146 Wn. App. 299, STATE V. HALE

[No. 35928-6-II. Division Two. August 5, 2008.]

THE STATE OF WASHINGTON, Respondent, v. DALE E. HALE, Appellant.

Peter B. Tiller (of The Tiller Law Firm), for appellant.

David J. Burke, Prosecuting Attorney, for respondent.

Authored by Marywave Van Deren.

Concurring: Joel Penoyar, Christine Quinn-Brintnall.

1 VAN DEREN, C.J. -- Dale Hale appeals his convictions and exceptional sentences for second degree assault and attempting to elude a police vehicle. He argues that (1) the trial court abused its discretion by imposing an exceptional sentence, (2) the exceptional sentencing statute is unconstitutional, (3) the trial court violated his speedy trial rights, (4) the State produced insufficient evidence to prove that he committed second degree assault, and (5) the prosecutor committed misconduct. We affirm.

FACTS

2 On April 27, 2006, while Ronald Clark, the chief criminal deputy for the Pacific County sheriff's department, was driving home on the beach in an unmarked police vehicle, he noticed Hale illegally driving a truck on the clam beds, driving in the surf, and spraying ocean water over his vehicle. After Hale's truck passed Clark, Clark turned on his emergency lights and attempted to pull Hale over. Clark learned from his dispatcher that Hale was driving a stolen truck.

3 Instead of pulling over, Hale let one of his passengers out, while his other female passenger stayed in the truck, and they continued to speed down the beach. 1 As Clark pursued him, Hale began to drive to the other end of the beach, where additional police officers had parked their vehicles. To avoid the officers, Hale jumped his vehicle over a canal, causing his vehicle to go airborne. He landed on the beach approach, which was occupied by other parked cars and pedestrians, and then he turned into the town of Ocean Park. Clark called for additional police assistance and asked Deputy Robert Langendorfer to take the lead in pursuing Hale because Langendorfer was driving a fully marked police car.

1 The speed limit on the beach is 25 miles per hour, and Clark estimated that Hale's speed ranged from 40 to 55 miles per hour.

4 Hale began speeding and attempting to flee on the roadways. A high-speed police chase ensued. Police officers put down a spike tire strip to force Hale to stop, but he turned around to avoid it. He then headed north toward Clark, who was headed south. Clark slowed because he saw Hale driving directly toward him. Clark turned off into a side street, but Hale's vehicle still came so close to his that their mirrors almost touched. Clark testified that if he had not pulled over, he "would have been hit head-on." Report of Proceedings (RP) (Dec. 11, 2006) at 34. He also testified that he felt helpless, was apprehensive that he would sustain bodily injury, and was fearful when he took evasive action to avoid being hit by Hale's speeding truck.

5 Shortly after this incident, Clark terminated the police pursuit due to public safety concerns and because children were being let out of a nearby school. Hale fled the truck, but the police apprehended him approximately three hours later. The State charged Hale with second degree assault with a deadly weapon, a motor vehicle (count I). It also alleged that the crime was aggravated by the following circumstances: (1) the offense was committed against a law enforcement officer, Clark, who was performing his official duties, (2) Hale knew Clark was a law enforcement officer, (3) Clark's status as a law enforcement officer is not an element of the offense, and (4) Hale was armed with a deadly weapon. In addition, the State charged Hale with attempting to elude a police vehicle (count II).

6 During trial, Clark testified that when he interviewed Hale, Hale told him that he drove into oncoming traffic "[t]o back the cops off." RP (Dec. 11, 2006) at 35. Langendorfer witnessed Hale's driving and testified that he believed that Hale was going to hit Clark head-on. He also testified that he "got the impression [Hale] was trying to cause an accident." RP (Dec. 11, 2006) at 130. A motorist testified that, while driving in the opposite direction, he saw Hale approaching at approximately 70 miles per hour and Hale almost hit him when Hale moved into oncoming traffic to pass other vehicles. And another motorist testified that Hale nearly hit him when Hale failed to stop at a stop sign and that he saw Hale almost hit another car as it pulled out of a parking lot.

7 Hale testified that he had been up for five days before the incident, was coming down from a drug high, and, when the police questioned him, he nodded in and out of consciousness and could not remember the questioning. He admitted that he was not taking his prescribed mental health medications. Nonetheless, Hale testified that he was speeding because he did not want the police to apprehend him and he wanted to leave town. He also testified that he was not deliberately going into oncoming traffic, was not trying to run other vehicles off the road, and did not try to hit Clark or make him apprehensive. Finally, Hale testified that he did not have control over his vehicle when he approached Clark and did not intend to drive into southbound traffic.

8 The jury found Hale guilty on both counts: second degree assault and attempting to elude a police vehicle. In addition, the jury returned a special verdict finding that Hale committed second degree assault against a law enforcement officer who was performing his official duties, Hale knew the victim was a law enforcement officer, and the victim's status as a law enforcement officer was not an element of the offense. The trial court sentenced Hale to an exceptional sentence of 100 months on count I and a standard range sentence of 29 months on count II, with the sentences to be served concurrently.

9 Hale appeals.

ANALYSIS

EXCEPTIONAL SENTENCE

10 Hale argues that the trial court abused its discretion in imposing an exceptional sentence because it failed to make findings and conclusions determining whether the aggravating circumstances the jury found were substantial and compelling to warrant his exceptional circumstance. Hale contends that because the trial court failed to make these findings and conclusions, we must remand for resentencing.

11 We agree that the trial court initially failed to enter any written findings as required by former RCW 9.94A.535 (2005). 2 On January 18, 2008, in order to complete our record for review, we remanded this case to the trial court for entry of findings of fact and conclusions of law under former RCW 9.94A.535, based on the record before the trial court without taking additional evidence. After the trial court entered findings of fact and conclusions of law, Hale filed a supplemental brief in which he assigned error to every finding and conclusion.

2 Former RCW 9.94A.535 provided in relevant part that "[w]henever a sentence outside the standard sentence range is imposed, the court shall set forth the reasons for its decision in written findings of fact and conclusions of law."

[1] 12 Generally, the jury must find the facts supporting an aggravated sentence beyond a reasonable doubt. See former RCW 9.94A.535(2)-(3); former RCW 9.94A.537(2), (5) (2005); Blakely v. Washington, 542 U.S. 296, 301-04, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); State v. Recuenco, 163 Wn.2d 428, 440, 180 P.3d 1276 (2008); State v. Suleiman, 158 Wn.2d 280, 292-93, 143 P.3d 795 (2006). If the jury unanimously finds the alleged aggravating circumstances beyond a reasonable doubt, then the trial court may sentence the defendant under former RCW 9.94A.535 to an exceptional sentence "if it finds . . . that the facts found are substantial and compelling reasons justifying an exceptional sentence." Former RCW 9.94A.537(5).

[2, 3] 13 The legislature requires that whenever the trial court imposes a sentence outside the standard range, it "shall set forth the reasons for its decision in written findings of fact and conclusions of law." Former RCW 9.94A.535. The legislature also established that if the trial court imposed a sentence outside the standard range, then "the sentence is subject to review only as provided for in RCW 9.94A.585(4)." 3 Former RCW 9.94A.535.

3 RCW 9.94A.585(4) provides:

To reverse a sentence which is outside the standard sentence range, the reviewing court must find: (a) Either that the reasons supplied by the sentencing court are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard sentence range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient.

14 Prior to Blakely, our Supreme Court established a three-part analysis to review the trial court's findings and conclusions, justifying an exceptional sentence under RCW 9.94A.585. State v. Fowler, 145 Wn.2d 400, 405, 38 P.3d 335 (2002).

First, the court must determine if the record supports the reasons given by the sentencing court for imposing an exceptional sentence. As this is a factual inquiry, the trial court's reasons will be upheld unless they are clearly erroneous. The appellate court must next determine, as a matter of law, whether the reasons given justify the imposition of an exceptional sentence. The sentencing court's reasons must . . . be "substantial and compelling." Former RCW 9.94A.120(2) [(2000)]. Finally, the court is to examine whether the sentence is clearly excessive or clearly lenient under the "abuse of discretion" standard. Former RCW 9.94A.210(4) [(2000)].

Fowler, 145 Wn.2d at 405-06 (citations omitted).

15 After Blakely, the trial court retains its discretion to determine whether the jury's findings "are substantial and compelling reasons justifying an exceptional sentence," former RCW 9.94.537(5), but the jury now determines the factual basis for the aggravating circumstances and the trial court is "left only with the legal conclusion of whether the facts alleged and found were sufficiently substantial and compelling to warrant an exceptional sentence." Suleiman, 158 Wn.2d at 290-91. Although the legislature has amended our statutes to conform to Blakely, RCW 9.94A.535 still requires a trial court to enter written findings of fact and conclusions of law to justify its imposition of any sentence outside the standard range. The statutory language is clear and the trial court must enter findings and conclusions justifying its exceptional sentence, as it did here. 4 See State v. Chapman, 140 Wn.2d 436, 450, 998 P.2d 282 (2000) ("If the language of a statute is clear on its face, courts must give effect to its plain meaning and should assume the Legislature means exactly what it says. . . . A statute that is clear on its face is not subject to judicial interpretation.").

4 "We will not add to or subtract from the clear language of a statute even if we believe the legislature intended something else but did not adequately express it. We will, however, add or subtract language if doing so is required to make the statute rational. And we will avoid a literal reading of the statute if it would result in an unlikely, absurd, or strained interpretation." State v. Castillo, 144 Wn. App. 584, 591, 183 P.3d 355 (2008) (citations omitted). Here, the legislature's requirement that the trial court enter findings and conclusions when the jury finds the aggravating circumstances beyond a reasonable doubt teeters on a strained interpretation. No such strained interpretation results when the court enters findings after imposing a sentence below the standard range or when the defendant waived the jury's findings. See former RCW 9.94A.535(1); former RCW 9.94A.537(2). First, in an innocuous effort to justify its exceptional sentence, the trial court may come dangerously close to making additional findings to support the exceptional sentence in contravention of Blakely. See, e.g., State v. Hagar, 158 Wn.2d 369, 374, 144 P.3d 298 (2006); Suleiman, 158 Wn.2d at 294 n.5; State v. Saltz, 137 Wn. App. 576, 583-84, 154 P.3d 282 (2007); State v. Van Buren, 136 Wn. App. 577, 580, 150 P.3d 597 (2007). Alternatively, the trial court, as here, will consume valuable judicial resources by entering findings that reiterate the jury's special verdict in its findings and conclusions when it imposes an exceptional sentence. Absent legislative directive, it may suffice for the trial court to attach the jury's verdict to the judgment and sentence, instead of entering findings and conclusions, when the jury finds aggravating circumstances and it imposes an exceptional sentence. We do not decide that issue here because the trial court entered findings and conclusions at our direction.

[4, 5] 16 After Blakely, no case has fully addressed an analysis under RCW 9.94A.535 when the jury finds the aggravating circumstances and the trial court imposes an exceptional sentence above the standard range. 5 We hold that we will review those findings and conclusions under a modified three-pronged analysis. Under the first prong, instead of determining whether the record supports the reasons the sentencing court gave for imposing an exceptional sentence, we must review whether the record supports the jury's special verdict on the aggravating circumstances. See RCW 9.94A.585(4); Fowler, 145 Wn.2d at 405.

5 See Suleiman, 158 Wn.2d at 290-92; Saltz, 137 Wn. App. at 580-82 (evaluating exceptional sentence under second prong of three-prong analysis when defendant stipulated to aggravating factors to avoid the jury's special verdict on those facts). But see State v. Law, 154 Wn.2d 85, 93, 110 P.3d 717 (2005); State v. McKee, 141 Wn. App. 22, 32-33, 167 P.3d 575 (2007); State v. Smith, 124 Wn. App. 417, 435, 102 P.3d 158 (2004), aff'd, 159 Wn.2d 778, 793, 154 P.3d 873 (2007) (all employing the three-prong analysis when the trial court imposes a sentence below the standard range and, therefore, the trial court, not the jury, found mitigating circumstances beyond a reasonable doubt).

A. The Trial Record Supports the Jury's Findings

17 First, we review whether the record supports the jury's findings. "As this is a factual inquiry, the [jury's] reasons will be upheld unless they are clearly erroneous." Fowler, 145 Wn.2d at 405. The legislature has provided statutorily enhanced penalties for acts against police officers as a matter of public policy. See former RCW 9.94A.535(3)(v). 6 Clark is a law enforcement officer and was attempting to stop Hale. Clark was performing his official duties and he was in a vehicle with flashing lights. Clark's status as a law enforcement officer is not an element of second degree assault. Therefore, the jury's findings were not clearly erroneous.

6 Former RCW 9.94A.535(3)(v) provided: "The offense was committed against a law enforcement officer who was performing his or her official duties at the time of the offense, the offender knew that the victim was a law enforcement officer, and the victim's status as a law enforcement officer is not an element of the offense."

B. The Trial Court's Reasons Were Substantial and Compelling

18 We next review de novo whether the trial court's reasons for imposing an exceptional sentence are substantial and compelling. See Fowler, 145 Wn.2d at 406. Here, the trial court carefully worded its findings to reiterate the jury's special verdict and avoided entering any additional findings that would have violated Hale's right to have a jury find beyond a reasonable doubt any factor used to increase his sentence. The trial court's findings of fact noted that the jury found Hale guilty and returned a special verdict, and recited verbatim the jury's special verdict. Then it concluded, as a matter of law, that (1) the jury found the aggravating circumstances, (2) "the facts found by the jury in the special interrogatory are substantial and compelling reasons justifying an exceptional sentence," (3) a sentence above the standard range was "in the interest of justice and [was] consistent with the purposes of the Sentencing Reform Act[ of 1981, chapter 9.94A RCW]," and (4) the exceptional sentence was "appropriate to ensure that punishment is proportionate to the seriousness of the offense." Clerk's Papers at 110. In addition, even before the legislature added this enumerated aggravating circumstance, we upheld the trial court's imposition of an exceptional sentence when the defendant assaulted a law enforcement officer who was performing his or her official duties. See, e.g., State v. Anderson, 72 Wn. App. 453, 465-66, 864 P.2d 1001 (1994); State v. Kidd, 57 Wn. App. 95, 104, 786 P.2d 847 (1990). The trial court's reasons for imposing an exceptional sentence were substantial and compelling.

C. The Sentence Is Not Clearly Excessive

19 Finally, we examine whether the trial court abused its discretion by imposing a sentence that is clearly excessive. See Fowler, 145 Wn.2d at 406. The trial court did not abuse its discretion in imposing Hale's sentence. Hale had an offender score of 9; therefore, the standard range for second degree assault was 63 to 84 months. Because second degree assault is a class B felony, the maximum sentence was 120 months. See RCW 9A.20.021(1)(b). The trial court imposed an exceptional sentence of 100 months, roughly the midrange between the high end of the standard range and the maximum sentence. The trial court did not abuse its discretion and the sentence was not clearly excessive.

20 We affirm Hale's exceptional sentence.

21 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

Constitutionality of the Exceptional Sentencing Statute

22 Hale argues that former RCW 9.94A.537 (2005) 7 is unconstitutional because it does not include a mechanism for empanelling a jury to consider aggravating factors if a defendant pleads guilty. A jury tried Hale and he makes no constitutional challenge as applied, but he nonetheless asks us to remand for resentencing. Because Hale did not plead guilty, he cannot maintain this claim. Furthermore, if he had entered a plea, he would have had to plead to the aggravating circumstances or have them tried before the fact-finder, thereby nullifying this claim. 8

7 Former RCW 9.94A.537(2) provides in relevant part:

The facts supporting aggravating circumstances shall be proved to a jury beyond a reasonable doubt. The jury's verdict on the aggravating factor must be unanimous, and by special interrogatory. If a jury is waived, proof shall be to the court beyond a reasonable doubt, unless the defendant stipulates to the aggravating facts.

8 The Washington State Supreme Court has already decided this issue. In a case decided seven months before Hale filed his appellate brief, the Court held that former RCW 9.94A.537, the version of the statute at issue here, intended "sentencing-juries to be empanelled when the defendant pleads guilty." State v. Pillatos, 159 Wn.2d 459, 477, 150 P.3d 1130 (2007). And that the exceptional sentence "statutory proceedings do not impermissibly chill the right to trial." Pillatos, 159 Wn.2d at 478. Because our Supreme Court held that former RCW 9.94A.537 requires a sentencing jury to be empanelled to consider aggravating circumstances, Hale's constitutional argument fails and we do not consider it further.

Additionally, Pillatos also held that former RCW 9.94A.537 applied only to cases where trials had begun or defendants had entered guilty pleas after the statute's effective date, April 15, 2005. 159 Wn.2d at 465. In 2007, however, the Legislature amended RCW 9.94A.537, noting that it intended the statute to apply retroactively to "all cases that come before the court for trial or sentencing, regardless of the date of the original trial or sentencing." Laws of 2007, ch. 205, $ 1. The Legislature also added a new subsection, effective April 27, 2007, after Hale was sentenced, stating:

In any case where an exceptional sentence above the standard range was imposed and where a new sentencing hearing is required, the superior court may impanel a jury to consider any alleged aggravating circumstances listed in RCW 9.94A.535(3), that were relied upon by the superior court in imposing the previous sentence, at the new sentencing hearing.

RCW 9.94A.537(2). The Legislature has cured any possible unconstitutional chilling effect.

Speedy Trial

23 Hale argues that the trial court violated his speedy trial rights and the prosecutor mismanaged his case because his trial did not begin until 41 days after the last date he waived his speedy trial rights. We disagree.

A. Standard of Review

24 Generally, the State must bring a defendant who is in custody to trial within 60 days after his or her arraignment. CrR 3.3(b)(1), 3.3(c)(1). The parties may agree to continue the trial past 60 days or "the court may continue the trial date to a specified date when such continuance is required in the administration of justice and the defendant will not be prejudiced in the presentation of his or her defense." CrR 3.3(f)(2). "[T]he decision to grant or deny a motion for a continuance rests within the sound discretion of the trial court." State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004).

25 "We will not disturb the trial court's decision unless the appellant or petitioner makes 'a clear showing . . . [that the trial court's] discretion [is] manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.'" Downing, 151 Wn.2d at 272 (alteration in original) (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). A decision is manifestly unreasonable if the court takes a position and decides the issues in a way that no other reasonable person would do, despite applying the correct law to facts it found supported by the evidence. If the trial court's decision relies on unsupported facts or applies the incorrect legal standard, its discretion is exercised on untenable grounds or for untenable reasons. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003).

B. October 11, 2006 Continuance

26 On June 30, 2006, Hale waived his speedy trial rights until October 30, 2006, and the trial court scheduled his trial for October 24. On October 11, the State requested a continuance because on October 10 Clark told the prosecutor that he could not testify from October 24 until November 5, as his child was undergoing brain surgery. Thus, the State asked for a continuance until as soon as possible after November 5 because Clark was a material witness, or alternatively, it asked the trial court to dismiss the case without prejudice.

27 Hale objected to the State's motion to continue, arguing that: (1) he had already waived his right to a speedy trial once; (2) the State failed to effectively communicate with the Pacific County Sheriffs Department because Clark's son's surgery was prescheduled, yet he was only informed of the unavailability 13 days before trial; (3) he could not assist in his defense if the State confined him to jail because it could not adequately address his mental health needs; and (4) he could not assist in his defense if the State confined him to the state penitentiary in Walla Walla because he would have difficulty communicating with his trial counsel.

28 The trial court was not persuaded that Hale would be unable to prepare for trial if he continued to be confined to the penitentiary in Walla Walla because he was able to adequately prepare for the CrR 3.5 hearing scheduled for the next day, even though his counsel resided in Pacific County. It allowed the continuance based on Clark's son's medical procedure.

The reason is it was brought to the State's attention October 10th and I find . . . that that's a legitimate reason to be unavailable is your child's undergoing, [the prosecutor] called some type of brain injury; that that is unquestionably a for cause reason in my opinion to continue the trial date against the position of the Defense counsel or . . . of the Defendant.

RP (Oct. 11, 2006) at 17. Furthermore, the trial court found that Hale's ability to present a defense would not be prejudiced by the continuance because Hale did not have any defense witnesses that would be unavailable for trial and because he was incarcerated on other charges. The trial court rescheduled the trial for November 29 because that was the first available date for a two-day trial.

29 "The unavailability of a material state witness is a valid ground for continuing a criminal trial where there is a valid reason for the unavailability, the witness will become available within a reasonable time, and there is no substantial prejudice to the defendant." State v. Nguyen, 68 Wn. App. 906, 914, 847 P.2d 936 (1993). The prosecutor admitted that, although Clark may have communicated the dates he was unavailable to testify to the prosecutor's office, he did not personally learn of Clark's unavailability until October 10. Hale likens this situation to routine court congestion, which we generally have found not to be a valid reason for a continuance. See State v. Mack, 89 Wn.2d 788, 793-94, 576 P.2d 44 (1978); State v. Kenyon, 143 Wn. App. 304, 313-14, 177 P.3d 196 (2008); State v. Smith, 104 Wn. App. 244, 251-52, 15 P.3d 711 (2001). We disagree with Hale. Clark was unavailable because his child was gravely ill and his unavailability was not routine and was unavoidable. See Smith, 104 Wn. App. at 252.

30 The State presented a valid reason for Clark's unavailability, Clark was then available in a reasonable amount of time, and the trial court concluded that there was no substantial prejudice to Hale because he was already incarcerated and did not have any defense witnesses who were prejudiced by the delay. Hale did not make a clear showing that the trial court abused its discretion.

C. November 28, 2006 Continuance

31 On November 28, the trial court granted the State's motion for another continuance because of severe winter storms. It noted that the sheriff's office was unable to pick Hale up from the Monroe Correctional Facility, where he was then housed, and it reasoned that jurors' lives would have been endangered if they were required to travel potential long distances to the court house. Hale argues that his speedy trial rights were violated because the State mismanaged the case by waiting until the last minute to transport him from the Monroe Correctional Facility for the trial.

32 Hale cites no authority for his argument that it was an abuse of the court's discretion to transport him from the state correctional facility to the county jail one day before trial. Furthermore, even if Hale could have been transported earlier, the trial court found that jurors could not safely drive to the court house due to weather and road conditions and the trial court would have had to continue the trial. Poor weather and unsafe driving conditions for both the sheriff's office and jurors are "[u]navoidable or unforeseen circumstances affecting the time for trial beyond the control of the court or of the parties," which are excluded in computing the time for trial, and the trial court did not abuse its discretion in granting the continuance here. CrR 3.3(e)(8).

D. Total Length of Continuances

33 Finally, Hale argues that a 41-day delay from the expiration of his first waiver was too long and violated his right to a speedy trial. He does not assign error to the trial court's reasoning that its docket was congested but he implies this argument. Nonetheless, if the trial court granted the continuances "for good cause, we will not second-guess the trial judge's discretion in placing the trial on the court's calendar." State v. Flinn, 154 Wn.2d 193, 201, 110 P.3d 748 (2005). Here, the trial court granted both continuances for good cause. It also offered to allow the State to dismiss the charges without prejudice so that the State could re-file later, but Hale rejected this suggestion. Furthermore, the trial court scheduled the trial at the next available date for a consecutive two-day trial. Therefore, we do not second-guess the trial court's discretion in placing Hale's trial on the trial court's calendar and we hold it did not abuse Hale's right to a speedy trial.

Sufficient Evidence

34 Hale argues that the State's evidence was insufficient to prove that he formed the required mental state to commit second degree assault because he testified that he did not intend to use the vehicle to create apprehension and fear of bodily injury in Clark. We disagree.

35 Evidence is sufficient to support the defendant's conviction if any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt when viewing the evidence in the light most favorable to the State. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). "When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We view both circumstantial and direct evidence as equally reliable and do not review credibility determinations on appeal because we "defer to the trier of fact on issues of conflicting testimony, credibility of the witnesses, and the persuasiveness of the evidence." Thomas, 150 Wn.2d at 874-75.

36 Here, the State charged Hale with assault in the second degree for "intentionally assault[ing] Ron Clark, a human being, with a deadly weapon." CP at 25; see also RCW 9A.36.021(1)(c). Because no statute defines the term assault, we apply the common law definition to the crime. State v. Aumick, 126 Wn.2d 422, 426 n.12, 894 P.2d 1325 (1995). Washington recognizes three definitions of assault, one of which is to put "another in apprehension of harm whether or not the actor intends to inflict or is incapable of inflicting that harm." Aumick, 126 Wn.2d at 426 n.12 (quoting State v. Walden, 67 Wn. App. 891, 894, 841 P.2d 81 (1992)). Here, the trial court instructed the jury on this definition of assault, defining it as "an act done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury." CP at 47. This form of assault "require[s] specific intent that the defendant intended to inflict harm or cause reasonable apprehension of bodily harm." State v. Hall, 104 Wn. App. 56, 62, 14 P.3d 884 (2000). And a person acts "intentionally when he acts with the objective or purpose to accomplish a result which constitutes a crime." RCW 9A.08.010(1)(a).

37 Hale argues only that he did not act intentionally when he assaulted Clark. But Clark testified that Hale continued to drive south toward him and that he necessarily had to turn off to a side road to avoid being hit by Hale. Clark also testified that Hale told him that he drove into oncoming traffic because he wanted "[t]o back the cops off." RP (Dec. 11, 2006) at 35. And Langendorfer testified that he believed Hale was going to hit Clark head-on. Furthermore, Langendorfer testified that he "got the impression [that Hale] was trying to cause an accident." RP (Dec. 11, 2006) at 130. Although Hale testified that he did not intend to hit Clark or cause him any apprehension of being hit, it is the jury's duty, not ours, to weigh the credibility of witness testimony. Here, the jury could have rationally believed that Hale was acting intentionally. Therefore, we hold that the State presented sufficient evidence to persuade a rational jury that Hale acted intentionally, thereby committing second degree assault. See Thomas, 150 Wn.2d at 874-75.

Prosecutorial Misconduct

38 Hale next contends that the prosecuting attorney's conduct was improper because the prosecuting attorney induced him to comment on Clark's credibility and to call Clark a liar.

39 "To prove prosecutorial misconduct, the defendant bears the burden of proving that the prosecuting attorney's conduct was both improper and prejudicial." State v. Weber, 159 Wn.2d 252, 270, 149 P.3d 646 (2006), cert. denied, ___ U.S. ___, 127 S.Ct. 2986 (2007). "If the defendant proves the conduct was improper, the prosecutorial misconduct still does not constitute prejudicial error unless [we] determine[ ] there is a substantial likelihood the misconduct affected the jury's verdict." State v. Stenson, 132 Wn.2d 668, 718-19, 940 P.2d 1239 (1997). A prosecuting attorney commits misconduct when his cross-examination seeks to compel a witness to opine whether another witness is telling the truth. State v. Suarez-Bravo, 72 Wn. App. 359, 366, 864 P.2d 426 (1994); State v. Padilla, 69 Wn. App. 295, 299, 846 P.2d 564 (1993). Such questioning invades the jury's province and is unfair and misleading. State v. Casteneda-Perez, 61 Wn. App. 354, 362, 810 P.2d 74 (1991).

40 When the case turns on the credibility of two witnesses, "the likelihood of the jury's verdict being affected by improper questioning is substantial." Padilla, 69 Wn. App. at 302. But Division One of this court has held that the defendant was not prejudiced by the prosecutor's cross-examination because (1) although the prosecutor repeatedly asked the witnesses whether they were testifying that the officer witness lied, the witnesses rarely would agree that the officer witness was a liar; (2) the officer's testimony was believable and corroborated; and (3) the jury could not reach a verdict as to one of the co-defendants, indicating that the jury's verdict was not biased by the improper cross-examination. Casteneda-Perez, 61 Wn. App. at 364.

41 Here, the State cross-examined Hale and questioned his memory and credibility.

Q. Well, if you don't remember the conversation [you had with Clark after the incident] then how in the world can you remember not [telling him that you were driving toward him to make the police back off]?

A. I would never say that because it's not true.

Q. You would never say that?

A. No.

Q. So what you're saying is what Ron Clark testified under oath is not true.

A. It's not true.

Q. So you're basically calling Ron Clark a liar.

RP (Dec. 12, 2006) at 90-91.

42 Before Hale answered, his counsel successfully objected contending that the prosecutor impermissibly asked Hale if he thought Clark was a liar. But only after Hale completed his testimony did the trial court instruct the jury not to consider Hale's comments about Clark.

I'm striking it and ordering you not to consider the line of questioning that you heard earlier when [the prosecutor] was asking questions of Mr. Hale. There was a certain point in there where there were some questions regarding differences in testimony, differences in statements between what Deputy Clark said regarding his version of the testimony and the Defendant's. Specifically, there was a line of questioning where Mr. Anderson turned to Deputy Clark - excuse me, Chief Criminal Deputy Clark and said something like, "So Deputy Clark's a liar." You're not to consider that particular line of questioning in any way, shape or form. You're to disregard that entirely.

RP (Dec. 12, 2006) at 104-05.

43 The trial court excused the jury for lunch and informed the parties that he did not want to interrupt Hale's testimony but wanted to provide a curative instruction before lunch, so that the jury could consider it during their break. Hale then moved for a mistrial based on his argument that the prosecutor asked Hale to call the State's witness a liar. The trial court did not grant the mistrial because it found that its instruction cured any errors with the testimony.

44 Here, even if we were to conclude that the prosecutor's questioning was improper, it was not prejudicial. The trial court instructed the jury to disregard the testimony. And we presume that a jury follows the court's instructions. State v. Southerland, 109 Wn.2d 389, 391, 745 P.2d 33 (1987). Therefore, Hale was not prejudiced by the prosecutor's questioning.

45 We affirm.

PENOYAR, J., concurs.

QUINN-BRINTNALL, J., concurs in the result only.