Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  40082-1-II

                             Respondent,

       v.

DEONTE JAMAR THOMPSON,                                     UNPUBLISHED OPINION

                             Appellant.

       Johanson, J.  --  A jury found Deonte Jamar Thompson guilty of three counts of first 

degree assault with firearm sentence enhancements, one count of first degree unlawful possession 

of a firearm,  and one count of unlawful possession of cocaine         with a firearm sentence 

enhancement.  He appeals, arguing that      the prosecutor committed numerous instances of 

misconduct during closing argument, and that these errors cumulatively denied him a fair trial.  

Thompson also argues that insufficient evidence supports that he was armed with a firearm while 

he possessed cocaine.    In his statement of additional grounds (SAG),1 Thompson argues 

insufficient evidence supports two of his assault convictions; also, he seeks dismissal of the

firearm sentence enhancement because of an erroneous jury instruction.  We affirm Thompson's 

convictions and sentence. 

1 RAP 10.10. 

No. 40082-1-II

                                            FACTS

       Marquita Jackson2 held a birthday celebration at her Tacoma, Washington home.  Just 

before 1:30  am on July 19,  2008,  Marquita and several other guests, including  Christina 

Williamson and Michael Jackson, sat on the front porch and saw a sport utility vehicle (SUV) 

drive by several times.  After the SUV drove by a third time, it disappeared around a street 

corner.  Williamson,  Marquita, Michael, and two  other guests        saw  Thompson    approach 

Marquita's house with a gun in his hand.  At trial, all five witnesses identified Thompson as the 

man holding the gun.  

       Thompson opened fire on the group as he walked toward the house.  One bullet grazed

Marquita's leg and another bullet struck Michael's arm.  Immediately after realizing that Michael 

had been shot, Marquita called 911,      identified  "Deonte" as the shooter,   and provided a 

description of Thompson and the SUV.  3 Verbatim Report of Proceedings (VRP) at 276.  As 

Thompson headed back to the SUV, he turned around and returned to retrieve a magazine clip 

that he had dropped.

       Tacoma police officers were dispatched to the shooting location,       responded within 

"seconds," and spotted the SUV around the corner from Marquita's house.  4 VRP at 390.  As 

officers pulled behind the SUV they saw someone entering it and activated their emergency lights, 

but the vehicle drove away.  The SUV eventually stopped and police arrested Thompson, the 

vehicle's driver, and a passenger from the back seat.  

       While performing a search incident to arrest,      officers discovered crack  cocaine in 

2 We refer to Marquita Jackson, Brittany Jackson, and Michael Jackson by their first names for 
purposes of clarity.  We intend them no disrespect.

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No. 40082-1-II

Thompson's front pants pocket.  While at the scene, one of the officers also noticed a handgun 

resting on the rear passenger floorboard of the SUV.  Forensic tests later determined that the 

bullet casings found at the shooting matched the handgun.

       At trial, witnesses testified to the above facts.  In addition, Thompson testified that he, a 

cousin, and an acquaintance had been near Marquita's house, expecting to get into a fight with 

someone connected to Michael, when he heard gunshots and returned to the SUV.  Thompson 

admitted that officers found crack cocaine on his person, but denied knowing about any gun or 

who fired the gun.  But Thompson  testified that  at one point  he  returned to get "the clip I 

dropped." 7 VRP at 850 (emphasis added).

       During closing and rebuttal arguments, the prosecutor made several statements challenged

on appeal.  First, the prosecutor argued that Thompson "failed to accomplish his premeditated 

act" to kill and was "not charged with attempted murder . . . the crime he actually committed." 7

VRP at 938.  The prosecutor also said that the State could have brought more than three assault 

charges, one for each person on the front porch during the shooting.  Next, the prosecutor stated

Thompson's guilt  or responsibility for the charged offenses at least seven  times.   Then, the 

prosecutor responded to defense arguments attacking Marquita's credibility by saying Marquita

"believes [her testimony] because it's the truth." 8 VRP at 1000.  Last, when responding to 

Thompson's defense that he was not the shooter and, in the alternative, that he acted recklessly 

rather than intentionally the prosecutor said, "You [can't] have it both ways.  [Thompson] wasn't 

the shooter, but if you believe [he] was, [he] didn't really intend to hurt anyone." 8 VRP at 993.  

Thompson objected at trial only to the prosecutor's reference of uncharged crimes, as being based 

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No. 40082-1-II

on facts not in evidence, and the perception of incompatible defenses, as a misstatement of law 

shifting the burden of proof.

       The jury found Thompson guilty as charged:     three counts of first degree assault, RCW 

9A.36.011(1)(a),  one count of first degree unlawful possession of a firearm, RCW 

9.41.040(1)(a),3 and one count of unlawful possession of a controlled substance (cocaine), RCW 

69.50.4013(1).4  The jury also found by special verdict that Thompson was armed with a firearm 

while committing the three assaults and while possessing cocaine.  Thompson appeals.

                                          ANALYSIS

                                  I. Prosecutorial Misconduct

       Thompson argues that the prosecutor committed several instances of misconduct during 

closing argument.  He asserts that the prosecutor improperly (1) appealed to the jury's passions 

and prejudices by accusing him of being guilty of uncharged crimes, (2) expressed a personal 

opinion that Thompson was guilty, (3) vouched for a witness's credibility, and (4) misstated the 

law.  He also contends that the cumulative effect of this misconduct denied him a fair trial.  The 

State argues that none of the prosecutor's statements constitute misconduct, but even if they did 

Thompson cannot show prejudice because of overwhelming evidence of his guilt.  We agree with 

the State that Thompson cannot show prejudice even if we assume the prosecutor's statements 

were misconduct.

3 We note a scrivener's error on Thompson's judgment and sentence, which lists the relevant 
statutory provision for first degree unlawful possession of a firearm incorrectly as RCW 
"9.94.040(1)(a)." CP at 211.  The State cited the correct statute in the charging information.

4 The State also charged Thompson with one count of drive-by shooting, RCW 9A.36.045(1), but 
the trial court dismissed this charge at the close of the State's case. 

                                               4 

No. 40082-1-II

       An appellant claiming prosecutorial misconduct must show both improper conduct and 

resulting prejudice.  State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006).  Prejudice exists 

only where there is a substantial likelihood the misconduct affected the jury's verdict.  State v. 

Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998).  

       Assuming without deciding that the prosecutor's        challenged statements constitute 

misconduct, Thompson cannot show any resulting prejudice.  Five eyewitnesses identified 

Thompson as the shooter.  Officers responded to the scene within seconds of the shooting and 

arrested Thompson after a short car chase.  Officers found the gun used in the shooting in the 

same car as Thompson.  Thompson testified at trial that he went to retrieve the magazine "clip I

dropped."   7 VRP at 850 (emphasis added).  Finally, Thompson admitted on the stand that 

officers found cocaine on his person.  Accordingly, overwhelming evidence supports the jury's 

verdicts and we are convinced that there is not a substantial likelihood that any misconduct by the 

prosecutor impacted the jury's verdict.  Thompson cannot possibly show prejudice and his claim 

of prosecutorial misconduct must fail.  

       Thompson also argues that cumulative effect of the prosecutor's misconduct denied him a 

fair trial.  Multiple incidents of a prosecutor's improper conduct that, when combined, materially 

affect the verdict violate a defendant's right to fair trial and require a new trial.  State v. Case, 49 

Wn.2d 66, 73-74, 298 P.2d 500 (1956); State v. Henderson, 100 Wn. App. 794, 805, 998 P.2d 

907 (2000).  Here, even if Thompson's allegations of misconduct are correct they cannot possibly 

combine to materially affect the jury's verdicts based on the overwhelming evidence that we have 

already outlined.

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No. 40082-1-II

                                 II.  Sufficiency of the Evidence

       Thompson argues that insufficient evidence supports the jury's verdict (1)  that he 

possessed a firearm while he possessed cocaine and (2) that he intended to inflict great bodily 

harm against two of the assault victims, Marquita and Williamson.

       First, Thompson argues that the State failed to show a nexus between the firearm, which 

was found in the rear passenger floorboard of the SUV, and his cocaine possession because the 

firearm was not easily accessible and readily available for his use when officers found the cocaine.  

The State responds that, taking the evidence in the light most favorable to the State, the jury 

could reasonably believe that Thompson possessed the firearm and the cocaine at the same time 

when he was shooting at the victims.  Second, Thompson claims that, absent any showing of 

intent to inflict great bodily harm, the jury lacked the evidence to find a necessary element of first 

degree assault in his assault charges against Marquita and Williamson.  We affirm Thompson's 

convictions.

       Sufficient evidence supports the jury's verdict if the jury has a factual basis for finding 

each element of the offense proven beyond a reasonable doubt.  State v. Green, 94 Wn.2d 216, 

221-22, 616 P.2d 628 (1980).  An appellant claiming insufficiency of the evidence admits the 

truth of the State's evidence and all inferences that reasonably can be drawn therefrom.  State v. 

Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).  We view both circumstantial and direct 

evidence as equally reliable, and defer to the trier of fact on issues of conflicting testimony, 

witness credibility, and the persuasiveness of the evidence.  State v. Thomas, 150 Wn.2d 821, 874-

75, 83 P.3d 970 (2004).  

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No. 40082-1-II

       Mere proximity or mere constructive possession is insufficient to establish that a defendant 

was armed at the time he possessed a controlled substance.  State v. Gurske, 155 Wn.2d 134, 138, 

118 P.3d 333 (2005).  A person is armed with a deadly weapon if it is easily accessible and readily 

available for use for either offensive or defensive purposes, whether to facilitate the crime's 

commission; escape the crime scene; protect contraband; or to prevent investigation, discovery, or 

apprehension by the police.  Gurkse, 155 Wn.2d at 137, 139.  And there must be a nexus between 

the defendant, the crime, and the weapon.  Gurkse, 155 Wn.2d at 140-41.  When reviewing the 

nexus requirement, we examine  "'the nature of the crime, the type of weapon, and the 

circumstances under which the weapon is found.'"  Gurkse, 155 Wn.2d at 142 (quoting State v. 

Schelin, 147 Wn.2d 562, 570, 55 P.3d 632 (2002) (plurality)).  Where the State can prove actual, 

rather than constructive, possession of a weapon, the State will rarely have to do more than 

establish the requisite connection.  See State v. Brown, 162 Wn.2d 422, 432, 173 P.3d 245 (2007) 

(rejecting argument that actual possession of a deadly weapon during an ongoing crime 

necessarily shows a nexus between the weapon and the crime); State v. Easterlin, 159 Wn.2d 203, 

209, 149 P.3d 366 (2006) (giving examples when a defendant's possession of a weapon during a 

crime's commission may be coincidental and unconnected to the crime, such as having a kitchen 

knife in a picnic basket).5

       RCW 9A.36.011,6 which outlines the elements of first degree assault, provides that once 

5 Thus, the State is incorrect when it asserts that the nexus requirement applies only when the 
State relies on constructive possession.

6 RCW 9A.36.011 states:
       (1) A person is guilty of assault in the first degree if he or she, with intent to inflict 
       great bodily harm:

                                               7 

No. 40082-1-II

the State establishes a defendant's mens rea to assault another, the defendant legally assaults even 

an unintended victim if that victim falls within the terms of the statute.  State v. Elmi, 166 Wn.2d 

209, 218, 207 P.3d 439 (2009).  Once the State proves a defendant's intent to inflict great bodily 

harm against a specific victim, her or his mens rea transfers under the statute to any unintended 

victim.  Elmi, 166 Wn.2d at 218.  Thus, a defendant intending to shoot someone in a house bears 

the risk of multiple convictions if several victims are present, regardless of whether the defendant 

knows of their presence.  Elmi, 166 Wn.2d at 218.

       Here, sufficient evidence supports Thompson's actual possession of the firearm while in 

possession of the cocaine.  Eyewitnesses identified Thompson as the shooter, who returned to the 

SUV after the shooting.  Within seconds of the shooting, police arrived at the scene and pulled 

behind the SUV while a passenger door was still open.  Police engaged in a short vehicle pursuit 

before the vehicle stopped and police arrested the occupants.  Police found the cocaine on 

Thompson's person after they pulled him from the vehicle.  Given the short period of time that 

passed between the shooting, Thompson's arrest, and the discovery of the cocaine, a reasonable 

juror could believe that Thompson had the cocaine in his pocket when he fired at the victims.

       Contrary to Thompson's argument, the State did not have to prove that he had the gun in 

order to protect the cocaine.  A nexus exists  between a weapon and the crime of unlawful 

              (a) Assaults another with a  firearm or any deadly weapon or by any force 
              or means likely to produce great bodily harm or death; or
              (b) Administers, exposes, or transmits to or causes to be taken by another, 
              poison, the human immunodeficiency virus as defined in chapter 70.24 
              RCW, or any other destructive or noxious substance; or
              (c) Assaults another and inflicts great bodily harm.
       (2) Assault in the first degree is a class A felony.

                                               8 

No. 40082-1-II

possession of a controlled substance when the defendant is near a firearm and could have used it

to protect the controlled substance.  Schelin, 147 Wn.2d at 574-75.

       Sufficient evidence supports the jury's verdict   and any possible misconduct by the 

prosecutor during closing argument could not have prejudiced the jury in light of the

overwhelming evidence presented.  

       With regard to Thompson's       assault charges, the State's evidence establishes -- and 

Thompson appears to agree -- that Thompson intended to inflict great bodily harm against 

Brittany's male cousins on the night of the shooting.7     Thompson fired multiple shots into 

Marquita's home -- one of which struck Michael, one of Brittany's cousins.  Accordingly, under 

RCW 9A.36.011, because the State established Thompson's intent to inflict great bodily harm on 

specific persons, Brittany's male cousins, Thompson's mens rea transferred to any unintended 

victims in the home -- including Marquita and Williamson.  See Elmi, 166 Wn.2d at 218.  

       Accordingly, the State's evidence sufficiently supported Thompson's convictions for 

assaults on Marquita and Williamson.

                                      III.  Jury Instruction

       Finally,  Thompson argues that the trial court erred by using a jury instruction that 

improperly implied a unanimity requirement for the jury to decide the special verdict form.  He

asks us to dismiss the firearm sentence enhancement.

       Generally, a party cannot raise an issue for the first time on appeal unless it raises a 

7 Brittany testified that Thompson said he would "meet up" and "fight" her male cousins.  6 VRP 
at 726.  Thompson concedes in his SAG that the State's evidence demonstrates that Thompson 
"had intent to cause bodily injury to any male cousins of Brittany." SAG at 9.

                                               9 

No. 40082-1-II

"manifest error affecting a constitutional right." RAP 2.5(a).  The appellant has the initial burden 

of showing that (1) the error is "truly of constitutional dimension" and (2) the error was 

"manifest."  State v. O'Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009).  An appellant cannot 

simply assert that a trial error occurred and label the error "constitutional"; instead, she or he 

must identify an error of constitutional magnitude and show how the alleged error actually 

affected her or his rights at trial.  State v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884 (2011). If 

an appellant successfully shows that a claim raises a manifest constitutional error, then the burden 

shifts to the State to prove that the error was harmless beyond a reasonable doubt under the 

Chapman8 standard.  Gordon, 172 Wn.2d at 676.

       To determine whether an error is truly of a constitutional dimension, appellate courts first 

look to the asserted claim and assess whether, if the claim is correct, it implicates a constitutional 

interest, as compared to another form of trial error.  O'Hara, 167 Wn.2d at 98.  Jury instruction 

errors, however, are not automatically constitutional in magnitude.  See O'Hara, 167 Wn.2d at 

106.  We recently held that jury instruction errors requiring jury unanimity to answer "no" on the 

special sentence enhancement verdict form are not constitutional in nature.  State v. Grimes, No. 

40392-7-II, WL 6018399, at *8 (Wash. Ct. Appeals Dec. 2, 2011).

       When we find an error constitutional, we must then determine whether it was manifest.  

O'Hara, 167 Wn.2d at 99.  To be "manifest," an appellant must show that the asserted error had 

practical and identifiable consequences at trial.  Gordon, 172 Wn.2d at 676.  To ascertain 

8 Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) (establishing 
State's burden to show harmless error beyond a reasonable doubt).

                                               10 

No. 40082-1-II

whether, given what the trial court knew at that time, the trial court could have corrected the 

alleged error, we must place ourselves in the shoes of the trial court when determining if an 

alleged error had an "identifiable consequence[]."  O'Hara, 167 Wn.2d at 108.

       If an alleged error is both "manifest" and of "constitutional magnitude," we will address 

the merits of the claim and determine whether, in the context of the entire record, the error is 

harmless beyond a reasonable doubt.  O'Hara, 167 Wn.2d at 98-99.  To find an error harmless 

beyond a reasonable doubt, from the record, we must find that the alleged instructional error did 

not contribute to the verdict obtained.  State v. Brown, 147 Wn.2d 330, 344, 58 P.3d 889 (2002).

       Thompson failed to object to the jury instructions at trial.  Now on appeal, he fails to 

identify a specific constitutional interest affected by the alleged jury instruction error.  Therefore, 

he failed to preserve this issue for appeal.  RAP 2.5(a); Grimes, 2011 WL 6018399, at *7 n.18.

       Thompson repeatedly cites State v. Bashaw, 169 Wn.2d 133, 234 P.3d 195 (2010); yet, 

the Supreme Court noted in Bashaw that jury instruction errors like those involved in Thompson's 

case do not constitute an error of constitutional magnitude but are instead a product of 

Washington common law.9  Bashaw, 169 Wn.2d at 146, n.7; Grimes, 2011 WL 6018399, at *7 

n.18.  And, because the erroneous jury instruction does not rise to a level of constitutional 

magnitude, we do not need to inquire whether the error was manifest or harmless.  Because 

Thompson failed to preserve this issue for appeal, we deny Thompson's request to vacate the 

9 The Supreme Court in Bashaw applied a constitutional harmless error analysis after determining 
the instruction was erroneous (see Bashaw, 169 Wn.2d at 147).  The court neither expressly 
addressed nor held that the error was constitutional in nature for purposes of the RAP 2.5(a) 
exception.

                                               11 

No. 40082-1-II

firearm sentence enhancement.10

       We affirm Thompson's convictions and sentence.

       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 in accordance with RCW 2.06.040, it 

is so ordered.

                                                                   Johanson, J.
We concur:

                 Penoyar, C.J.

                 Armstrong, J.

10 Even if the jury instruction error requiring unanimity was      of constitutional magnitude, 
Thompson must show practical and identifiable consequences at trial.  Gordon, 172 Wn.2d at 
676.  He cannot demonstrate any actual manifest prejudice resulting from this error because the 
jury unanimously determined that he shot at the victims with a firearm.  Finally, the error was 
harmless.  Even had the special verdict instruction not contained this error, Thompson fails to 
demonstrate  that the jury would not    have convicted him on the sentencing enhancement.  
Therefore, any instructional error was harmless.

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