State Of Washington, V. Derek Steven Lebeda

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

87067-0-I

Respondent,

DIVISION ONE

v.

UNPUBLISHED OPINION

DEREK STEVEN LEBEDA,

Appellant.

CHUNG, J. — Derek Steven Lebeda challenges his two convictions for

assault in the second degree with firearm enhancements. He asserts the trial

court abused its discretion in admitting hearsay statements and it violated his

federal and state confrontation clause rights when it admitted part of a 911 call

and the victims’ statements to an officer. He further argues the prosecutor

committed misconduct or, in the alternative, that he was denied effective

assistance of counsel because his counsel did not object. He claims cumulative

error and also asserts errors in his judgment and sentence. Finally, Lebeda filed

a statement of additional grounds raising additional issues.

We affirm the convictions. We also remand to the trial court to strike from

Lebeda’s judgment and sentence the DNA fee, the victim penalty assessment

(VPA), and the finding that Lebeda has the current or future ability to pay legal

financial obligations.

No. 87067-0-I/2

FACTS

On December 16, 2022, a woman later identified as Jessie Grace called

911. Grace said she had been in a car in a Target parking lot with a man who

held a gun to her head. Grace alerted 911 that her friend, Shauna La Fountain,

remained in the car and was in the driver’s seat, with the man pointing a gun at

her head. An additional bystander, later identified as Joslyn Lamadrad, 1 called

911 on two separate occasions to report the incident. Initially, for a brief portion

of the first call, Lamadrad’s child reported that a person in the parking lot had a

gun. Lamadrad then took over the call and provided additional information. She

called a second time and provided her name and confirmed her phone number.

The jury heard Grace’s and Lamadrad’s calls at trial. 2

John Bass, a Kitsap County Sheriff’s sergeant and crisis negotiator,

located the car as soon as he arrived at the scene. After establishing a perimeter,

Bass and other officers approached the vehicle. Upon approaching the vehicle,

Bass asked the driver, La Fountain, to get out and throw the keys to the curb. La

Fountain complied and ran toward other deputies nearby. According to Bass, she

exited “swift[ly]” and appeared distressed.

Bass then told Lebeda, who was located in the back seat, to step out of

the car with his hands raised. Lebeda replied but did not exit the vehicle, and

initially Bass could not discern what he was saying. Bass moved in closer to

“establish communication.” Bass described Lebeda’s positioning as having his

1 The caller’s first name appears in one of the 911 call transcripts with the alternate

spelling “Joslin.”

2 The trial court excluded a portion of Lamadrad’s second 911 call. On appeal, Lebeda

challenges only the admission of the statements from Lamadrad’s first 911 call.

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arm “wrapped over the driver’s seat and hand going down.” At some point,

Lebeda said he was stuck and could not move.

When moving in closer, Bass asked where the gun was located. Lebeda

responded it was “under [his] right hand.” Bass then instructed Lebeda not to

move, and Bass reached in and secured Lebeda’s hands and removed a Taurus

.40 caliber semiautomatic pistol. Although there were no rounds in the chamber,

there were rounds in the accompanying magazine, and it was determined to be a

usable firearm.

Cranac Surpris, a patrol deputy in the Kitsap County Sheriff’s Office, was

also on the scene. He could see only the back of Lebeda’s head as he aided in

establishing the perimeter. When La Fountain exited the vehicle, she ran toward

Surpris and stated “[t]his person held a gun to my head.” Surpris also testified

that La Fountain appeared “frantic” and “very scared.”

After securing Lebeda, Surpris went to talk to La Fountain and Grace, who

were waiting near the Starbucks inside the Target. According to Surpris, both

women appeared “scared and frantic.” Initially, Surpris testified it was

approximately 10 minutes between the incident and their conversation. The

following day during further examination, Surpris added that the women had

requested to the use the restroom before they spoke. Surpris could not recall

how long they were in the restroom before he could interview them. Surpris

reiterated that both women appeared upset before and after entering the

restroom. During the interview, La Fountain repeatedly stated Lebeda held a gun

to her head.

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Neither La Fountain nor Grace testified at trial. Video surveillance from the

store showed the car drive quickly into the parking lot and stop. A man in a black

hoodie, suspected to be Michael Oliveri, an acquaintance of Lebeda, exited the

vehicle. Oliveri did not testify at trial either. Lebeda was subsequently convicted

of two counts of assault in the second degree with a firearm.

Lebeda timely appealed. He also filed a statement of additional grounds

for review (SAG).

DISCUSSION

Lebeda argues that the trial court erred when it admitted Lamadrad’s first

911 call under the hearsay exception for present sense impressions and the

“coffee shop statements” by Grace and La Fountain as excited utterances. He

also contends that admitting the “coffee shop statements” and the final portion of

Grace’s 911 call violated his right to confrontation. Additionally, he asserts the

prosecutor committed misconduct in a variety of ways, which he also claims

constituted cumulative error. In the alternative, he asserts that even if this court

does not conclude there was incurable prosecutorial misconduct, then he

received ineffective assistance of counsel. Finally, he challenges the imposition

of the DNA fee and the VPA, as well as the court’s finding that he was not

indigent, in his judgment and sentence.

I. Admission of Hearsay

A. Lamadrad 911 Call

Lebeda argues the trial court abused its discretion when it admitted most

of Lamadrad’s first 911 call under the “present sense impression” exception to

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the hearsay rule. He argues it did not meet the requirements of the exception

because most of the call was Lamadrad reporting what unidentified people said,

not what she herself was perceiving or had perceived.

This court reviews admission of evidence under hearsay exceptions for

abuse of discretion. Brundridge v. Fluor Fed. Servs., Inc., 164 Wn.2d 432, 450,

191 P.3d 879 (2008). A court abuses its discretion when it adopts a view that a

reasonable person would not take, its decision is based on facts unsupported in

the record, or its decision was reached by applying an incorrect legal standard.

State v. Sisouvanh, 175 Wn.2d 607, 623, 290 P.3d 942 (2012).

The State argues Lebeda did not preserve his objection. While Lebeda

objected to Lamadrad’s call primarily based on relevancy, he also said he

“[didn’t] think it’s a present sense impression other than the fact that she could

testify, ‘I’m watching this commotion. I have no independent knowledge of what

it’s about.’ ” 3 This objection was sufficient to preserve the issue for our review.

Hearsay is an out-of-court statement offered to prove the truth of the

matter asserted. ER 801(c). Hearsay is inadmissible as evidence, with a few

well-established exceptions. ER 802. The “present sense impression” exception

to the hearsay rule permits the admission of a “statement describing or

explaining an event or condition made while the declarant was perceiving the

event or condition, or immediately thereafter.” ER 803 (a)(1). “Present sense

impression statements must grow out of the event reported and in some way

3 Shortly thereafter, Lebeda’s counsel said, “It probably meets the criteria for excited

utterance and/or present sense impression, but that does not necessarily make it admissible. It

still has to be relevant under ER 401 and 403. It’s not relevant what other unnamed people are

saying may be happening in the parking lot.”

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characterize that event.” State v. Martinez, 105 Wn. App. 775, 783, 20 P.3d 1062

(2001), overruled on other grounds by State v. Rangel-Reyes, 119 Wn. App. 494,

81 P.3d 157 (2003). “The statement must be a ‘spontaneous or instinctive

utterance of thought,’ evoked by the occurrence itself, unembellished by

premeditation, reflection, or design. It is not a statement of memory or belief.” Id.

(quoting Beck v. Dye, 200 Wash. 1, 9-10, 92 P.2d 1113 (1939)). 4

Lebeda concedes that there are admissible portions of the call during

which Lamadrad describes what she can see and hear. However, Lebeda

challenges other portions of the call during which it appears that she and her

child are reporting what someone else said, as opposed to what they saw

directly.

At the beginning of the call, the child reported they were at a Target and

there is “somebody with a gun.” The child clarified that they were in the parking

lot, and when the 911 operator asked if someone is “being threatening with a gun

or just carrying it,” they reiterated, “Um, a person, um, over there has a gun.” The

child’s statements describe the event while they are perceiving it, unembellished

by premeditation, reflection, or design, and, thus, qualify as present sense

impressions.

Lebeda also challenges Lamadrad’s statements as merely reporting what

others said. When she first takes the phone from the child, she reported what

was happening: “Someone was saying this person has a gun, on the park bench,

4 Lebeda argues that based on Martinez, 105 Wn. App. at 783, because the statements

here were responses to questions, they cannot be present sense impressions. However,

subsequent cases have clarified that responses are not automatically exempt from being present

sense impressions. See, e.g., State v. Robinson, 189 Wn. App. 877, 889, 359 P.3d 874 (2015).

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on the right side in front of Target. And there’s a girl over there and nobody will

go over there because this guy’s got a gun.” When asked what kind of gun, she

responded, “I have no idea. I’m putting myself in my car and all I can do is hear

yelling over there and someone saying he’s got a gun.” Like the child, Lamadrad

narrated the events as they were happening and as she perceived them. The

911 operator asks about other people she can see and the clothes they are

wearing, and Lamadrad describes a man with a black hood and jeans. The

operator asks, “[H]e’s the one we think has the gun?” and Lamadrad responds,

“yeah. Somebody yelled he’s got a gun,” although she had not seen it. When

asked if the person was holding the gun on himself or someone else, the

following exchange took place:

Lamadrad: No. Someone else that they said.

Operator: Okay. Okay.

Lamadrad: It looks like another girl and she was screaming.

Operator: Can you still hear the screaming?

Lamadrad: She was yelling, “don’t hurt me.” No, I can’t hear

anything and I can’t see her moving at all, either.

Lamadrad is describing and explaining an event while she is perceiving it, so her

comments qualify as present sense impressions. The trial court did not abuse its

discretion when it admitted Lamadrad’s first 911 call.

B. Grace’s and La Fountain’s Statements to Surpris

Lebeda also argues the trial court abused its discretion when it admitted

the “coffee shop” statements— Surpris’s testimony about what La Fountain and

Grace said to him when they spoke near the Starbucks inside Target—as excited

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No. 87067-0-I/8

utterances. At trial, the prosecutor first asked Surpris what La Fountain told him

in the Starbucks interview, Lebeda objected based on hearsay, the prosecutor

responded that it was an excited utterance, and the court overruled the objection.

However, when the prosecutor asked Surpris what Grace said, Lebeda did not

object. 5

An excited utterance is “[a] statement relating to a startling event or

condition made while the declarant was under the stress of excitement caused by

the event or condition.” ER 803(a)(2). The party seeking to admit a statement as

an excited utterance must meet three requirements: “(1) a startling event or

condition occurred, (2) the declarant made the statement while under the stress

of excitement of the startling event or condition, and (3) the statement related to

the startling event or condition.” State v. Ohlson, 162 Wn.2d 1, 8, 168 P.3d 1273

(2007). “Often, the key determination is whether the statement was made while

the declarant was still under the influence of the event to the extent that the

statement could not be the result of fabrication, intervening actions, or the

exercise of choice or judgment.” State v. Woods, 143 Wn.2d 561, 597, 23 P.3d

1046 (2001). The first two requirements “must . . . be established by evidence

extrinsic to the declarant’s bare words.” State v. Young, 160 Wn.2d 799, 810,

161 P.3d 967 (2007). Said evidence “can include circumstantial evidence, such

5 The State contends that Lebeda waived any objection to Grace’s “coffee shop

statements” to Surpris because he failed to object. But Surpris was discussing the same

conversation with both La Fountain and Grace, and after the court overruled the objection to

Surpris testifying about what La Fountain told him, the prosecutor asked Surpris only two more

questions, including one about the demeanor of both women, before asking what Grace had told

him. Thus, the objection could be construed to cover Surpris’s testimony about his conversations

with both Grace and La Fountain. We exercise our discretion to review Lebeda’s challenges to

Surpris’s testimony about statements by both Grace and La Fountain.

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No. 87067-0-I/9

as the declarant’s behavior, appearance, and condition, appraisals of the

declarant by others, and the circumstances under which the statement is made.”

Id.

Here, Surpris testified that he was part of a police response to 911 calls

about someone holding a gun to a woman’s head. He aided in establishing the

perimeter around the vehicle, and he was the first officer La Fountain spoke to

upon exiting the vehicle, when she stated someone had just held a gun to her

head. Bass and Surpris also confirmed that a firearm was located near Lebeda

as he was being apprehended. Thus, there was sufficient extrinsic evidence to

establish a startling event took place, as is contemplated under the first

requirement for an excited utterance.

The evidence also shows La Fountain and Grace made these statements

while still under the stress and excitement caused by the event. Surpris

described La Fountain as initially running toward him “as if she’d just been

through something horrible.” She had a “flush to the face,” and she appeared

scared at that moment, as “she spoke very fast,” and “her voice [] crack[ed] a few

times.” Surpris also described Grace as “flustered as well,” seeming “confused

and scared.” Overall, he described both as “scared and frantic.” He also stated

that when he went to speak with them near the Starbucks inside Target, which he

recalled being less than ten minutes later, 6 they maintained that same level of

fear and upset.

6 Lebeda highlights that upon further examination, Surpris indicated that before he spoke

to La Fountain and Grace, they used the restroom together; he could not recall how long they

remained in the restroom; and he did not know what they did while in the restroom. To the extent

this testimony impeaches his earlier time estimate, this evidence was not before the trial court

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No. 87067-0-I/10

Finally, the statements clearly related to the event, as La Fountain

repeated that she had a gun held to her head and both expressed a belief that

Lebeda would follow through on his threats. Because the trial court’s decision to

admit La Fountain’s and Grace’s statements to Surpris in the Target Starbucks

under the excited utterance exception was not based on untenable grounds or

reasons, the trial court did not abuse its discretion. 7

II. Confrontation Clause

Lebeda also argues that the admission of the “coffee shop statements”

and the last portion of Grace’s 911 call violated his confrontation clause rights

because the challenged statements are testimonial in nature. We disagree.

The Sixth Amendment of the United States Constitution provides criminal

defendants the right to “be confronted with the witnesses against him.” U.S.

CONST. amend. VI. To protect this right, the confrontation clause bars admission

of out-of-court testimonial statements unless the witness is unavailable and the

defendant had prior opportunity for cross-examination. Crawford v. Washington,

541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). But “not all out-

of-court statements give rise to the protections of the confrontation right because

not all speakers are acting as a ‘witness’ against the accused as described in the

when it made the initial determination, and thus cannot be a basis for an abuse of discretion. See

State v. Bluford, 188 Wn.2d 298, 310, 393 P.3d 1219 (2017) (“a judge cannot abuse his or her

discretion based on facts that do not yet exist”).

7 Additionally, the statements are cumulative and any error in admitting them would be

harmless. State v. Ramirez-Estevez, 164 Wn. App. 284, 293, 263 P.3d 1257 (2011) (improper

admission of evidence may be harmless where similar testimony is already admitted). Here,

Surpris’s testimony about La Fountain’s and Grace’s respective “coffee shop statements” repeat

the same information from other sources: Grace’s 911 call that she had a gun held to her head,

her friend (La Fountain) had a gun held to her head, and the perpetrator waved a gun at others

and appeared to be “freaking out”; La Fountain’s statements to Surpris upon exiting the vehicle

that Lebeda held a gun to her head.

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No. 87067-0-I/11

Sixth Amendment.” State v. Wilcoxon, 185 Wn.2d 324, 325, 373 P.3d 224 (2016)

(quoting Crawford, 541 U.S. at 51). The confrontation clause applies only to

testimonial statements. Id. at 333-34.

A testimonial statement “is designed to establish or prove some past fact,

or is essentially a weaker substitute for live testimony at trial.” Id. at 334.

Statements that “were made under circumstances which would lead an objective

witness reasonably to believe that the statement would be available for use at a

later trial” are testimonial. Crawford, 541 U.S. at 52. Nontestimonial statements

are statements that have another primary purpose, such as when there is an

ongoing emergency or to guide the provision of medical care. State v. Burke, 196

Wn.2d 712, 727-28, 478 P.3d 1096, cert. denied, 142 S. Ct. 182 (2021). The

State has the burden of establishing that statements are not testimonial. State v.

O’Cain, 169 Wn. App. 228, 235, 279 P.3d 926 (2012). The appellate court

examines whether a defendant’s right to confrontation was violated only if the

statement is testimonial. Wilcoxon, 185 Wn.2d at 332. Appellate courts review

alleged violations of the confrontation clause de novo. State v. Jasper, 174

Wn.2d 96, 108, 271 P.3d 876 (2012).

The State argues neither the challenge to the “coffee shop statements”

nor the challenge to Grace’s 911 call is preserved for appeal. Although the right

to confrontation touches upon a constitutional right, it may be waived if the

defendant does not raise the issue before the trial court. State v. Burns, 193

Wn.2d 190, 210-11, 438 P.3d 1183 (2019). This is so because, in part, without

an objection, “ ‘nothing the trial court does or fails to do is a denial of the right,

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No. 87067-0-I/12

and if there is no denial of a right, there is no error by the trial court, manifest or

otherwise, that an appellate court can review.’ ” Id. at 211 (quoting State v.

Fraser, 170 Wn. App. 13, 25-26, 282 P.3d 152 (2012)).

A. Grace’s and La Fountain’s Statements to Surpris

Lebeda objected to Surpris’s testimony about La Fountain’s and Grace’s

“coffee shop statements,” but on the basis that it was hearsay, without

specifically raising a confrontation clause issue. During a later conversation in

which the parties are discussing La Fountain’s anticipated testimony the following

day, Lebeda again does not raise a confrontation clause issue. Rather, he

reminds the court of his request to question La Fountain outside of the jury’s

presence, given his inability to previously obtain an interview or deposition from

her. Finally, at the start of trial the following day, the State indicated that La

Fountain had not appeared yet and requested a continuance to the afternoon,

after testimony from Surpris concluded, to attempt to locate her. Lebeda objected

to the continuance and asked the trial court require the State to call its witness

immediately. The court declined and instead granted the continuance.

The only instance in which Lebeda tangentially challenges the “coffee

shop statements” as a confrontation clause violation is Lebeda’s motion to

dismiss, well after the testimony at issue and after the State rested. In presenting

the argument, Lebeda acknowledged the court had already determined the first

portion of Grace’s 911 call was nontestimonial, but stated the trial court had “not

[ruled] on anything else.” Following this statement, the only specific evidence he

referenced was Grace’s “unrefuted” 911 call. In denying the motion, the trial court

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did not specify what evidence was being considered, but stated, “the analysis of

Crawford has established that the statements that were made were not

testimonial in nature.” Because Lebeda never directly objected to the “coffee

shop statements” as a confrontation clause violation, much less prior to Surpris’s

testimony, either pretrial or during the trial, the court could not act or fail to act in

relation to the right. Thus, as any error is not preserved, we decline to review the

issue.

B. Later Portion of Grace 911 Call

As to Grace’s 911 call, Lebeda challenges only the final portion when

Grace was prompted to discuss what led to the incident, as this shifted the call

from addressing an ongoing emergency to eliciting information for investigation of

a possible crime. 8

As a preliminary matter, there are multiple instances in which Lebeda

alludes to a confrontation clause problem with the call, but he formally objected

to the entirety of the call before jury selection began. Thus, the issue is preserved

for review.

8 This portion of the 911 call proceeded as follows:

[Operator] Do you know what started this today?

[Grace] No. It didn’t, he (IA) he was, he was asking to get out of the car and he

would and he didn’t want to get out of the car, I guess and she says she was

going to go see her kids and he was like, no you fucking not, bitch, I’m going to

fucking, a which one of your friend you want me to hurt first? That’s what he said,

that’s what he said, he’s like which one of your friends you want me to hurt first?

What one of your friends you want me to shoot? I was like, oh my god, are you

serious? And he just pulled out the gun and (IA) and pointed it, you know what

I’m saying? He’s fucking crazy, dude. (IA) deal is, I have no idea what his deal is.

He’s on drugs or something, I guess, I mean, I don’t know. You know she’s been

trying to (IA) I know she’s scared shitless right now.

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To determine whether a statement is testimonial or nontestimonial, courts

apply the “primary purpose test.” State v. Scanlan, 193 Wn.2d 753, 766, 445

P.3d 960 (2019), cert. denied, 140 S. Ct. 834 (2020); Burke, 196 Wn.2d at 726.

“Courts must determine the primary purpose of an interrogation ‘by objectively

evaluating the statements and actions of the parties to the encounter, in light of

the circumstances in which the interrogation occurs.’ ” Burke, 196 Wn.2d at 726

(quoting Michigan v. Bryant, 562 U.S. 344, 370, 131 S. Ct. 1143, 179 L. Ed. 2d

93 (2011)). Determining “whether an emergency exists and is ongoing is a highly

context-dependent inquiry.” Bryant, 562 U.S. at 363.

Here, while Grace stated, “They’re about to make contact with the vehicle,

he’s getting out of the car right now,” the fact that officers had just arrived does

not obviate the emergency. The 911 operator was using information provided by

Grace to direct the police to the right location:

[Operator] Do you see my officers in the area?

[Grace] Yes, yes, yes, I see them, I see them, I see them, they’re

right there.

[Operator] Are you able to point out where they’re going?

[Grace] Yeah, I’m pointing, right, pointing right, right to them.

[Operator] Okay. Okay, just let me know when they make contact

with the vehicle, okay?

The testimony and the video exhibits also indicate the police took some time to

approach the vehicle after they arrived. Additionally, among the statements made

by Grace, she indicated Lebeda’s erratic behavior could be due to being under

the influence of something, which would be helpful for officers in addressing the

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situation. Immediately after Grace’s answer, the operator asks if the officers are

making contact, and Grace confirms they have. The call and transcript capture

commands in the background that indicate the officers’ efforts to gain control of

the situation were ongoing. Thus, because the 911 call continued to discuss the

ongoing emergency, we hold the statements were nontestimonial and that the

trial court’s admission of the statements did not violate the confrontation clause. 9

III. Prosecutorial Misconduct

Lebeda challenges portions of the State’s closing argument as

misconduct. First, he claims prosecutor’s comments that evidence was

undisputed constituted comments on his decision not to testify and shifted the

burden of proof. 10 Second, he challenges the statements urging jurors to

“declare” the truth with their verdict. Finally, he challenges the State’s

9 Even if the admission of Grace’s statement at the end of the 911 call was erroneous,

the error is harmless. Confrontation clause errors are subject to a harmless error analysis.

Wilcoxon, 185 Wn.2d at 335. “We find a constitutional error harmless only if convinced beyond a

reasonable doubt any reasonable jury would reach the same result absent the error and where

the untainted evidence is so overwhelming it necessarily leads to a finding of guilt.” State v.

Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996) (citations omitted).

Here, both the nontestimonial portion of Grace’s 911 call and La Fountain’s statement as

she left the car were admitted and indicated that Lebeda held a gun to La Fountain’s head. The

“coffee shop statements” further corroborated these events. Surpris testified that both women

were scared and shaken from the event. And, both Lebeda and the gun, which was under his

hand upon being confronted by the officers, were found at the scene, circumstantially supporting

the State’s overall case. Thus, it is clear from the record that the admission of the final portion of

Grace’s 911 call did not alter the outcome of the State’s case against Lebeda. Therefore, any

error was harmless beyond a reasonable doubt.

10 While “[s]ome improper prosecutorial remarks can touch on a constitutional right but

still be curable by a proper instruction.” State v. Smith, 144 Wn.2d 665, 679, 30 P.3d 1245 (2001).

See, e.g., State v. Warren, 165 Wn.2d 17, 28, 195 P.3d 940 (2008) (improper statements that

defendant did not enjoy benefit of any reasonable doubt were not prejudicial as the trial court

provided a thorough curative instruction); State v. Emery, 174 Wn.2d 741, 756-57, 278 P.3d 653

(2012) (rejecting request to apply the constitutional harmless error standard to claims that a

prosecutor’s remarks concerned the presumption of their innocence and impermissibly shifted the

burden of proof).

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comparison of the “jury’s role in deciding whether the State had proved guilt

beyond a reasonable doubt with decisions jurors make everyday.”

We generally review allegations of prosecutorial misconduct under an

abuse of discretion standard. State v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d

125 (2014). The defendant bears the burden of showing the comments were

improper and prejudicial. Id. “If the defendant did not object at trial, the defendant

is deemed to have waived any error, unless the prosecutor’s misconduct was so

flagrant and ill intentioned that an instruction could not have cured the resulting

prejudice.” State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d 653 (2012).

“Reviewing courts should focus less on whether the prosecutor’s misconduct was

flagrant or ill intentioned and more on whether the resulting prejudice could have

been cured.” Id. at 762. Under this heightened standard, the defendant must

show that (1) no curative instruction would have obviated any prejudicial effect on

the jury and (2) the misconduct resulted in prejudice that “had a substantial

likelihood of affecting the jury verdict.” Id. at 760.

“In the context of closing arguments, the prosecuting attorney has ‘wide

latitude in making arguments to the jury and prosecutors are allowed to draw

reasonable inferences from the evidence.” State v. Fisher, 165 Wn.2d 727, 747,

202 P.3d 937 (2009). A prosecutor may also argue that evidence does not

support the defense theory. State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747

(1994). Moreover, “[a] prosecuting attorney’s allegedly improper remarks must be

reviewed in the context of the total argument, the issues in the case, the

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evidence addressed in the argument, and the instructions given to the jury.” State

v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).

A. Shifting Burden of Proof

Lebeda points to numerous times during closing argument when the

prosecutor made statements concerning unrebutted testimony presented at trial.

He claims these statements impermissibly shifted the burden to him.

The prosecutor argued, “An assault happened. It’s proven by all the

evidence. And while it’s my job to prove it to you, there is nothing that rebuts that

an assault happened, nothing to say it didn’t.” Shortly thereafter, the prosecutor

emphasized that “Jessie Grace and Shauna La Fountain were assaulted and

held at gunpoint in that parking lot, the unrebutted truth [the jury] heard at trial.”

Lebeda argued in closing that nobody knew what happened in the car that

day. He discussed La Fountain’s absence from trial and her refusal to speak with

the defense before trial. He additionally discussed the hypothetical questions he

intended to ask Grace, the absence of Oliveri, and his inability to challenge

credibility. He also claimed that the video evidence was unhelpful because it did

not show the interior of the car. He also speculated that La Fountain and Grace

entered the Target restroom before Surpris could interview them to possibly hide

drugs and ensure their stories matched.

Subsequently, in rebuttal, the prosecutor addressed Lebeda’s closing

argument by summarizing the evidence:

What we know is, we have two very upset people who were in

tears, terrified. Two highly trained officers, with no reason to doubt

their credibility, came and said two terrified women who had just

been deeply traumatized were allowed to comfort each other in the

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bathroom, and they came back and gave the exact same consistent

story as the one given to 911 and the one quickly given to Deputy

Surpris as Shauna La Fountain ran from the police where she had

been held hostage. That’s what we have here, and that proves this

case.

The prosecutor then reiterated the correct burden of proof: “it is my burden. He

doesn’t have to prove anything. But you get to listen to his arguments. They just

aren’t relevant. What’s relevant is what happened in this car, not collateral things

about his investigation . . . .” “You’ve only ever heard one version of what

happened, the truth, which is that the defendant assaulted two people in it at

gunpoint.” He continued,

You heard it from the crime victims on scene. You heard it from a

random 911 caller. You heard about their demeanor, their obvious

terror, how everything suggested something terrible had happened

in that car, and you’ve heard nothing to rebut that. This happened.

In his final summary of the evidence, the prosecutor argued, “And the defendant

knows what happened. He knows he assaulted Ms. Grace and Ms. La

Fountain. . . . He had a gun because he assaulted Ms. La Fountain and Ms.

Grace. He held them at gunpoint. There’s no other explanation for why he had

that gun there.”

“Comments by a prosecutor that certain testimony is undenied are not

improper as long as there is no reference to who may be in a position to deny it.”

State v. Brett, 126 Wn.2d 136, 176, 892 P.2d 29 (1995). “Prosecutors may also

comment on the defendant’s failure to present evidence on a particular issue if

persons other than the accused could have testified as to that issue.” Id.

Here, the prosecutor’s references to the lack of rebuttal evidence were

general, not specifically about Lebeda’s failure to rebut evidence with his own

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testimony. Lebeda was not the only person who failed to testify; La Fountain,

Grace, and Oliveri also did not testify. Indeed, much of the trial and following

closing argument from both parties concerned highlighting the strengths and

weaknesses of the circumstantial evidence supporting this case. Viewed in

context, the prosecutor’s statements were appropriate argument based on the

evidence presented at trial as well as attempts to rebut Lebeda’s arguments. See

State v. Thorgerson, 172 Wn.2d 438, 448, 258 P.3d 43 (2011) (it is proper

rebuttal to raise issues raised by defense). 11

Lebeda also suggests the State improperly suggested that it had “met [its]

burden of proving the crimes because [he] was in the car with the gun.” However,

this presentation of the argument is misleading. The prosecution made the

comment in the context of discussing the to-convict instruction, following a

discussion of each element and the corresponding evidence. 12 Then, the

prosecutor summarized, “An assault happened. It’s proven by all the evidence.

11 Lebeda relies on State v. Messinger, 8 Wn. App. 829, 509 P.2d 382 (1973), and State

v. Fiallo-Lopez, 78 Wn. App. 717, 899 P.2d 1294 (1995), to indicate these comments qualified as

substantive comments on his right to silence and constituted improper burden shifting, but the

cases are distinguishable. In Messinger, the prosecution’s closing argument drew the jury’s

attention to unrebutted evidence concerning an inculpatory conversation in which every

participant except the defendant testified at trial. 8 Wn. App. at 840. The court held that because

the defendant was the only other person who could clarify or deny the contents of the

conversation, the prosecutor’s argument drew inappropriate attention to the defendant’s right to

silence. Id. Similarly, in Fiallo-Lopez, the prosecutor highlighted that there was “no attempt by the

defendant to rebut the prosecution’s evidence regarding his involvement in the drug deal,” when

the defendant was the only one who could have explained his presence at the sites of the drug

deals. 78 Wn. App. at 729-30. This case is more like Brett, in which the court held it was not

misconduct for the prosecutor to argue that there was “absolutely no evidence” that the gun was

moved to cause an accidental discharge or that there was no evidence to support defendant’s

having used a needle for insulin, as other potential witnesses could have testified to these issues.

126 Wn.2d at 177.

12 It first noted that Lebeda’s presence in the car was clearly established by several

witnesses, as well as the date and location of the confrontation. The prosecution then followed by

identifying the question for the jury as “did the defendant assault Jessie Grace and Shauna La

Fountain with a deadly weapon.” The prosecutor then walked through the evidence for each

element, referencing the relevant jury instructions.

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No. 87067-0-I/20

And while it’s my job to prove it to you, there is nothing that rebuts that an assault

happened, nothing to say it didn’t.” The challenged statement did not

impermissibly misstate the burden or the evidence. 13

B. Comments about Speaking the Truth

Lebeda challenges the prosecutor’s references to speaking the truth as

improper. One of the challenged statements was as follows:

And your instructions tell you what a reasonable doubt is in

Instruction No. 3. A reasonable doubt is not any doubt. It’s not any

possible doubt. A reasonable doubt is an abiding belief in the truth

of the charge.

As the prosecutor is directly quoting the jury instruction, this statement was not

improper.

Lebeda also challenges the following statements:

In voir dire we talked about the importance of speaking the truth,

even an uncomfortable truth, even if we don’t know the

consequences of that truth. The truth of what happened here is, the

defendant committed this crime, and it’s important, when you get

into deliberations, that you speak that truth.

The prosecutor later again requested the jurors to use their verdict to declare “the

truth” and urged them to “speak [the truth].”

The jury’s job is not to determine the truth of what happened; a jury

therefore does not “ ‘speak the truth’ ” or “ ‘declare the truth.’ ” Emery, 174 Wn.2d

at 760 (quoting State v. Anderson, 153 Wn. App. 417, 429, 220 P.3d 1273

(2009)). Rather, a jury’s job is to determine whether the State has proved the

13 Moreover, had the prosecutor misstated the defendant’s obligations, this type of error

is curable by instruction. Indeed, before the parties’ closing arguments, the trial court instructed

the jury that “The defendant is not required to testify. You may not use the fact that the defendant

has not testified to infer guilt or to prejudice him in any way.”

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No. 87067-0-I/21

charged offenses beyond a reasonable doubt. Id. The prosecutor’s statements

suggesting that the jury needed to “speak the truth” were therefore improper.

Because there was no objection, the question is then whether it was so

flagrant and ill intentioned that an instruction could not have cured the resulting

prejudice. Lebeda cannot meet this burden, as the remarks do not indicate the

comments “engendered an incurable feeling of prejudice in the mind of the jury.”

Id. at 762. At most, the remarks could potentially confuse the jury about its role

and the burden of proof. And had Lebeda objected, the trial court could have

properly explained the jury’s role, reiterated the State bears the burden of proof,

and emphasized the defendant bears no burden. Id. at 762-65. Thus, while the

statements were improper, they were not so flagrant and ill-intentioned that any

resulting prejudice could not have been cured by an instruction.

C. Comments About Reasonable Doubt Standard

Finally, Lebeda argues that the prosecutor committed misconduct by

misrepresenting the reasonable doubt standard by equating it to everyday

decision making and common sense.

Arguments that improperly equate reasonable doubt to everyday decision-

making and common sense are improper. 14 State v. Anderson, 153 Wn. App.

417, 431, 220 P.3d 1273 (2009), rev. denied, 170 Wn.2d 1002 (2010). For

example, in Anderson, the prosecutor argued that “beyond a reasonable doubt is

a standard that you apply every single day.” 153 Wn. App. at 425. The

14 Lebeda also cites to Lindsay, 180 Wn.2d at 436, State v. Fuller, 169 Wn. App. 797,

825, 797, 282 P.3d 126 (2012), and State v. Walker, 164 Wn. App. 724, 732, 265 P.3d 191

(2011), to support the contention that these principles have been reaffirmed by later cases.

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No. 87067-0-I/22

prosecutor subsequently gave examples of comparable everyday situations, like

leaving children with a babysitter or changing lanes on a freeway. Id. Division

Two held that this argument improperly “minimized the importance of the

reasonable doubt standard and of the jury’s role in determining whether the State

had met its burden.” Id. at 431.

Here, during voir dire, the prosecutor posed questions concerning

circumstantial evidence. He described a scenario in which jurors would awake to

snow on the ground, and they could determine whether it had snowed or not

based on surrounding factors. He also asked the jurors to discuss possible

extraneous factors they would utilize to determine he was an attorney. In the

context of discussing intent and motive, the prosecutor posed this scenario to the

jurors:

Let’s say you’re selected for this jury and you’re leaving. . .You’re

walking out of the courthouse. You see people in the courtroom—I’ll

go the traditional way—a man in a tuxedo, a woman in a white

dress, people in the gallery, people holding hands.

What are those people intending to do?

He then proceeded to discuss the differences between intent and motive in the

context of the hypothetical. In his closing and rebuttal arguments, the prosecutor

again referenced these hypotheticals. Further, at one point during closing, in

discussing what a reasonable doubt entails, the prosecutor stated:

There’s a principle you’ve probably heard of. It’s present in physics,

philosophy, science, and the courtroom, and that’s Occam’s razor.

Most of you probably know it, but I’m going to give my version of it

to you now, which is basically the simplest answer is what

happened. When you’re presented with a lot of possibilities, the

simplest answer is what happened.

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No. 87067-0-I/23

The prosecutor then went into further detail as to how the alternative arguments

presented by the defense did not make sense in context of the “Occam’s razor”

principle.

Even if the types of hypotheticals initially posed during voir dire and

referenced during the prosecutor’s closing were improper, Lebeda cannot show

that the arguments here constituted flagrant and ill-intentioned conduct that could

not be cured. The jury received instruction no. 3, which stated,

A reasonable doubt is one for which a reason exists and may arise

from the evidence or lack of evidence. It is such a doubt as would

exist in the mind of a reasonable person after fully, fairly, and

carefully considering all of the evidence or lack of evidence. If, from

such consideration, you have an abiding belief in the truth of the

charge, you are satisfied beyond a reasonable doubt.

Jurors are presumed to follow instructions. Emery, 174 Wn.2d at 766. Had

Lebeda objected to the prosecutor’s arguments attempting to analogize common

decisions to elucidate the concept of reasonable doubt, the court could have

cured any prejudice with another instruction such as instruction no. 3. Thus,

Lebeda cannot demonstrate that any prosecutor misconduct in defining

reasonable doubt constituted reversible, incurable, flagrant and ill-intentioned

misconduct.

D. Cumulative Error

Lebeda argues that the cumulative effect of the instances of misconduct

requires reversal. We disagree.

“A defendant cannot demonstrate flagrant and ill-intentioned conduct

where a curative instruction could have cured any error.” State v. Walker, 164

Wn. App. 724, 737, 265 P.3d 191 (2011) (citing State v. Corbett, 158 Wn. App.

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No. 87067-0-I/24

576, 594, 242 P.3d 52 (2010)). “But the cumulative effect of repetitive prejudicial

prosecutorial misconduct may be so flagrant that no instruction or series of

instructions can erase their combined prejudicial effect.” Id. (citing State v. Case,

49 Wn.2d 66, 73, 298 P.2d 500 (1956)). However, the doctrine does not apply

where “the errors are few and have little or no effect on the outcome of trial.”

State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006). As that is the case

here, reversal is not warranted.

IV. Ineffective Assistance of Counsel (IAC)

Lebeda argues in the alternative that if the court finds there was

prosecutorial misconduct but it was subsequently cured, then counsel was

ineffective for failing to object. The State argues that because a majority of the

challenged conduct was proper, then the IAC claim fails, as Lebeda cannot

demonstrate deficient performance or prejudice. We agree with the State.

For a successful claim of ineffective assistance of counsel, a defendant

must establish both objectively deficient performance and resulting prejudice.

Emery, 174 Wn.2d 754-55. To show deficient performance, the defendant must

show that counsel’s representation fell below an objective standard of

reasonableness in light of all the circumstances. Strickland v. Washington, 466

U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “Courts engage in a

strong presumption counsel’s representation was effective.” State v. McFarland,

127 Wn.2d 322, 335, 899 P.2d 1251 (1995). And, “[d]eficient performance is not

shown by matters that go to trial strategy or tactics.” State v. Hendrickson, 129

Wn.2d 61, 78, 917 P.2d 563 (1996). Further, “[a] few or even several failures to

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No. 87067-0-I/25

object are not usually cause for finding that an attorney’s conduct has fallen

below the objective standard of conduct.” State v. Vazquez, 198 Wn.2d 239, 250,

494 P.3d 424 (2021).

Prejudice requires that “there is a reasonable probability that, except for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” McFarland, 127 Wn.2d at 335. The court need not consider both

deficiency and prejudice if a petitioner fails to prove one. In re Pers. Restraint

of Crace, 174 Wn.2d 835, 847, 280 P.3d 1102 (2012).

Here, Lebeda cannot demonstrate prejudice. As discussed above, any

improper statements by the prosecutor could have been cured with an instruction

and thus, were not prejudicial. As Lebeda cannot prove the prejudice prong of

the Strickland test, his IAC claim fails.

V. Finding of Indigency, DNA Fee & VPA

Lebeda requests that we remand to the trial court to strike the boilerplate

language finding he was not indigent, as it was entered in error, and to strike the

VPA and DNA collection fee because he is indigent. Recent legislative

amendments bar courts from imposing the VPA on indigent defendants, RCW

7.68.035(4), and wholly eliminated the DNA collection fee, RCW 43.43.7541.

These amendments apply to matters pending on direct appeal. State v. Ellis, 27

Wn. App. 2d 1, 16, 530 P.3d 1048 (2023). The State agrees that the VPA and

DNA collection fee should be stricken but claims the request to strike the

boilerplate language finding is moot. As the court’s oral ruling is not reflected

correctly in the judgment and sentence, we remand to the trial court to strike from

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No. 87067-0-I/26

Lebeda’s judgment and sentence the VPA and DNA collection fee, as well as the

language, “After an individualized inquiry on the record, the Court finds that the

Defendant has the current or future ability to pay legal financial obligations;

therefore, the Court imposes the following discretionary LFO’s.”

VI. Statement of Additional Grounds for Review

Lebeda raises two issues in his SAG. First, he alleges further prosecutorial

misconduct concerning a statement made in closing. Second, he argues the trial

court abused its discretion when it did not admit a video statement from Oliveri into

evidence.

First, Lebeda challenges an alleged statement by the prosecutor that La

Fountain and Grace “did not show today, because they were in fear for their

lives.” He further claims that his lawyer objected and the trial court sustained his

objection, instructed the jury to disregard the statement, and requested it be

removed from the record. However, he does not provide citations to the report of

proceedings, and the alleged exchange could not be located in the record on

appeal. RAP 10.10(c) (“[T]he appellate court is not obligated to search the record

in support of claims made in a defendant’s statement of additional grounds for

review.”). This court may either “ ‘decline to address a claimed error when faced

with a material omission in the record’ ” or “simply affirm the challenged decision

if the incomplete record before us is sufficient to support the decision.”

Sisouvanh, 175 Wn.2d at 619 (quoting State v. Wade, 138 Wn.2d 460, 465, 979

P.2d 850 (1999)). As the appellate record does not include the action about

which Lebeda complains, we decline to address it.

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No. 87067-0-I/27

Lebeda’s SAG also claims that the trial court erred when it refused to

enter a video statement from Oliveri into evidence. During pretrial motions,

Lebeda alerted the trial court that he received a video statement from Oliveri

providing an allegedly exculpatory description of what happened in the car on

December 16. He proceeded to explain the efforts he took and continued to take

to contact Oliveri and discuss his testifying. Lebeda claims “Mr. Oliveri’s video

testimony was not allowed by the court, to be entered into evidence. This was

because the prosecutor could not cross examine the witness.” However, because

the record does not indicate that Lebeda made any formal request to admit the

evidence, it is insufficient to allow us to review Lebeda’s argument on this issue.

CONCLUSION

We affirm the convictions. We also remand to the trial court to strike from

Lebeda’s judgment and sentence the DNA fee, the VPA, and the finding that

Lebeda has the current or future ability to pay legal financial obligations.

WE CONCUR:

27