Opinion
No. 37859-1-II.
September 15, 2009.
Appeal from the Superior Court, Grays Harbor County, No. 08-1-00154-0, Dave Edwards, J., entered June 16, 2008.
Affirmed by unpublished opinion per Houghton, J., concurred in by Van Deren, C.J., and Bridge-water, J.
Eldorado Brown appeals his conviction for custodial assault and the trial court's contempt order it entered after he failed to sign and fingerprint documents. He argues prosecutorial misconduct and two violations of his due process rights. We affirm.
FACTS
On January 21, 2008, the fire alarm at the Stafford Creek Correctional Center, where Brown is an inmate, sounded throughout the building. The fire control system alerted officers that the sensor next to Brown's cell caused the alarm. Corrections Officer Leon Harder testified that many inmates knew that blowing dust into the ventilation system or striking it would cause a false alarm to sound.
Officers can access the secure pipe chase connected to the ventilation system from the back of the facility. Harder climbed into the pipe chase to clean the ventilation system next to Brown's cell. As Harder removed dust from the area, he overheard Brown say to another inmate that someone was in his pipe chase. Before Harder could finish cleaning the area, Brown threw urine into the ventilation system and hit Harder on the face and hand. Harder heard Brown swear and express satisfaction after he hit Harder with the urine. He also testified that Brown had wanted revenge for an incident where Brown felt Harder wronged him.
At trial, the parties disputed whether Harder had identified the "unknown liquid substance" as urine in his report. Report of Proceedings (RP) (June 3, 2008) at 20. On redirect, Harder clarified that his report stated that the unknown liquid substance "smelled like urine." RP (June 3, 2008) at 30.
Jesse Reese, another corrections officer who testified, said he heard laughing after the liquid hit Harder. Reese also corroborated Harder's testimony that the liquid was urine.
During closing argument, the State argued its theory of the case to the jury and stated, "That's probably the toughest question that you're going to be faced with today what this beyond a reasonable doubt means." Report of Proceedings (RP) (June 3, 2008) at 65. The State encouraged the jury to rely on their individual opinions, decide their abiding beliefs, and do the right thing by deciding whether Brown was "guilty or innocent." RP (June 3, 2008) at 66.
The trial court's jury instructions included an instruction defining custodial assault. The instruction informed the jury of the State's burden to prove the four elements of the crime beyond a reasonable doubt. The jury found Brown guilty of custodial assault, and the trial court proceeded to sentencing.
At sentencing, Brown refused to sign his judgment and sentence and refused to provide fingerprints. The trial court found him in contempt of court and returned him to the custody of the Department of Corrections. Under the contempt order, he received no credit for time served until he agreed to provide his fingerprints on his judgment and sentence. He appeals his conviction and the trial court's contempt order.
ANALYSIS Prosecutorial Misconduct
Brown first contends that the prosecuting attorney committed misconduct during the State's closing argument. He argues the prosecutor unfairly described the reasonable doubt standard, urged the jury to ignore the trial court's instructions, and incorrectly stated that Brown was either guilty or innocent.
The proper choice was between guilty and not guilty.
To prevail on his claim of prosecutorial misconduct, Brown must show both improper conduct and resulting prejudice. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006). A prosecutor's comments are prejudicial when they are substantially likely to affect the jury's verdict. McKenzie, 157 Wn.2d at 52. When determining the prejudicial effect of the conduct, we look to the context of the entire argument, the issues of the case, the evidence, and the jury instructions. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
We do not reverse when the trial court could have corrected a prosecutor's improper remark by a curative instruction the defense counsel failed to request. State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991). If defense counsel fails to object to improper remarks by the prosecutor, he has waived the error on appeal "unless the remark is deemed to be so flagrant and ill intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." Hoffman, 116 Wn.2d at 93.
On appeal, Brown concedes that his defense counsel did not object to the State's closing argument. Further, Brown's counsel did not seek any curative instructions. Thus, we review the State's closing argument for flagrant and ill intentioned misconduct that evinced an enduring an incurable prejudice. Hoffman, 116 Wn.2d at 93. Reviewing the record under that standard, the State's comments with respect to reasonable doubt, abiding beliefs, termination of deliberations, doing the right thing, or guilt versus innocence amount to prosecutorial misconduct. Hoffman, 116 Wn.2d at 93. Brown's argument fails.
We do not address whether prejudice occurred.
Due Process
Brown next contends the trial court denied his right to due process by not requiring proof of every essential element of custodial assault. He argues that because the State did not prove he was not guilty of first or second degree assault, it failed to prove all essential elements of custodial assault.
RCW 9A.36.100 defines custodial assault in relevant part:
(1) A person is guilty of custodial assault if that person is not guilty of an assault in the first or second degree and where the person:
. . . .
(b) Assaults a full or part-time staff member or volunteer, any educational personnel, any personal service provider, or any vendor or agent thereof at any adult corrections institution or local adult detention facilities who was performing official duties at the time of the assault.
In State v. Ward, our Supreme Court analyzed a similar case and held that "[a]n `essential element is one whose specification is necessary to establish the very illegality of the behavior[.]'" 108 Wn. App. 621, 626-27, 32 P.3d 1007 (2001) (quoting State v. Johnson, 119 Wn.2d 143, 147, 829 P.2d 1078 (1992)), aff'd, 148 Wn.2d 803, 64 P.3d 640 (2003). The Ward court reasoned that because disproving first and second degree assault does not prove any illegality or prohibited contact with the victim, neither amounts to an essential element. 108 Wn. App at 627.
Here, the State presented no evidence of either first or second degree assault. Rather, the State presented evidence of all the essential elements of custodial assault, to wit: inmate Brown threw a liquid at Harder while Harder was performing his official duties as corrections officer. The State carried its burden of proving all essential elements of the crime of custodial assault and therefore it did not violate Brown's due process rights. Ward, 108 Wn. App at 627. Brown's argument fails.
Contempt Order
Brown finally contends the trial court's contempt order violated RCW 7.21.050 and Brown's right to due process. He argues the trial court failed to comply with the requirements of RCW 7.21.050.
Under RCW 7.21.050(1),
[t]he judge presiding in an action or proceeding may summarily impose either a remedial or punitive sanction authorized by this chapter upon a person who commits a contempt of court within the courtroom if the judge certifies that he or she saw or heard the contempt. The judge shall impose the sanctions immediately after the contempt of court or at the end of the proceeding and only for the purpose of preserving order in the court and protecting the authority and dignity of the court. The person committing the contempt of court shall be given an opportunity to speak in mitigation of the contempt unless compelling circumstances demand otherwise. The order of contempt shall recite the facts, state the sanctions imposed, and be signed by the judge and entered on the record.
"Punishment for contempt of court lies within the sound discretion of the trial court," and we will not disturb the trial court's ruling absent an abuse of that discretion. State v. Dugan, 96 Wn. App. 346, 351, 979 P.2d 885 (1999). A trial court abuses its discretion when its bases its decision on untenable grounds or untenable reasons. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
At sentencing, the following exchange took place:
[Defense Counsel]: Thank you, judge. We will hand up a Judgment and Sentence.
THE COURT: Okay.
[Defense counsel]: Your Honor, I reviewed the judgment and sentence for Mr. Brown. It's in order with what the Court indicated. However, Mr. Brown is telling me that he simply is not going to sign it.
THE COURT: Very well. Please step forward Mr. Brown. Please provide the original to the Court.
[Defense counsel]: That goes for the advisement of rights too, Your Honor.
THE COURT: Okay. The Judgment and Sentence, which has been handed up to me, it conforms with my pronouncement of the sentence. I am signing it in open court and in the presence of Mr. Brown at this time. The advise of rights on appeal, I have signed that document. Mr. Brown, are you refusing to sign this document? No response. I am going to indicate on this document that Mr. Brown is refusing to sign it and is refusing to respond to my question regarding that.
I have noted that and placed my initials under the line where Mr. Brown refused to sign. Okay. Judgment and Sentence has been signed. You are remanded to the custody of the Department of Corrections.
[Defense counsel]: Thank you, Your Honor.
(Whereupon other cases were heard.)
THE COURT: State versus Brown. We are back on the record again. Mr. Brown, I have been informed that you have refused to place your fingerprints on the Judgment and Sentence is that correct? Mr. Brown? Well, here is what we are going to do. Mr. Brown, I am going to order you detained until such time as you agree to be fingerprinted, whatever, if that takes one day or 500 days; I don't care. It's not going to count toward your — any time you are already serving. You are going to be doing dead time until you agree to be fingerprinted. You can do it now or whatever you want, that's your choice. So you are remanded to the Grays Harbor County Jail where you will be held until such time that you agree to be fingerprinted; do you want to do it now? No response. Okay. Please remove the defendant from the courtroom. Court is at recess.
RP (June 16, 2008) at 9-11. Thereafter, the trial court entered a contempt order against Brown denying credit for time served until he agreed to place his fingerprints on his judgment and sentence.
The record establishes that the contemptuous act occurred in the presence of the trial court, that trial the court imposed the sanction immediately after the act, that the trial court gave Brown an opportunity to mitigate his contemptuous action by providing his fingerprints, and that the contempt order recited the factual basis for the sanction. RCW 7.21.050. His argument fails.
Affirmed.
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.
BRIDGEWATER, J. and VAN DEREN, C.J., concur.