
       fucking phone conversations. And there’s only one number I’ve been
       fucking calling. And there’s only one number that was put on this
       sheet when the original No Contact Order was put into place. You—
       can you follow what I’m saying?




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No. 80489-8-I/10


Again, viewed in the light most favorable to the State, the inferential meaning of

these remarks differs from the literal meaning.        A rational trier of fact could

conclude that Chapman was attempting to induce Porr to absent herself from the

trial and refrain from testifying.

       Because both alternative means of committing witness tampering that were

presented to the jury are supported by substantial evidence, Chapman has not

shown a violation of his right to a unanimous jury verdict.


II.    Prosecutorial Misconduct

       Chapman also contends that the prosecutor committed misconduct during

closing argument by referring to the unadmitted evidence of Porr’s recorded

statement. A defendant claiming prosecutorial misconduct bears the burden to

prove that the prosecutor’s conduct was both improper and prejudicial. State v.

Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012). The State acknowledges that

it is inappropriate to call the jury’s attention to matters outside the record and

concedes that the prosecutor’s comment was improper. See State v. Belgarde,

110 Wn.2d 504, 508, 755 P.2d 174 (1988). If, as here, a defendant timely objected

to the prosecutor’s improper conduct at trial, they must show that the misconduct

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

Emery, 174 Wn.2d at 760.

       When the defendant objects or moves for a mistrial based on alleged

prosecutorial misconduct, we give deference to the trial court’s ruling on the matter

because “‘[t]he trial court is in the best position to most effectively determine if

prosecutorial misconduct prejudiced a defendant’s right to a fair trial.’” State v.



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No. 80489-8-I/11


Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997) (quoting State v. Luvene,

127 Wn.2d 690, 701, 903 P.2d 960 (1995)). We review the trial court’s ruling for

an abuse of discretion. Id. at 718.

       “In analyzing prejudice, we do not look at the comments in isolation, but in

the context of the total argument, the issues in the case, the evidence, and the

instructions given to the jury.” State v. Warren, 165 Wn.2d 17, 28, 195 P.3d 940,

945 (2008).     A prosecutor’s improper remark may be curable by a proper

instruction even if it “touch[es] on a constitutional right.” State v. Smith, 144 Wn.2d

665, 679, 30 P.3d 1245 (2001). We presume that juries are able to follow the

court’s instructions. Warren, 165 Wn.2d at 28.

       In State v. Warren, the Washington Supreme Court considered a claim of

prosecutorial misconduct based on the prosecutor’s argument, referenced three

times in closing, that “reasonable doubt does not mean beyond all doubt and it

doesn’t mean, as the defense wants you to believe, that you give the defendant

the benefit of the doubt.” Id. at 25, 27. The court found that the prosecutor’s

conduct was “clearly improper” because it undermined the presumption of

innocence. Id. at 24, 26. However, in context, the court concluded that any error

was cured because defense counsel promptly objected to each statement and the

trial judge “interrupted the prosecutor’s argument to give a correct and thorough

curative instruction.” Id. at 28. The court also found that the prosecutor’s improper

reference in closing to facts not in evidence was not prejudicial when the court had

instructed the jury “that counsel’s arguments are not evidence.” Id. at 29.




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No. 80489-8-I/12


       Chapman argues that the prosecutor’s improper comment “led the jury to

believe that he had knowledge of statements that he ‘wished’ he could share with

the jurors but that he was being blocked from doing so” by the exclusion of the

statements in accordance with Chapman’s right to confrontation. He contends that

the prosecutor’s reference to Porr’s recorded statement “made clear to the jury that

her two recorded statements, carefully taken by Officer Balcom, would have

provided evidence helpful to the State.” However, the prosecutor’s argument

immediately preceding the improper reference concerned the bases proposed by

the State for identifying the female caller as Porr.       In context, the improper

comment implied that listening to the unadmitted recorded statement would help

the jury identify the female caller as Porr. This argument did not concern the

content of recording, but rather the sound of Porr’s voice.

       Here, defense counsel’s immediate objection and the court’s reminder to

disregard arguments not supported by the evidence were sufficient to cure any

prejudice resulting from the improper remark. The reference to Porr’s unadmitted

statement was brief and unlikely to mislead the jury. Chapman has not shown that

the State’s misconduct had a substantial likelihood of affecting the verdict, and the

court did not abuse its discretion in denying his motion for a mistrial.

       Affirmed.




WE CONCUR:




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