State v. Fuller


NO. 34219-7-II


2007 Wash. App. LEXIS 315

February 21, 2007, Filed


COUNSEL: For Appellant(s): John A. Hays, Attorney at Law, Longview, WA.

For Respondent(s): Michael C. Kinnie, Attorney at Law, Vancouver, WA.


JUDGES: Van Deren, J. We concur: Houghton, C. J., Penoyar, J.




Van Deren, J. — Joseph Albert Fuller appeals his conviction and sentence for second degree assault while armed with a deadly weapon. He argues that the trial court erred by (1) denying his proposed self-defense instructions, (2) improperly commenting on the evidence in the jury’s presence, and (3) imposing community custody conditions that the legislature did not authorize. Additionally, Fuller argues that his defense counsel’s failure to object to descriptions of Anthony Cain as the “victim of an assault” and to evidence that police interviewed Fuller at the jail constituted ineffective assistance of counsel. We affirm the convictions but vacate that portion of Fuller’s sentence relating to drug and alcohol prohibitions and related affirmative requirements and remand for resentencing.


On the evening of July 6, 2005, Myron Mollinedo saw a man chasing another man, later identified as Anthony Cain, down Y Street in Vancouver, Washington. Mollinedo heard Cain yelling for help. Cain tripped and fell in front of 3304 Y Street. After he fell, the man chasing him kicked him and hit him in the head with a metal table leg-type pipe. 1 Cain did not hit back. Residents of 3304 Y Street responded to Cain’s cries for help and ran outside to assist him, at which point the man hitting Cain fled. The residents helped Cain onto their porch and called 911. Cain told Karen Herrington, one of the residents, that a man named Joe beat him up.

1   The weapon Fuller used is a metal table leg-type pipe. Fuller and witnesses refer to the weapon as both a table leg and a pipe.

When the police arrived, Herrington told Vancouver Police Sergeant Craig Landwehr what Cain said. None of the witnesses could identify the attacker. After the paramedics put Cain inside an ambulance, Landwehr asked him who had “beat him up,” to which Cain responded, “Jay Fuller.” 2 Report of Proceedings (RP) at 175.

2   Although not at issue in this appeal, Vancouver Police Detective Nichols testified that Fuller went by both the names “Joe” and “Jay.” Report of Proceedings (RP) at 214.

Cain was treated for a concussion and injuries to his eye, wrist, and the top of his head at a local hospital. Later that night, Vancouver Police Officer Spencer Harris visited Cain in the hospital and showed him a photo montage containing photographs of six people. After looking at the six pictures, Cain stated, “No. 5. He hit me with a metal pipe. His name is Jay Fuller.” RP at 186. Harris testified that Cain appeared fully conscious and answered his questions without seeming confused, even though he was clearly in severe pain from his injuries.

Vancouver Police Officer Eric McGarrity arrested Fuller on July 7, 2005, at the Clark County Courthouse. After reading Fuller his Miranda 3 rights, McGarrity walked Fuller over to the jail, where McGarrity and Nichols interviewed him. Fuller told the officers that he and Cain had been friends but that Cain had recently stolen his digital camera. Fuller said that he went to a friend’s house to confront Cain about the camera. When he arrived, Cain ran outside and Fuller grabbed a metal pipe and chased him. Fuller pursued Cain and caught up with Cain when he fell. Then Cain pulled out a gun. Despite Cain’s alleged warning, Fuller continued to assault him. Fuller admitted that he hit Cain repeatedly in the arms, ribs, and on the head, but only after Cain had displayed a gun 4. Witnesses testified that there was a broken air gun or BB gun on the ground when the police arrived; but that they did not see Cain or Fuller holding it. Fuller said that he ran off when a car chased him toward a parking lot located at 33rd and St. John; and that he might have dropped the table leg in that area. Nichols found a metal table leg in the area Fuller described and found several matching table legs at the house where Fuller reported grabbing the pipe.

3   Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

4   The officers found a soft air pistol, lying in the street nearby, but the State did not link the pistol to Cain.

On July 12, 2005, the Clark County Prosecutor charged Fuller with one count of second degree assault while armed with a deadly weapon. At trial, McGarrity, Nichols, Harris, and Landwehr testified to the facts described above. Cain denied making any statements to the police identifying Fuller as his assailant, claiming that he could not remember any of his prior statements. Fuller did not testify.

Fuller’s counsel objected to the State’s assertion in closing argument that Cain was more likely to have told the truth immediately after the incident than after he had time to deliberate on the consequences of identifying Fuller as his assailant. The trial court overruled Fuller’s objection, stating, “[i]t’s fair argument. Continue, please.” RP at 436.

Fuller requested a self-defense jury instruction. The trial court denied Fuller’s request because the only evidence about who was the first aggressor was Fuller’s own statement to Nichols that he assaulted Cain after Cain pulled a gun.

The jury returned a guilty verdict along with a special verdict finding Fuller armed with a deadly weapon during the assault. At sentencing, the State presented a brief used in Fuller’s most recent drug-related sentencing to prove his prior convictions and to calculate Fuller’s offender score. The trial court sentenced Fuller to five years, to be served consecutively to his unrelated ten-year drug sentence. The trial court did not enter any oral or written findings that Fuller suffered from chemical dependency or that chemical dependency or alcohol contributed to the assault, but imposed sentencing conditions relating to substance abuse.

Fuller appeals.



Fuller claims that the trial court erred by refusing to give his proposed self-defense instruction because evidence showed that: (1) just before the incident, Cain stole money and property from Fuller’s house; (2) Fuller went to confront Cain; (3) Cain was armed with what Fuller believed to be a handgun at the time of the assault; (4) Fuller armed himself with a table leg when he chased Cain; (5) Cain told Fuller he was armed and threatened to shoot Fuller; and (6) Fuller only struck Cain with the table leg to prevent Cain from shooting him.

If a defendant presents any evidence of self-defense, from whatever source, he is entitled to a self-defense instruction. State v. Gogolin, 45 Wn. App. 640, 643, 727 P.2d 683 (1986). But, “[i]f any element of a defense is missing, the defense should not be presented to the jury in the instructions.”  State v. Bell, 60 Wn. App. 561, 566, 805 P.2d 815 (1991).

To prove self-defense, there must be evidence that (1) the defendant subjectively feared that he was in imminent danger of death or great bodily harm; (2) this belief was objectively reasonable; (3) the defendant exercised no greater force than was reasonably necessary; and (4) the defendant was not the aggressor.  State v. Callahan, 87 Wn. App. 925, 929, 943 P.2d 676; 87 Wn. App. 925, 943 P.2d 676 (1997) (internal citations omitted).

The trial court applies a subjective standard when determining whether the defense produced any evidence of self-defense. State v. Tyree, 143 Wash. 313, 317, 255 P. 382 (1927). The trial court considers the evidence from the defendant’s point of view as to how conditions appeared to him at the time of the act, with his background and knowledge, and “not by the condition as it might appear to the jury in the light of testimony before it.” Tyree, 143 Wash. at 317 (quoting State v. Miller, 141 Wash. 104, 105, 250 P. 645 (1926)). It is not a requirement that the defendant was in actual danger of great bodily harm. Tyree, 143 Wash. at 317.

A significant exception to the rule, however, is that a defendant may not claim self-defense if he is the initial aggressor. State v. Callahan, 87 Wn. App. 925, 929, 943 P.2d 676 (1997). “An aggressor in an affray . . . cannot invoke the doctrine of self-defense . . . unless . . . such aggressor in good faith sought and endeavored to withdraw from and abandon the conflict.” State v. McConaghy, 84 Wash. 168, 170-71, 146 Pac. 396 (1915).

The trial court denied Fuller’s proposed self-defense instruction because all the testimony and evidence presented at trial showed that Fuller was the first aggressor:

[M]y holding is that the only evidence that we heard was the statement by [Fuller] to the police officers in regards to the first aggressor issue, and he’s the one that said that he went chasing after [Cain] with a pipe.

Based upon my recollection of the facts, there was no other testimony or evidence regarding first aggressor in here. Therefore, I’m denying the self-defense instruction.

RP at 381.

Here, the trial court was correct. The record provides no evidence that Fuller was not the first and only aggressor. On the contrary, the evidence clearly establishes that Fuller precipitated the incident and failed to disengage from his pursuit of Cain. None of the three witnesses saw Cain with a gun or heard Cain say anything other than “help me.” RP at 147. Mollinedo testified that Cain did not fight back while Fuller repeatedly hit him in the head and body with the table leg. And Fuller told Nichols that, when Cain fled, he chased him with the table leg. Furthermore, the record does not reflect that Fuller subjectively feared that he was in imminent danger from Cain. Although Fuller told Nichols that Cain pulled a gun, Fuller continued his assault on Cain. Fuller presented no evidence that he attempted to retreat or abandon the conflict, even when allegedly threatened with a gun. Under these circumstances, Fuller cannot argue self-defense and the trial court did not err in refusing a self-defense jury instruction.



Fuller contends that the trial court impermissibly commented on the evidence during the State’s rebuttal argument in the following exchange:

State: What really happened here, defendant admitted it, victim said it happened in the hospital. When is Mr. Cain most likely to be truthful? I submit to you it’s shortly after this happens.

Defense Counsel: Objection, Your Honor, to that. Objection.

The Court: It’s fair argument. Continue, please.

RP at 435-36.

Fuller contends that this error entitled the jury to believe that the trial court agreed with the State’s argument, thus relieving the State of its burden to prove that Fuller was the individual involved in the confrontation with Cain.

Article 4, section 16 of the Washington State Constitution prohibits a trial court from commenting on the evidence to avoid influencing the jury. State v. Jacobsen, 78 Wn.2d 491, 495, 477 P.2d 1 (1970). An impermissible comment conveys a court’s personal attitude toward the merits of the case, allowing a jury to infer what the court personally believed about the testimony in question. Hamilton v. Dept. of Labor & Indus., 111 Wn.2d 569, 571, 761 P.2d 618 (1988); State v. Ciskie, 110 Wn.2d 263, 283, 751 P.2d 1165 (1988). A trial court comments on the evidence when it appears that the court’s attitude toward the merits of the cause can be reasonably inferred from the nature or manner of the questions asked and the things said. State v. Brown, 31 Wn.2d 475, 486, 197 P.2d 590 (1948). The court does not impermissibly comment on the evidence by making rulings or giving reasons for its rulings, unless the comment indicates that the court believes or disbelieves the testimony. State v. Studebaker, 67 Wn.2d 980, 983, 410 P.2d 913 (1966).

Fuller acknowledges that what the trial court meant was that the State was entitled to draw this conclusion from the evidence in its closing argument. But Fuller claims that the trial court’s particular choice of words constituted a term of art that could have led the jury to believe that the trial court agreed with the State’s argument. Additionally, Fuller claims that if the jury believed that the trial court accepted the State’s argument, it relieved the State of its burden to prove that Fuller was the individual involved in the confrontation with Cain.

Fuller cites State v. Bogner, 62 Wn.2d 247, 382 P.2d 254 (1963) to support his allegation that the trial court relieved the State of its burden of proof. Police arrested Bogner near a housing project shortly after an employee of the project called the police to report a robbery. During the State’s examination of a police officer, Bogner objected to the officer’s assertion that a robbery had occurred. Bogner, 62 Wn.2d at 248-49. The court asked defense counsel, “[d]on’t you think we are getting a little ridiculous, or aren’t we?” Bogner, 62 Wn.2d at 249. Our Supreme Court found reversible error, holding that the court’s comment allowed the jury to infer that the court believed that the corpus delecti of the crime had been established. Bogner, 62 Wn.2d at 252, 256.

This case is distinguishable. In Bogner, the trial court was not directly ruling on an objection when the comment occurred but, rather, was involved in a follow-up discussion with the objecting attorney. But here, the trial court overruled an objection, without challenging or addressing the merits of an argument other than to indicate that it was within the boundaries of fair argument. 5 The trial court appropriately allowed counsel “wide latitude in closing argument to draw reasonable inferences from the evidence and to express such inferences to the jury.” State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997).

5   We agree that the better response would have been, “It’s argument,” without referring to “fair” argument.

Under these circumstances, the trial court did not impermissibly comment on the evidence and Fuller’s claim fails.



A. Community Custody Conditions

Fuller contends that the trial court erred by sentencing him to community custody conditions requiring him to undergo evaluation and treatment for substance abuse and imposed other substance abuse limitations. We reverse a sentence only if it is unreasonable enough that “no reasonable person would take the view adopted by the trial court.” Riley, 121 Wn.2d at 37 (citations omitted).

The jury convicted Fuller of second degree assault under RCW 9A.36.021. RCW 9.94A.030(50)(a)(viii) defines second degree assault as a violent offense. RCW 9.94A.715 states:

When a court sentences a person to the custody of the department for . . . a violent offense, committed on or after July 1, 2000, the court shall in addition to the other terms of the sentence, sentence the offender to community custody.

RCW 9.94A.715(1).

Unless a condition is waived by the court, the conditions of community custody shall include those provided for in RCW 9.94A.700(4). The conditions may also include those provided for in RCW 9.94A.700(5). The court may also order the offender to participate in rehabilitative programs or otherwise perform affirmative conduct reasonably related to the circumstances of the offense, the offender’s risk of reoffending, or the safety of the community.

RCW 9.94A.715(2)(a).

RCW 9.94A.700(5) identifies sentencing conditions that include participation in crime-related treatment or counseling services, a prohibition on consuming alcohol, and compliance with other crime-related prohibitions. “‘Crime-related prohibition’ means an order of a court prohibiting conduct that directly relates to the circumstances of the crime for which the offender has been convicted.” RCW 9.94A.030(13); State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1953).

We limit RCW 9.94A.715’s grant of authority to require an offender to ‘”participate in rehabilitative programs or otherwise perform affirmative conduct reasonably related to the circumstances of the offense, the offender’s risk of reoffending, or the safety of the community,”‘ to those conditions related to the crime. State v. Jones, 118 Wn. App. 199, 210, 76 P.3d 258 (2003) (quoting RCW 9.94A.715(2)(a)).

Fuller contends that the trial court erred by sentencing him to community custody conditions that the legislature did not authorize for his crime. The trial court required Fuller to: (1) “undergo an evaluation for [substance abuse] treatment,” (2) “enter into, cooperate with, fully attend, and successfully complete all in-patient and outpatient phases of a [substance abuse] treatment program,” (3) pay for such treatment, (4) “notify [his] community corrections officer . . . when a controlled substance or legend drug has been medically prescribed, ” (5) “not possess or use any paraphernalia, scales, pagers, cellular phones, police scanners, hand held electronic scheduling, and data storage devices,” (6) “not frequent known drug activity areas or residences,” and (7) “not be in any place where alcoholic beverages are sold by the drink for consumption or are the primary sale item.” CP at 125.

Fuller’s October, 2005 sentence for drug-related crimes included each of the aforementioned conditions. But in this case, the trial court did not enter findings indicating that substance abuse or alcohol contributed to Fuller’s assault on Cain. Because there is no such finding, the trial court erred by imposing the six drug and alcohol-related conditions. The crime of assault does not, without additional findings not present here, relate to substance abuse. Finally, although RCW 9.94A.700(5) allows the court to preclude Fuller from consuming alcoholic beverages whether or not alcohol related to the crime, the trial court lacked authority to order Fuller not be in any place where alcoholic beverages are sold by the drink for consumption or are the primary sale item. See Jones, 118 Wn. App. at 207.

We therefore vacate the alcohol and substance abuse conditions of Fuller’s sentence and remand for resentencing.


B. DNA Fee

Fuller argues that the trial court erred by ordering him to submit and pay for a DNA sample because the State already has a sample of his DNA stored in its databank from a previous felony, thus, requiring him to pay for and submit an additional sample is contrary to the legislature’s intent.

The legislature provided that “[e]very adult or juvenile individual convicted of a felony . . . must have a biological sample collected for purposes of DNA identification analysis.” RCW 43.43.754. “Every sentence imposed under chapter 9.94A RCW, for a felony specified in RCW 43.43.754 . . . must include a fee of one hundred dollars for collection of a biological sample as required under RCW 43.43.754, unless the court finds that imposing the fee would result in undue hardship on the offender.” RCW 43.43.7541.

Fuller claims that RCW 43.43.754(1)’s language is ambiguous because it does not use the phrase “every time a person is convicted of a felony.” Br. of Appellant at 38. He claims that it is thus susceptible to two interpretations: “first, that the process should be repeated with every judgment and sentence, and second, that the process should only be performed once.” Br. of Appellant at 38.

Statutory interpretation is a question of law that we review de novo. Courts should assume the Legislature means exactly what it says. Plain words do not require construction. The courts do not engage in statutory interpretation of a statute that is not ambiguous. If a statute is plain and unambiguous, its meaning must be derived from the wording of the statute itself. A statute is ambiguous if it can reasonably be interpreted in two or more ways, but it is not ambiguous simply because different interpretations are conceivable. The courts are not obliged to discern any ambiguity by imagining a variety of alternative interpretations.  State v. Keller, 143 Wn.2d 267, 276-77, 19 P.3d 1030 (2001) (internal citations omitted).

The first sentence of RCW 43.43.7541 is not ambiguous. It states, ” [e]very sentence imposed under chapter 9.94A RCW, for a felony specified in RCW 43.43.754 . . . must include a fee of one hundred dollars for collection of a biological sample as required under RCW 43.43.754, unless the court finds that imposing the fee would result in undue hardship on the offender.” (Emphasis added.) Here, the trial court did not make a finding that the fee would result in an undue hardship for Fuller.

Additionally, Fuller’s argument assumes that the sole purpose of the DNA fee is to offset the cost of collecting his sample; but the State Treasurer deposits the fee into an account used for “creation, operation, and maintenance of the DNA data base under RCW 43.43.754.” RCW 43.43.7532. The trial court did not err in imposing the required DNA sample and fee.



Fuller claims that two errors made by defense counsel at trial constituted ineffective assistance. First, Fuller assigns error to defense counsel’s failure to object when the State repeatedly referred to Cain as the “victim of an assault.” Br. of Appellant at 26. Also, Fuller challenges his counsel’s failure to object to the officers’ testimony that police arrested Fuller and interviewed him at the jail.

A defendant claiming ineffective assistance of counsel must prove that (1) the attorney’s performance was deficient, i.e. that the representation “fell below an objective standard of reasonableness under prevailing professional norms;” and (2) prejudice resulted from the deficient performance, i.e. “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” State v. Graham, 78 Wn. App. 44, 56, 896 P.2d 704 (1995) (citations omitted). “Competency of counsel will be determined upon entire record.” State v. White, 81 Wn.2d 223, 225, 500 P.2d 1242 (1972) (citing State v. Gilmore, 76 Wn.2d 293, 456 P.2d 344 (1969)). We are not required to address both prongs of the test if the defendant makes an insufficient showing on one prong. State v. Fredrick, 45 Wn. App 916, 923, 729 P.2d 56 (1986). We give great judicial deference to trial counsel’s performance and this court begins its analysis with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).

Fuller fails to point to any authority supporting his assertion that use of the phrase “victim of an assault,” Br. of Appellant at 26, is inherently prejudicial, nor does he point to any motion in limine to avoid such a reference at the trial court. He cites several cases, but none support his argument. See State v. Denton, 58 Wn. App. 251, 257, 792 P.2d 537 (1990) (trial court’s refusal to allow counsel to provide personal knowledge under the guise of offered cross-examination by referring to a transcript of a taped interview without offering the transcript into evidence); State v. Yoakum, 37 Wn.2d 137, 144, 222 P.2d 181 (1950) (prosecutor providing prior knowledge during cross-examination); State v. Carlin, 40 Wn. App. 698, 704, 700 P.2d 323 (1985), overruled on other grounds by City of Seattle v. Heatley, 70 Wn. App. 573, 854 P.2d 658 (1993) (witness testified that a dog followed a “fresh guilt scent”). The cases Fuller relies on involve attempts by the State to present otherwise unavailable evidence to the jury or to present comments about the defendant’s guilt. Fuller apparently argues that referring to Cain as a victim is the same as referring to Fuller as guilty. This assertion is tenuous, at best. There is no evidence that Fuller ever contested that Cain suffered injuries as the result of the assault. As such, Fuller has failed to show that the outcome of the trial would have been different had Cain not been referred to as a victim.

Fuller’s second argument is also without merit. He claims that his attorney’s failure to object to Nichol’s testimony that he arrested and interviewed Fuller at the jail allowed the jury to infer that Nichols believed that Fuller was guilty. Fuller fails to state how the fact of his arrest prejudiced him in any way. Clearly, Fuller would not have been on trial for second degree assault with a deadly weapon if police had not arrested him. Furthermore, Fuller fails to cite authority indicating that the location of a police interview infers an officer’s belief about the defendant’s guilt.

Fuller fails to show that informing the jury of the location of his interview prejudiced him. In fact, “[a]lthough references to custody can certainly carry some prejudice, they do not carry the same suggestive quality of a defendant shackled to his chair during trial.” State v. Mullin-Coston, 115 Wn. App. 679, 693, 64 P.3d 40 (2003), affirmed by State v. Mullin-Coston, 152 Wn.2d 107, 95 P.3d 321 (2004). Further, it is reasonable that jurors may know that a person awaiting trial will often be in custody, without inferring guilt. Mullin-Coston, 115 Wn. App. at 693.

Additionally, there is no reasonable probability that, but for the attorney’s claimed errors, the results of the proceedings would have differed. Here, the jury heard testimony that Fuller precipitated the incident by chasing Cain and that, when Cain fell, Fuller repeatedly hit him in the head and body with the table leg. The jury had ample evidence, absent counsel’s alleged errors, to convict Fuller. Thus, Fuller’s claim of ineffective assistance of counsel also fails.

We affirm Fuller’s conviction but vacate the drug and alcohol-related sentencing conditions and remand for resentencing.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

Houghton, C.J., and Penoyar, J., concur.


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