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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent, v. CYNTHIA ROXANA CUELLAR, Appellant. ) ) ) ) ) ) ) ) ) ) No. 65411-0-I DIVISION ONE

PUBLISHED IN PART FILED: November 7, 2011

Becker, J. -- Cynthia Cuellar claimed that she bit a police officer in selfdefense. 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 selfdefense. 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.

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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

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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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

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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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

Because several of the participants share the same last name, we use their first names for purposes of clarity.

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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

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Report of Proceedings 1 at 59.

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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

Report of Proceedings 1 at 119. 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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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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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. 86383Instruction 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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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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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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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

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Report of Proceedings 2 at 128.

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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 illintentioned 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

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Report of Proceedings 2 at 158-59.

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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.

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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
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Report of Proceedings 2 at 183. Report of Proceedings 2 at 184.

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(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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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. Affirmed.

WE CONCUR:

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