                                                                                                         FILED
                                                                                            COURT t'OF APPEALS
                                                                                               C)!           1SlC    TI

                                                                                           2014 JA W77              N 10: 23
                                                                                                 r   .   .


    IN THE COURT OF APPEALS OF THE STATE OF W                                                                   S IPS .   ON
                                                                                           By_
                                            DIVISION II

STATE OF WASHINGTON,                                                   No. 43247 -1 - II


                                   Respondent;
                                                                 UNPUBLISHED OPINION
         V.



BRUCE ALBERT STEWART,


                                   0

         WORGEN, J. —      A jury convicted Bruce Albert Stewart of second degree assault based on

an attack against Richard Yanac. The State' s case against Stewart relied heavily on inculpatory

statements Stewart made to the investigating officer. Stewart appeals his conviction, alleging

that ( 1) an erroneous jury instruction relieved the State of its burden of proving recklessness

beyond   a reasonable    doubt; ( 2) prosecutorial misconduct infringed on his right to pre -arrest


silence; (    3) insufficient evidence supports his conviction and the admission of his inculpatory

statements; and ( 4) ineffective assistance of counsel deprived him of a fair trial. We affirm.


                                                  FACTS


         In June 2010, Yanac was assaulted in front of the residence of Judy Orr. Deputy Donald

Meserve responded to the assault and saw paramedics loading Yanac into an ambulance in front

of Orr' s house. Meserve asked Yanac what had happened, and Yanac stated that he had been


 jumped,"      but could not recall anything else. Verbatim Report of Proceedings ( VRP) at 104 -05.

Yanac    sustained severe    injuries.
No. 43247 -1 - H



        During his long recovery process, Yanac eventually recalled having seen Stewart outside

Orr' s house shortly before the injury. After Yanac discovered that he had to file a police report

in order to obtain assistance with his medical bills, he contacted police and spoke with Detective


Timothy Keeler.

        Based on his conversations with Yanac, Keeler unsuccessfully attempted to contact

Stewart by telephone. A few months later, Stewart appeared at the prosecutor' s office, where

Keeler arrested him. Keeler took Stewart to a conference room, read him the Miranda'


warnings, and interrogated him. Stewart waived his rights and made the inculpatory statements

described below.


        The prosecutor ultimately charged. Stewart with second degree assault. After a CrR 3. 5

hearing, the trial court determined that Stewart' s statements to Keeler were admissible. A jury

was selected and trial commenced on February 27, 2012.

        At trial, Yanac testified that he remembered arriving at Orr' s house on the day of the

assault and   seeing Stewart   approach   shortly before " the lights   went out."   VRP at 68 -69. He


found himself sitting on the ground when he regained consciousness, saw his smashed cell phone

nearby, and thought he " might have seen" Stewart again. VRP at 69, 82. Yanac then lost

consciousness again, and had no further memory of the events until he awoke on Orr' s couch.

        Yanac admitted that he did not know what caused the injuries or whether Stewart hit him.


Yanac explained that he had suffered from seizures " once or twice every six months or so" since

before the assault. VRP at 75 -76. The seizures caused him to lose consciousness, and he


sometimes could not remember what had happened.




 Miranda v. Arizona, 384 U.S. 436, 86 S. +Ct. 1602, 16 L. Ed. 2d 694 ( 1966).

                                                      2
No. 43247 -1 - II



         Keeler testified that, after initially denying involvement, Stewart eventually admitted that

he had followed Yanac to Orr' s house                and punched     him " about three times," although Stewart


also stated that he did not intend to hurt Yanac so badly. VRP at 96 -97. Stewart claimed he was

angry with Yanac because Yanac had visited Stewart' s girl friend and " made her feel

uncomfortable."              VRP at 97. Stewart stated that, after the assault, he warned Yanac to stay away

from his girl friend. Keeler referred briefly in his testimony to the fact that, prior to his arrest,

Stewart had failed to return a number of Keeler' s calls. The defense did not object.

         Meserve described Yanac' s visible injuries as bruising around the right eye and a large

lump on the left side of the forehead, and the trial court admitted photographs taken at the scene

by another officer. In response to the prosecutor' s questions, Meserve stated that he had asked

Yanac    what        had happened,     and that "[   h] e said he   was   jumped." VRP at 104. The defense did


not object.



         The         court   instructed the jury   on   the elements of second degree   assault: "   A person


commits the crime of assault in the second degree when he or she intentionally assaults another

and   thereby recklessly inflicts         substantial     bodily harm." . Supp. Clerk' s Papers at 43 ( Supp. CP).

The trial court instructed the jury on the definition of "recklessness" for purposes of causing

substantial bodily harm.

          A person is reckless or acts recklessly when he or she knows of and disregards a
          substantial risk that a wrongful act may occur and this disregard is a gross
          deviation from conduct that a reasonable person would exercise in the same
          situation.           Recklessness is also established if a person acts intentionally or
          knowingly.

Supp. CP        at   46; 11 Washington Practice, 'Washington Pattern             Jury Instructions: Criminal 10. 03,

at   150 ( 2d   ed.    1994) ( WPIC). The defense did not object.




                                                                3
No. 43247 -1 - II



           In closing argument, the prosecutor referred to the fact that Stewart had not returned

Keeler' s    calls,   describing     it   as "[   his]   choice."   VRP at 155. The defense did not object.


           The jury returned a guilty verdict, and Stewart timely appealed.

                                                              ANALYSIS


                                  I. THE TRIAL COURT' S RECKLESSNESS INSTRUCTION


           Stewart    contends      that the trial court' s instruction that "[ r] ecklessness also is established if



a person acts intentionally or knowingly" improperly created a mandatory presumption. Br. of

Appellant at 9 -12. He argues that a reasonable juror could have interpreted this instruction to


require finding recklessness as to the infliction of substantial bodily harm upon proof that

Stewart intentionally punched Yanac.

           As a threshold issue, because Stewart did not object to the trial court' s instruction


concerning recklessness, the question arises whether we should even consider the claim. RAP

2.5( a) allows appellate courts to decline to consider issues not properly raised in the trial court,

but provides an exception where a party raises a " manifest error affecting a constitutional right."

The State argues we should not consider Stewart' s claim because the alleged error was not

 manifest."        Br. of Resp' t at 6.

           The test under RAP 2. 5( a) often overlaps with the analysis of the merits of the claimed

error.     See State   v.    Walsh, 143 Wn.2d 1,            8, 17 P. 3d 591 ( 2001) ( in determining whether an error

is   manifest, we " preview[]             the merits of the claimed constitutional error to determine whether the

argument      is   likely   to   succeed ").      Therefore, we evaluate whether the instruction was erroneous,


and   if   so whether       the error     was " manifest."      To fall   within   the exception in RAP 2. 5( a), the


instruction must both be erroneous and manifest.



                                                                     M
No. 43247 -1 - H



         A "misstatement of the law in a jury instruction that relieves the State of its burden to

prove every element of the crime charged" generally requires reversal unless the State shows

beyond a reasonable doubt that the error slid not contribute to the verdict. State v. Thomas, 150

Wn.2d 821, 844 -45, 83 P.3d 970 ( 2004).              A court makes such a misstatement of the law by

giving an instruction which creates " a conclusive or irrebuttable presumption to find an element

of a criminal offense" upon proof of predicate facts. State v. Savage, 94 Wn.2d 569, 573, 618


P. 2d 82 ( 1980). An instruction creates such a presumption if "a reasonable juror might interpret


the   presumption as      mandatory."        State v. Beal, 128 Wn.2d 693, 701, 911 P. 2d 996 ( 1996).

         Our decisions reveal some disagreement as to whether the instruction given, former


WPIC 10. 03,        was erroneous.        Compare State v. Hayward, 152 Wn. App. 632, 645, 217 P.3d 354

 2009) ( finding      error because " the previous version of WPIC 10. 03 ( 1994) did not adequately

follow" the assault statute, as demonstrated in part by the subsequent change in the instruction)

with   State   v.   Holzknecht, 157 Wn.       App. 754,     765, 238 P.3d 1233 ( 2010) ( finding        no error and

noting that "[ c] larification of the standard instruction does not amount to an indictment of earlier


versions ") and       State   v.   Keend, 140 Wn.   App. 858, 868,       166 P. 3d 1268 ( 2007) ( rejecting an


argument identical to Stewart' s on the grounds that the to- convict instruction accurately set out

which mental state applied to the act as opposed to the result, and " the jury is presumed to read

 and   follow] the trial      court' s   instructions as   a whole,   in light   of all other   instructions "). We do


not reach the issue because even if the instruction were erroneous, the nature of the error was not


 manifest" for purposes of RAP 2. 5( a).




                                                               5
No. 43247 -1 - II



             A "manifest"     error results        in " actual   prejudice,"   namely " practical and identifiable

consequences"        at   trial.   State    v.   Gordon, 172 Wn.2d 671, 676, 260 P. 3d 884 ( 2011) ( internal


quotation marks omitted) (                quoting State v. O' Hara, 167 Wn.2d 91, 99, 217 P.3d 756 ( 2009)).

In O' Hara, however, our Supreme Court clarified that " to ensure the actual prejudice and


harmless error analyses are separate, the focus of the actual prejudice must be on whether the

error   is   so obvious on the record that the             error   warrants appellate review."     O' Hara, 167 Wn.2d


at   99 -100. Thus, " to determine whether an error is practical and identifiable, the appellate court


must place itself in the shoes of the trial court to ascertain whether, given what the trial court


knew     at   that time, the court         could have    corrected    the error."   O' Hara, 167 Wn.2d at 100.


             Based on what it knew in February 2012, the trial court would not have had the

opportunity to correct any potential error in the instruction absent a timely objection. Were we

to find it erroneous, we could nonetheless point to no consensus of opinion or controlling

authority establishing the error of the instruction. Nor is it so glaring as to promptly draw the

attention of any legally -
                         trained mind. Thus, for the trial court to properly conclude the

instruction created an impermissible presumption would have required some research and


analysis. It is unreasonable to expect a trial court to engage in that level of inquiry absent a

timely and specific objection. Any potential error was therefore not " manifest" within the

meaning articulated by the O' Hara court, 167 Wn.2d at 100, and we thus decline to consider the
                                      2
issue   under     RAP 2. 5(    a) .




2
     We note that the Hayward court held that the use of former WPIC 10. 03 was a manifest error
affecting a constitutional right. Hayward; 152 Wn. App. at 643 n.4 ( citing State v. Goble, 131
Wn.  App. 194, 202 -03, 126 P. 3d 821 ( 2005)). Hayward, however, was decided before our
Supreme Court clarified RAP 2.5' s use of "manifest" in O' Hara. Following O' Hara, our
analysis concludes that any error in the instruction by the trial court was not manifest under RAP

                                                                     Cei
No. 43247 -1 - II



                 II. PROSECUTORIAL MISCONDUCT AND COMMENT ON PRE -ARREST SILENCE

              Stewart argues that the prosecutor improperly elicited testimony concerning Stewart' s

failure to return Keeler' s calls, and improperly commented on this evidence in closing. Stewart

alleges this prejudiced him by infringing on his Fifth Amendment privilege against self-

incrimination. We disagree.


A.            Standard of Review


              An appellate court will generally reverse a conviction due to prosecutorial misconduct

only if the defendant establishes that the conduct was both improper and prejudicial. State v.

Gregory,        158 Wn.2d 759, 809, 858, 147 P. 3d 1201 ( 2006). We must consider the effect of a


prosecutor' s improper conduct in light of the full trial context: the evidence, issues, and


arguments presented in the case, and the instructions given to the jury. State v. Monday, 171

Wn.2d 667, 675, 257 P. 3d 551 ( 2011) (           citing State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221

 2006)).


              A defendant establishes sufficient prejudice to require reversal only by showing a

substantial likelihood the misconduct affected the verdict. Monday, 171 Wn.2d at 675 ( citing

State    v.    Yates, 161 Wn.2d 714, 774, 168      P. 3d 359 ( 2007)). Furthermore, failure to timely object

to   a prosecutor' s      improper   comment constitutes a waiver, unless         the   remark was "`   so flagrant


and     ill-intentioned that it    evinces an   enduring   and   resulting   prejudice "'   that no curative



instruction       could   have   remedied.   Gregory, 158 Wn.2d at 841 ( quoting State v. Stenson, 132

Wn.2d 668, 719, 940 P. 2d 1239 ( 1997)).            Further, even otherwise improper remarks do not




2. 5(   a).   Thus, for purposes of RAP 2. 5( a) we need not examine further whether it affects a
constitutional right.




                                                            7
No. 43247 -1 - II



require reversal, "   if they were invited or provoked by defense counsel and are in reply to his or

her acts and statements, unless the remarks are not a pertinent reply or are so prejudicial that a

curative   instruction   would   be ineffective." State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747


 1994).


          A prosecutor' s comment on pre -arrest silence violates a defendant' s Fifth Amendment


rights, and we review such misconduct under the constitutional harmless error standard.


Gregory, 158 Wn.2d at 839; State v. Easter, 130 Wn.2d 228, 238 -39, 242, 922 P.2d 1285 ( 1996).

Mere passing reference to pre -arrest silence, however, does not amount to a constitutional

violation, and thus does not merit reversal unless the defendant can show sufficient prejudice


under the usual prosecutorial misconduct standard discussed above. State v. Burke, 163 Wn.2d


204, . 16, 181 P. 3d 1 ( 2008).
     2


B.        Discussion


          The record shows that the prosecutor did not intentionally elicit or dwell on Keeler' s

testimony concerning Stewart' s failure to return calls:

          Q. And what happened when you met with Mr. Stewart?
          A. I let him know that I had previously tried to         contact   him —he hadn' t returned
          my   calls —   and informed him that there was probable cause for his arrest, and I
          arrested him.
          Q. When you arrest someone, that means they get handcuffed, right?

VRP at 90. In this exchange, the prosecutor did not even ask about Stewart' s failure to return


calls; he simply asked what happened when the officer met with Stewart. Without more, this can

hardly be said to be the intentional eliciting of testimony about not returning calls. Further, the

officer' s statement, "   he hadn' t   returned   my   calls" was not even responsive   to the question   posed
No. 43247 -1 - II



by the prosecutor as to what happened when the officer met with Stewart. It was the defendant' s

responsibility to object to a nonresponsive answer of the witness.

          Finally, this testimony qualifies at most as a passing reference to pre -arrest silence. See

Burke, 163 Wn.2d at 216 n.7 ( discussing the distinction between an improper comment on and a

passing   reference   to   pre -arrest silence and   compiling   cases);   State v. Lewis, 130 Wn.2d 700, 703-


04, 707, 927 P.2d 235 ( 1996) ( holding         that a police officer' s testimony that he told the defendant

that " if he was innocent he should just come in and talk to me about it" did not amount to a


comment on silence).         Therefore, because Stewart makes no showing that the prosecutor asked

any improper question or that the passing reference to pre -arrest silence caused prejudice, let

alone that a curative instruction could not have remedied any such prejudice,3 his claim

concerning Keeler' s testimony fails. See Burke, 163 Wn.2d at 221.

          We also find Stewart' s argument concerning the prosecutor' s remarks in closing

unpersuasive. The prosecutor' s statement that Stewart' s failure to " tell the police how he was


involved    with   the injuries to Mr. Yanac until many months had gone            by"   was "[   his] choice,"


VRP 155, also appears to qualify as a passing reference to pre -arrest silence because the

prosecutor mentioned it only once and did not suggest that the jury infer guilt from Stewart' s

lack of cooperation. See Burke, 163 Wn.2d at 216.


          More to the point, a prosecutor may present a fair response to defense counsel' s

arguments and argue that the evidence does not support a defense theory. Russell, 125 Wn.2d at

87. Here, the context makes clear that the prosecutor made the challenged argument in response


3
    Stewart merely    alleges   that "[ b] y calling ...   attention to Mr. Stewart' s failure to come forward
and cooperate in the investigation, the government improperly used his pre -arrest silence to
imply guilt." Br. of Appellant at 23.

                                                            X
No. 43247 -1 - II



to defense counsel' s contention that " recognizing [ that Stewart' s inculpatory] statement is made

eight months        later, it' s   not   exactly the smoking    gun   that the State implies."     Compare VRP at


150 with VRP at 155. Thus, the challenged remark plainly qualifies as a fair response to

argument made by defense counsel.

              Stewart shows neither improper conduct nor resulting prejudice. We thus reject

Stewart' s claim that prosecutorial misconduct deprived him of a fair trial.

                             III. SUFFICIENCY OF t4E EVIDENCE AND CORPUS DELICTI

              Stewart contends that the State failed to present sufficient evidence of causation and


recklessness, two essential components of second degree assault. Stewart first argues that these


alleged deficiencies alone require reversal. He also contends that the alleged evidentiary

deficiencies, combined with the absence of independent evidence that Stewart intentionally

assaulted Yanac, required exclusion of his confession under the corpus delicti rule.


              In evaluating the sufficiency of the evidence, we review the evidence in the light most

favorable to the State. State             v.   Ehrhardt, 167 Wn.     App.   934, 943, 276 P.3d 332 ( 2012) ( citing


State    v.   Drum, 168 Wn.2d 23, 34, 225 P. 3d 237 ( 2010)). We                  ask "`   whether any rational fact

finder    could    have found the         essential elements of   the   crime   beyond     a reasonable   doubt. "' Drum,


168 Wn.2d         at   34 -35 ( quoting State     v.   Wentz, 149 Wn.2d 342, 347, 68 P. 3d 282 ( 2003)). An

appellant who claims that insufficient evidence supports his conviction " admits the truth of the


State'   s evidence and all reasonable             inferences therefrom."       Ehrhardt, 167 Wn. App. at 943

 citing Drum, 168 Wn.2d at 35).

              Where " the inferences and underlying evidence are strong enough to permit a rational

fact finder to find guilt beyond a reasonable doubt, a conviction may be properly based on


                                                                10
No. 43247 -1 - II



pyramiding inferences."           State v. Bencivenga, 137 Wn.2d 703, 711, 974 P. 2d 832 ( 1999)

internal    quotation marks omitted).          Inferences drawn from circumstantial evidence " must be


reasonable and cannot          be based   on speculation."    State v. Vasquez, 178 Wn.2d 1, 16, 309 P.3d

318 ( 2013) ( citing       Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560

 1979)).    A jury may properly infer the mental element of an offense " from the conduct where it

is plainly indicated        as a matter of   logical probability." State v. Delmarter, 94 Wn.2d 634, 638,


618 P.2d 99 ( 1980).


        The corpus delicti rule requires the State to prove every element of the specific crime

charged by evidence independent of the defendant' s statement. State v. Brockob, 159 Wn.2d

311, 329, 150 P. 3d 59 ( 2006); State          v.   Dow, 168 Wn. 2d 243, 254, 227 P. 3d 1278 ( 2010). The


State must present evidence sufficient to establish each element of the crime by logical and

reasonable inferences consistent with guilt and inconsistent with a reasonable hypothesis of


innocence. Brockob, 159 Wn.2d at 327 -28. The independent evidence need only establish a

prima facie case, not " establish the corpus delicti beyond a reasonable doubt, or even by a

preponderance of           the proof."   State v. Meyer, 37 Wn.2d 759, 763 -64, 226 P.2d 204 ( 1951)


 quoted    in State   v.   Aten, 130 Wn.2d 640, 656, 927 P. 2d 210 ( 1996)).     Such a prima facie case,


furthermore, does not require evidence identifying the accused as the perpetrator; the State may

rely on the inculpatory statement itself to prove identity. Meyer, 37 Wn.2d at 763. In

considering whether sufficient evidence supports admission of a confession, we also review the

evidence in the light most favorable to the State. Brockob, 159 Wn.2d at 328.


           To establish the elements of second degree assault, the State had to prove that Stewart


intentionally assaulted Yanac and thereby recklessly inflicted substantial bodily harm. RCW


                                                             11
No. 43247 -1 - II



9A. 36. 021(   a).   Stewart did not raise a corpus delicti objection to the introduction of Keeler' s


testimony about Stewart' s confession and makes no argument that his corpus delicti challenge

may be raised for the first time on appeal under RAP 2.5. Therefore, we consider the corpus

delicti challenge to Stewart' s confession only in the context of Stewart' s claim of ineffective

assistance of counsel.



         Alternatively, were we to reach the corpus delicti issue on its merits, ample evidence
                                                            Meserve4

supports admission of           Stewart'   s confession.                described Yanac' s injuries, including

significant visible injuries to the face and forehead; laid the foundation for the admission of


photos showing those injuries; and testified that, as the paramedics loaded Yanac into the

ambulance, Yanac            stated   he had been " jumped."     Br. of Resp' t at 24. Because significant facial

bruising alone qualifies as substantial bodily harm, this suffices to establish the corpus delicti of

second   degree      assault.    See State    v.   McKtgue, 172 Wn.2d 802, 806, 262 P. 3d 1225 ( 2011); State


v.   Hovig,   149 Wn.       App.     1, 5, 13, 202 P. 3d 318 ( 2009);   State v. Ashcraft, 71 Wn. App. 444, 455,

859 P. 2d 60 ( 1993).         Thus, we conclude Stewart' s confession was properly admitted because the

State proved a prima facie case of second degree assault by independent evidence.

         With Stewart' s confession, the evidence showed that Stewart admitted to Keeler that he


followed Yanac to Orr' s residence and repeatedly punched Yanac because Yanac had made

Stewart' s girl friend feel uncomfortable. The State introduced photographs showing Yanac' s



4 Stewart also did not object to Meserve' s testimony. that Yanac stated he had been jumped.
Under RAP 2. 5(       we review alleged errors not objected to below only if they fall within one of
                      a),

the rule' s listed exceptions. See, e. g., State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 ( 1988).
Stewart makes no claim that the admission of Yanac' s statement about having been jumped falls
within any of these exceptions. Thus, we consider any challenge to that statement only in the
context of Stewart' s claim of ineffective assistance of counsel.



                                                              12
No. 43247 -1 - II



injuries shortly after the incident, including significant facial bruising. Yanac testified that he

saw Stewart approaching shortly before the incident and might have seen Stewart near him

during the events.

         From this evidence, a rational juror could infer that Stewart ( 1) punched Yanac on


purpose, (2) knew of a substantial risk that the punches would cause injuries resulting in

significant        disfigurement     or   impairment of     a   bodily   function, ( 3) disregarded that risk under


circumstances amounting to a gross deviation from the conduct of a reasonable person under the

circumstances, and finally (4) that Stewart' s punches actually did cause such injuries. This

evidence suffices to support Stewart' s conviction.


                                      IV. INEFFECTIVE ASSISTANCE OF COUNSEL


         Stewart alleges that his attorney' s performance was deficient by failing to object to ( 1)

the   admission of        Stewart'   s confession under         the corpus delicti   rule, ( 2)   the admission of police


testimony concerning the victim' s remarks following the assault, and ( 3) the prosecutor' s

reference to evidence of Stewart' s pre -arrest silence in closing. Stewart alleges that these

failures caused him prejudice because these challenges would have succeeded, effectively

excluding evidence essential to the State' s case.

A.           Standard of Review


             To prevail on a claim of ineffective assistance of counsel, an appellant must show


              1)   that   defense    counsel' s        conduct   was     deficient, i.e.,   that it fell below an
             objective     standard       of    reasonableness;     and (   2)   that the deficient performance
             resulted     in   prejudice,that there is a reasonable possibility that, but for the
                                               i.e.,
             deficient conduct, the outcome of the proceeding would have differed.

State   v.   Reichenbach, 153 Wn.2d 126, M, 101 P.3d 80 ( 2004) ( applying                           the test from

Strickland v. Washington, 466 U. S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984)). Thus,


                                                                   13
No. 43247 -1 - II



an appellant who bases an ineffective assistance claim on counsel' s failure to object to the


admission of evidence must show that the trial court would likely have sustained the objection

and that a more favorable outcome would have resulted absent that evidence. State v.

McFarland, 127 Wn.2d 322, 336, 337         n. 4,   899 P. 2d 1251 ( 1995). Furthermore, the appellant


only overcomes the strong presumption that counsel performed adequately by showing that " no

conceivable legitimate tactic" explains the attorney' s conduct. Reichenbach, 153 Wn.2d at 130.

B.       Discussion


         Stewart' s claim regarding the prosecutor' s comment on pre -arrest silence, addressed

above, has no merit. The prosecutor did nothing improper, so the trial court would have

overruled any objection. Furthermore, Stewart cannot show that the remarks had any effect on

the outcome of the trial.


         Without Stewart' s inculpatory statements to Keeler, on the other hand, the State' s case

would likely have collapsed. As discusser) above, however, a challenge to the admission of

Stewart' s inculpatory statements under the corpus delicti rule could only have succeeded without

Meserve' s testimony concerning Yanac' s statement, made shortly after the incident, that he had

been " jumped. "5 This statement, combined with the fact of Yanac' s injuries, gave rise to the




5
    Stewart argues that, without an " explanation as to what Yanac meant by the word `jumped, "'
no evidence establishes an   intentional   assault.    Br.   of   Appellant   at   21.   The claim has no merit.

A standard dictionary reveals that, when used as a transitive verb, the word "jump" commonly
      to attack suddenly or unexpectedly" or " pounce upon." WEBSTER' s TIC NEw
means "

INTERNATIONAL DICTIONARY 1225 ( 2002). Appellate courts presume that jurors understand

words in their ordinary meaning. See Strandberg v. N. Pac. Ry. Co., 59 Wn.2d 259, 263, 367
P.2d 137 ( 1961).


                                                       14
No. 43247 -1 - II


                                                                                          6
reasonable      inference that   someone   had   perpetrated second   degree   assault.       Thus, the merit of


Stewart' s ineffective assistance claim depends on whether defense counsel' s failure to object to


Meserve' s testimony fell below an objective standard of reasonableness.

             The State argues that a hearsay objection to Meserve' s testimony would have been futile

because Yanac' s statement qualifies as an " excited utterance. ,7 Br. of Resp' t at 24. We agree.
Yanac' s statement that he had been " jumped" was made immediately after the assault as

paramedics were loading him into the ambulance. He had suffered severe injuries and was

obviously      under   the stress of this traumatic event at the time he said he was " jumped."           Knowing

the hearsay objection would likely have been overruled, declining to object to this excited

utterance falls within legitimate trial strategy. Stewart' s counsel conceivably made such a

calculation.




             Further, an examination of counsel' s cross examinations and closing argument shows that

the defense strategy aimed to exploit Yanac' s lack of credibility and the weakness of the State' s

evidence concerning causation by implying that Yanac only accused Stewart to get assistance

with medical bills resulting from unrelated injuries.         Raising the corpus delicti rule would likely

have prompted the State to present further testimony establishing that Yanac' s injuries resulted

not from a seizure but from an intentional assault. Such testimony would have undermined the




6 Furthermore, the injuries themselves may have sufficed to establish the corpus delicti. See
State   v.
                          App. 587, 598, 141 P. 3d 92 ( 2006) ( holding that " logical and
             Baxter, 134 Wn.

reasonable inference from the injury itself' established a prima facie case of second degree
assault because that injury was inconsistent with accident or self-infliction).
7 Under Washington evidence law, the rule against hearsay does not exclude 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, or immediately thereafter." ER 803.



                                                         15
No. 43247 -1 - II



defense theory concerning causation. Thus, legitimate strategic considerations, apparent in the

record, justify defense counsel' s conduct.

        Stewart cannot show that defense Counsel' s performance fell below an objective standard


of reasonableness. Stewart' s hypothesized objections would almost certainly have been futile,

and the record reveals that legitimate strategic considerations support trial counsel' s decision not


to pursue them. We therefore reject Stewart' s ineffective assistance claim.


        Affirmed.


        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.



                                                   Y




                                                       B.T,Y,   GEIIXA.
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                                                  16
