State Of Washington v. Cynthia Roxana Cuellar

Cynthia Cuellar claimed that she bit a police officer in self-



defense. The jury found her guilty of third degree assault. In the published



portion of this opinion, we reject her contention that resisting arrest is a lesser



included offense of third degree assault as charged in this case. Evidence that



Cuellar ignored warnings to stay back and then aggressively approached police



officers attempting to secure the participants in a domestic disturbance



supported a reasonable inference that she provoked the need to act in self-



defense. Accordingly, the trial court did not err in giving a first aggressor



instruction. We also conclude that the deputy prosecutor's improper closing



argument was not sufficiently prejudicial to affect the outcome of the trial. We



therefore affirm Cuellar's conviction.



No. 65411-0-I/2



LESSER INCLUDED OFFENSE



Cuellar contends that the trial court erred in refusing to instruct the jury on



the lesser included offense of resisting arrest. A defendant is entitled to an



instruction on a lesser included offense if (1) each element of the lesser offense



is a necessary element of the charged offense (legal prong) and (2) the



evidence supports an inference that the defendant committed only the lesser



offense (factual prong). State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d



382 (1978). Consequently, "if it is possible to commit the greater offense without



having committed the lesser offense, the latter is not an included crime." State



v. Turner, 143 Wn.2d 715, 729, 23 P.3d 499 (2001), quoting State v. Roybal, 82



Wn.2d 577, 583, 512 P.2d 718 (1973).1 We apply this analysis to the greater



offense as specifically charged and prosecuted, not to all statutory alternative



means. State v. Berlin, 133 Wn.2d 541, 548, 947 P.2d 700 (1997).



To convict Cuellar of third degree assault as charged, the State had to



prove that she assaulted a police officer "who was performing his or her official



duties at the time of the assault." RCW 9A.36.031(1)(g). A person resists arrest



1 The State contends that Cuellar did not preserve this issue for review because

the record on appeal does not include the text of the proposed instruction on resisting

arrest. But the record indicates that defense counsel e-mailed the text of the proposed

instruction to the trial judge and that the instruction was before the judge at the time of

argument. After considering argument from both sides, the trial court concluded that

resisting arrest was not a lesser included offense and refused to give the instruction.

Under the circumstances, the record is sufficient to permit appellate review.



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No. 65411-0-I/3



if she "intentionally prevents or attempts to prevent a police officer from lawfully



arresting [her]." RCW 9A.76.040(1). Because intent to resist arrest is not a



necessary element of third degree assault under RCW 9A.36.031(1)(g), a



person can commit an assault on a police officer who is performing official duties



unrelated to making an arrest. And resisting arrest does not require conduct that



constitutes an assault. See State v. Williams, 29 Wn. App. 86, 92, 627 P.2d 581



(1981). Consequently, resisting arrest does not satisfy the legal prong of the



Workman test.



Cuellar's reliance on State v. Marshall, 37 Wn. App. 127, 678 P.2d 1308,



review denied, 101 Wn.2d 1017 (1984), is misplaced. The assault charge in



Marshall involved a statutory alternative means that encompassed resisting



arrest. See RCW 9A.36.031(1)(a).2 Unlike RCW 9A.36.031(1)(a), RCW



9A.36.031(1)(g) does not include resisting arrest as a necessary element.



Marshall is therefore distinguishable. See also State v. Godsey, 131 Wn. App.



278, 289, 127 P.3d 11 (resisting arrest is a lesser included offense of assault



under RCW 9A.36.031(1)(a)), review denied, 158 Wn.2d 1022 (2006).



The trial court correctly concluded that resisting arrest was not a lesser



2 Under RCW 9A.36.031(1)(a), a person commits third degree assault if he or

she "with intent to prevent or resist the execution of any lawful process or mandate of

any court officer or the lawful apprehension of detention of himself or another person,

assaults another."



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No. 65411-0-I/4



included offense of third degree assault under RCW 9A.36.031(1)(g).



Affirmed.



The balance of this opinion having no precedential value, the panel has



determined it should not be published in accordance with RCW 2.06.040.



At about 10:30 p.m. on April 24, 2009, Kent police officers Mark Williams



and Thomas Clark responded to a reported domestic disturbance at the



Pembroke Apartment complex. The dispatch report indicated that someone



might be armed with a knife.



Upon arrival, Williams and Clark watched from a distance as an



apparently drunken man in the parking lot swung his fists unsuccessfully at



another man. After waiting a few minutes for more officers to arrive, Williams



and Clark walked across the parking lot and approached the man, later identified



as Luis Cuellar.3 By now, two individuals held Luis on the ground.



After the individuals got up, the officers ordered Luis to remain on the



ground. When he failed to comply and attempted to walk away, the officers used



a stun gun on him and knocked him to the ground, where they were eventually



able to handcuff him. In the meantime, Officer Joel Makings and Sergeant Eric



Hemmen arrived and took over for Williams and Clark. Luis remained on the



3 Because several of the participants share the same last name, we use their

first names for purposes of clarity.



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No. 65411-0-I/5



ground kicking and screaming.



Williams and Clark went to investigate the apartment where the



disturbance had reportedly started. Inside the apartment, the officers found



signs of a struggle, including items in disarray, a large hole in the bathroom



door, and blood on the bathroom floor and on the washer and dryer. Before they



could search further, the officers heard screaming and the sounds of a heated



argument from outside in the parking lot and left the apartment to assist their



fellow officers.



Outside, Williams and Clark saw that Hemmen was still attempting to



control Luis, while Makings was placing handcuffs on a woman, later identified



as Hilda Cuellar. According to Makings, Hilda had continued to approach Luis



and then started hitting Makings when he attempted to turn her away. About 10



to 15 people from the apartment complex had gathered around and were yelling



"let them go"4 as they moved toward the officers who were attempting to control



Hilda and Luis.



Upon arrival, Officer Heather Vance encountered Cynthia, who was



attempting to approach the officers, and ordered her to stay back. A short time



later, when assisting with Luis, Vance saw Cynthia approaching, apparently very



upset and "in attack mode."5 Makings saw Cynthia running toward the officers



4 Report of Proceedings 1 at 59.



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No. 65411-0-I/6



yelling something like "get off my family, get away from my family."6



As he returned to the parking lot, Officer Clark saw Cynthia screaming



and advancing toward one of the officers. When that officer tried to grab her,



she pulled away. Cynthia appeared to be "highly agitated, angry, and . . . was



advancing on officers that were trying to hold the crowd at bay."7 Concerned



that the situation was worsening and that Cynthia's aggressiveness posed a



safety risk to the other officers, Clark approached her from behind, placed his



arm around her neck, and applied a lateral vascular neck restraint (LVNR).8



Cynthia continued to flail her arms as Clark repeatedly ordered her to



stop resisting. When she eventually lowered her arms, Clark released his hold.



Cynthia immediately resumed her resistance, and as Clark tried to reapply the



LVNR, Cynthia bit his forearm and did not release Clark's arm until he had



wrestled her to the ground and struck her in the face. Several officers were



eventually able to restrain Cynthia after using a stun gun on her several times.



Because she had remained standing, Clark did not believe that Cynthia



had lost consciousness. Other officers thought that Cynthia had slumped and



5 Report of Proceedings 1 at 119.

6 Report of Proceedings 1 at 102.

7 Report of Proceedings 2 at 21.

8 Clark explained that the LVNR restricts the flow of blood to the brain without

restricting the subject's ability to breathe. If applied with sufficient pressure, the LVNR

will render the subject unconscious, without causing injury. Once the pressure is

released, the subject regains consciousness within a few seconds.



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No. 65411-0-I/7



appeared to be losing consciousness after Clark applied the LVNR.



Cynthia testified that on the evening of the incident, she was visiting her



cousin Hilda, who lived in the same apartment complex. Her cousin Luis was



also present. At some point, an argument broke out in another room and several



family members forced Luis outside. When she heard yelling, she went outside



and saw police officers using a stun gun on Luis. As Cynthia started walking



over to Luis to calm him down, a police officer threw her down to the ground



without warning. The officer then pulled her to her feet and put his arm around



her neck. Because she was unable to breathe, she bit the officer's arm. The



officer then hit her in the face and used a stun gun on her before placing her in



handcuffs. Cynthia denied that any officer had attempted to stop her from



approaching Luis.



The State charged Cynthia Cuellar with one count of third degree assault.



The court instructed the jury on Cynthia's claim of self-defense. Over defense



objections, the court also gave the State's proposed first aggressor instruction.



The jury found Cynthia guilty as charged, and the court imposed a first time



offender waiver sentence of four days of confinement for time served.



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No. 65411-0-I/8



ANALYSIS



Aggressor Instruction



Cuellar contends the trial court committed reversible error when it gave



the State's proposed first aggressor instruction over defense counsel's



objection.9 A jury instruction is appropriate if there is evidence to support the



theory on which the instruction is based. State v. Davis, 119 Wn.2d 657, 665,



835 P.2d 1039 (1992). Although not favored, an aggressor instruction is proper



if there is credible evidence, even if disputed, "from which a jury can reasonably



determine that the defendant provoked the need to act in self-defense." State v.



Riley, 137 Wn.2d 904, 909, 976 P.2d 624 (1999). The provoking act must be



intentional and related to the assault for which self-defense is claimed, but



cannot be the actual assault. State v. Kidd, 57 Wn. App. 95, 100, 786 P.2d 847,



review denied, 115 Wn.2d 1010 (1990). Words alone are insufficient



provocation to support the giving of an aggressor instruction. See Riley, 137



Wn.2d at 911. Whether the evidence was sufficient to support the giving of an



aggressor instruction is a question of law that we review de novo. State v. Bea,



162 Wn. App. 570, 254 P.3d 948, 951 (2011), petition for review filed, No. 86383-



9 Instruction 10, based on WPIC 16.04, provided: "No person may, by any

intentional act reasonably likely to provoke a belligerent response, create a necessity

for acting in self-defense and thereupon use or attempt to use force against another

person. Therefore, if you find beyond a reasonable doubt that the defendant was the

aggressor, and that a defendant's acts and conduct provoked or commenced the fight,

then self-defense is not available as a defense."



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No. 65411-0-I/9



1 (Wash. Aug. 18, 2011).



We consider the evidence in the light most favorable to the party



requesting the instruction. State v. Wingate, 155 Wn.2d 817, 823 n.1, 122 P.3d



908 (2005).



Citing State v. Wasson, 54 Wn. App. 156, 772 P.2d 1039, review denied,



113 Wn.2d 1014 (1989), Cuellar contends that an aggressor instruction is



improper as a matter of law when the alleged act of provocation is directed to a



third party and not toward the eventual assault victim. She argues that because



the evidence established that she was approaching an officer other than Officer



Clark, the trial court should not have given the aggressor instruction. Wasson



provides no support for this proposition.



In Wasson, the court held that the evidence was insufficient to support an



aggressor instruction where Reed, a neighbor, intervened in a fight between



Wasson and his cousin. After striking Wasson's cousin several times, Reed



approached Wasson, who shot Reed. The court concluded that Wasson could



not be the aggressor because the fight between Wasson and his cousin was not



related to Reed's assault and the only provoking act was therefore the assault



itself. Wasson, 54 Wn. App. at 159-60.



But the Wasson court expressly noted that the defendant's intentional



acts directed to a third party could justify an aggressor instruction if they were



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No. 65411-0-I/10



likely to provoke a belligerent response from the ultimate victim. Id. at 160-61,



citing State v. Thomas, 63 Wn.2d 59, 385 P.2d 532 (1963), overruled on other



grounds by State v. Rogers, 83 Wn.2d 553, 520 P.2d 159 (1974). Relying on



Wasson, Washington courts have repeatedly upheld the giving of an aggressor



instruction where the defendant's provoking act was directed to a third party.



See, e.g., State v. Davis, 119 Wn.2d 657, 666, 835 P.2d 1039 (1992) (evidence



that defendant pushed a woman was an intentional act "'reasonably likely to



provoke a belligerent response'" from the woman's companion who intervened to



assist her), quoting Wasson, 54 Wn. App. at 159; State v. Kidd, 57 Wn. App. at



100 (jury could reasonably find that defendant's shooting of two people on a bus



and subsequent flight was sufficient to provoke response from police).



In this case, unlike Wasson, Cynthia's provoking act was directly related



to Officer Clark's attempts to restrain her. The State's evidence established that



police officers responded to a reported domestic disturbance and were



attempting to restrain a man who was kicking and screaming and a woman who



had approached despite warnings to stay back. During the course of the



incident, 10 to 15 onlookers had gathered around and appeared to be upset with



the officers' attempts to control the situation. Officers were also concerned that



someone involved in the disturbance had been armed with a knife.



At this point, Cuellar began shouting and challenging the officers' actions



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No. 65411-0-I/11



and then approached them in an aggressive manner. Contrary to Cuellar's



claim, her conduct included aggressive physical acts directed toward the



officers, not merely words. Viewed in the light most favorable to the State,



Cuellar's actions were reasonably likely to provoke a response from fellow



officers attempting to prevent Cuellar from interfering with the efforts to subdue



the suspect. See Kidd, 57 Wn. App. at 100 ("Citizens can scarcely be surprised



that police come after them . . . in such circumstances."). The evidence was



therefore sufficient to support an aggressor instruction.



Cuellar also contends that the trial court erred in refusing to supplement



the aggressor instruction with an instruction that "words alone" do not constitute



an act of first aggression. At the end of an extensive objection to the giving of



the aggressor instruction, defense counsel commented that "if we're going to



give that [first aggressor] instruction, then I think there needs to be an instruction



that words alone are not sufficient."10 But the record does not indicate that the



trial court ever ruled on counsel's suggestion. Nor is there any indication that



defense counsel objected to the trial court's failure to give a "words alone"



instruction, submitted a proposed instruction, or presented any legal argument in



support of the instruction. Under the circumstances, the issue was not



preserved for appellate review. See State v. Guloy, 104 Wn.2d 412, 422, 705



10 Report of Proceedings 2 at 128.



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No. 65411-0-I/12



P.2d 1182 (1985) (objection that does not specify legal basis is insufficient to



preserve question for appellate review), cert. denied, 475 U.S. 1020 (1986).



Prosecutorial Misconduct



Cynthia contends that she was denied her right to a fair trial by



prosecutorial misconduct during closing argument. She therefore bears the



burden of establishing that the challenged comments were both improper and



prejudicial. State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009).



Prejudice occurs only if there is "a substantial likelihood the instances of



misconduct affected the jury's verdict." State v. Pirtle, 127 Wn.2d 628, 672, 904



P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996). If there was no objection,



the defendant must demonstrate that the comments were so flagrant and ill-



intentioned that no instruction could have cured the resulting prejudice. State v.



Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997), cert. denied, 523 U.S.



1008 (1998). We review misconduct claims in the context of the total argument,



the evidence addressed, the issues in the case, and the jury instructions. State



v. Boehning, 127 Wn. App. 511, 519, 111 P.3d 899 (2005).



During closing argument, the deputy prosecutor asked, without objection,



"Which is lying?"11 Cynthia argues that the deputy prosecutor improperly



suggested that to acquit her, the jury would have to find that the State's



11 Report of Proceedings 2 at 158-59.



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No. 65411-0-I/13



witnesses were lying. See State v. Casteneda-Perez, 61 Wn. App. 354, 362-63,



810 P.2d 74 (misleading to suggest that an acquittal requires the jury to find that



the police officers are lying), review denied, 118 Wn.2d 1007 (1991).



But the challenged comment did not invite the jury to make an improper



choice between acquitting Cuellar or determining that the officers were lying.



See State v. Barrow, 60 Wn. App. 869, 875-76, 809 P.2d 209, review denied,



118 Wn.2d 1007 (1991). Cuellar testified that as she was approaching Luis, an



officer grabbed her without warning, threw her to the ground, and then



immediately picked her up and grabbed her around the neck. The brief



rhetorical question "which is lying?" occurred during a lengthy review of the



specific testimony and evidence that contradicted Cuellar's account of the



assault. Viewed in context, the deputy prosecutor's argument was a permissible



attempt to draw inferences about the credibility of witnesses from the specific



evidence before the jury. "Where a prosecutor shows that other evidence



contradicts a defendant's testimony, the prosecutor may argue that the



defendant is lying." State v. McKenzie, 157 Wn.2d 44, 59, 134 P.3d 221 (2006);



see also State v. Copeland, 130 Wn.2d 244, 291, 922 P.2d 1304 (1996) (where



witnesses contradicted defendant's account of specific events, argument that



defendant was lying did not constitute misconduct). The challenged remark was



not improper.



-13-



No. 65411-0-I/14



Cuellar also contends that the deputy prosecutor committed reversible



misconduct during rebuttal closing argument when she suggested that defense



counsel had been attempting to minimize the seriousness of the bite and then



repeatedly asked where "the line" should be drawn with hazards that police



officers face on the job:



Is it with her kicking? Is it with her swinging? Is it with her

spitting? Is it with her biting a police officer? Or is it when an

officer gets stabbed'[12]



A short time later, the deputy prosecutor added:



Officers do take an oath of protecting to serve and there are

hazards of doing their job. Where do they get protected? When

as a community is it said to the defendant no, that is not

acceptable? You are brought in from the community to do just that.

You are brought in to say this is acceptable or not.[13]



In each case, the trial court sustained an objection, but defense counsel did not



request a curative instruction or a mistrial. Cuellar argues that the deputy



prosecutor improperly appealed to the jury's passions and prejudices when she



urged the jury to act as the conscience of the community.



During closing argument, the deputy prosecutor has wide latitude to draw



and express reasonable inferences based on the evidence. State v. Hoffman,



116 Wn.2d 51, 94-95, 804 P.2d 577 (1991). But "appeals to the jury's passion



and prejudice are improper." State v. Echevarria, 71 Wn. App. 595, 598, 860



P.2d 420 (1993); see also State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174



12 Report of Proceedings 2 at 183.

13 Report of Proceedings 2 at 184.



-14-



No. 65411-0-I/15



(1988) (prosecutor has a duty to seek verdicts free from appeals to passion or



prejudice).



The State maintains that the comments were not improper because they



merely urged the jury to take the case seriously and act as the conscience of the



community. In general, "'appeals for the jury to act as a conscience of the



community are not impermissible, unless specifically designed to inflame the



jury.'" State v. Finch, 137 Wn.2d 792, 842, 975 P.2d 967 (quoting United States



v. Lester, 749 F.2d 1288, 1301 (9th Cir. 1984)), cert. denied, 528 U.S. 922



(1999).



But by invoking a hypothetical police stabbing and suggesting that the



jury had an obligation to "draw the line" and to protect police officers from the



hazards associated with their jobs, the deputy prosecutor no longer focused on



the specific evidence that supported the charged offense. To the extent she



implied there were reasons other than the State's evidence supporting a verdict,



the deputy prosecutor improperly invited the jury to decide the case on emotional



grounds. See State v. Bautista-Caldera, 56 Wn. App. 186, 195, 783 P.2d 116



(1989) (improper to argue that the jury send a message to society about the



general problem of child sexual abuse), review denied, 114 Wn.2d 1011 (1990).



Nonetheless, the misconduct did not constitute reversible error. The



improper remarks were brief and isolated, and at both the beginning and the end



of rebuttal closing argument, the deputy prosecutor urged the jury to find Cynthia



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No. 65411-0-I/16



guilty based on the State's evidence. Nor did the comments form part of an



overarching theme during the trial or the State's closing argument. Cf. State v.



Ramos, No. 65213-3-1, 2011 WL 4912836, at *7 (Wash. Ct. Oct. 17, 2011)



(improper comments at beginning of closing argument offered "as a prism



through which the jury should view the evidence"); State v. Monday, 171 Wn.2d



667, 257 P.3d 551 (2011) (prosecutor repeatedly invoked racial prejudice



throughout trial and closing argument). Finally, although the trial court sustained



two objections, defense counsel did not request a curative instruction or a



mistrial, suggesting that she did not view the comments as unfairly prejudicial at



the time. See State v. Negrete, 72 Wn. App. 62, 67, 863 P.2d 137 (1993),



review denied, 123 Wn.2d 1030 (1994). Under the circumstances, there was no



reasonable likelihood that the comments affected the jury's verdict.



* * *



See: http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=654110MAJ

Affirmed.