STATE v. ORNDORFF (2004)

PART PUBLISHED OPINION

Shawn Orndorff and Ronald Davis appeal their convictions for first degree burglary, second degree assault, second degree child assault, and unlawful possession of firearms.   Orndorff challenges the sufficiency of the evidence to convict him of child assault, arguing, that because he never pointed his gun at the child, the State failed to prove he intended to frighten him.   Davis contends that the trial court denied him the right to impeach the principal victim with evidence of his statement that he was going to “get Orndorff back for turning him in” to the drug task force.   The defendants also raise numerous issues in pro se briefs.   Finding no reversible error, we affirm.

FACTS

On June 27, 2002, 13-year-old E.N. and his older half-brother, B.K., were spending the evening with E.N.'s father, Kenneth Nordby.   E.N. and B.K. were downstairs playing a video game in the living room;  Nordby and Lorina Coble were upstairs visiting with friends.

When B.K. answered a knock at the front door, two men pushed past him, causing him to fall to the floor.   The smaller man wore a black leather jacket and carried a pistol.   The taller man carried a rifle. B.K. screamed because the smaller man had “a pistol right in [his] face.”   III Report of Proceedings (RP) at 263.   E.N. also saw the smaller man point the pistol at B.K. The taller man with the rifle wore a Levi-style jacket and pants and had a “star-spangled banner” bandanna.   III RP at 288.

When Nordby heard B.K. scream, he started down the stairs.   As he descended, Nordby saw a man with an “American flag” bandanna around his face coming up the stairs carrying a .22 rifle.   III RP at 168-69.   Nordby jumped down the stairs, grabbed the rifle, and struggled with the man.   Nordby heard someone screaming that they were going to kill him and he felt a pistol against his neck.   After unsuccessfully wrestling with the two men, Nordby lay face down on the floor as the men commanded.   The taller man asked where Coble was and then hit Nordby in the head with the rifle butt, causing profuse bleeding.   At some point, the taller man pulled the bandanna down from his face and Nordby recognized him as Shawn Orndorff, who had been to his house in the past to sell him musical equipment.   Later, in court, Nordby identified Davis as the smaller man with the pistol.

From the living room, E.N. saw Davis point his pistol at Nordby and heard Orndorff say “[y]ou know what we want, give it now.”   III RP at 289.   Orndorff moved the rifle up and down and E.N. then saw blood coming from Nordby's head.   After ordering E.N. and B.K. to lie on the ground, Orndorff told E.N. “[d]on't worry, no reason to get hurt.”   III RP at 302-04.   Orndorff and Davis left after 911 dispatch returned Coble's aborted call.

Law enforcement officers located Davis in a church parking lot.   With the help of his K-9 police dog, a deputy sheriff found Orndorff hiding in the woods near the church.   A vehicle search yielded a semi-automatic pistol, ammunition for the pistol and a .22 caliber rifle, and an American flag-style bandanna.   The officers never found a rifle.   After police brought them to the church, Nordby, B.K., and E.N. identified Orndorff and Davis as the men who had entered their home.

According to Orndorff, he and Davis drove to the home so he could talk with Nordby.   When he knocked on the door, a young boy opened the door and stepped aside to let them in.   Nordby then attacked Orndorff, injuring his head in the altercation.   Orndorff left the house once police had been summoned;  hiding in the woods because of an outstanding arrest warrant.

The State charged Orndorff and Davis with one count of first degree burglary, three counts of second degree assault, and one count of second degree child assault, each with a firearm allegation, and second degree unlawful possession of a firearm.   Each charge also carried an accomplice allegation.   The State also charged Davis with first degree unlawful possession of a firearm.   The court later dismissed the count charging assault against Coble and the accomplice allegation for Orndorff's unlawful possession of a firearm charge.   The jury convicted Orndorff and Davis of first degree burglary, second degree assault, and second degree child assault and found that they were armed with firearms during the crimes.   The jury also convicted Orndorff and Davis of second and first degree unlawful possession of a firearm, respectively.

ANALYSIS

I. Right to Confrontation

 The trial court allowed Kenneth Nordby to testify that Coble told him she saw a man with a pistol downstairs, saw both men leave, she tried to call 911, and was panic-stricken.   The court admitted this hearsay evidence under the excited utterance exception.   Orndorff contends that admitting this testimony violated his confrontation rights under the Sixth Amendment to the United States Constitution.

Until the Supreme Court decided Crawford v. Washington, 541U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), hearsay statements made by unavailable declarants were admissible if an adequate indicia of reliability existed, i.e., they fell within a firmly rooted hearsay exception or bore a “particularized guarantee [ ] of trustworthiness.”  Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), overruled by Crawford, 541 U.S. 36, 124 S.Ct. at 1371 (2004).   The excited utterance exception is one such “firmly rooted” exception.  State v. Woods, 143 Wash.2d 561, 595, 23 P.3d 1046 (2001).   A statement is an excited utterance and therefore not subject to exclusion on hearsay grounds if it “relat[es] 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).

 In Crawford, the court held that admitting the tape recorded statement the defendant's wife gave to police violated the defendant's Confrontation Clause rights.  Crawford, 541 U.S. at ----, 124 S.Ct. at 1374.   Under Crawford, “[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law ․ as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.”  Crawford, 541U.S. at ----, 124 S.Ct. at 1374.   But if testimonial hearsay evidence is at issue, the Confrontation Clause requires witness unavailability and a prior opportunity for cross-examination.  Crawford, 541 U.S. at ----, 124 S.Ct. at 1374.

Crawford did not comprehensively define “testimonial.”   The court explained that the Confrontation Clause applies to witnesses who “bear testimony” such as “a ‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ”   And this includes “ ‘ex parte in-court testimony or its functional equivalent-that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially.’ ”  Crawford, 541 U.S. at ----, 124 S.Ct. at 1364 (citations omitted).   The term also includes prior testimony at a preliminary hearing, before a grand jury, at a former trial, and police interrogations.  Crawford, 541 U.S. at ----, 124 S.Ct. at 1374.

Coble's excited utterance fits into none of these categories.   It was not a declaration or affirmation made to establish or prove some fact;  it was not prior testimony or a statement given in response to police questioning;  and Coble had no reason to expect that her statement would be used prosecutorially.   Rather, Coble's statement was a spontaneous declaration made in response to the stressful incident she was experiencing.   We hold that Coble's excited utterance was not testimonial and, therefore, not precluded by Crawford's Confrontation Clause analysis.

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

II. Child Assault

Orndorff contends that the State failed to prove that he specifically intended to put E.N. in reasonable apprehension of bodily harm.   The State responds that E.N.'s fear of injury was inspired by the home invasion, the defendants' words, and the presence of firearms, not just the assault on Nordby.

Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.  State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992).  “A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.”  Salinas, 119 Wash.2d at 201, 829 P.2d 1068.   Circumstantial evidence and direct evidence are equally reliable.  State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980).

We do not sort out conflicting evidence, decide which witnesses are credible, or how persuasive the evidence is;  the jury resolves these issues.  State v. Camarillo, 115 Wash.2d 60, 71, 794 P.2d 850 (1990);  State v. Walton, 64 Wash.App. 410, 415-16, 824 P.2d 533 (1992).

A person 18 or older is guilty of second degree child assault if the child is less than 13 and the person commits second degree assault against the child.   RCW 9A.36.130(1)(a).   A person is guilty of second degree assault if, under circumstances not amounting to first degree assault, he assaults another with a deadly weapon.  RCW 9A.36.021(1)(c).

Washington recognizes three types of assault:  (1) an attempt, with unlawful force, to inflict bodily injury upon another, (2) an unlawful touching with criminal intent, and (3) placing another person in reasonable apprehension of harm whether or not the actor intends to inflict or is capable of inflicting that harm.  State v. Wilson, 125 Wash.2d 212, 217-18, 883 P.2d 320 (1994) (citing State v. Bland, 71 Wash.App. 345, 353, 860 P.2d 1046 (1993)).

Assault by placing a person in reasonable apprehension of harm requires the specific intent to create apprehension of harm;  assault by attempting to inflict bodily injury requires the specific intent to cause bodily injury.   State v. Daniels, 87 Wash.App. 149, 155, 940 P.2d 690 (1997) (citing State v. Eastmond, 129 Wash.2d 497, 500, 919 P.2d 577 (1996));  State v. Byrd, 125 Wash.2d 707, 713, 887 P.2d 396 (1995).   But assault by battery requires only the intent to do the physical act constituting the assault.   State v. Hall, 104 Wash.App. 56, 62, 14 P.3d 884 (2000) (citing Daniels, 87 Wash.App. at 155, 940 P.2d 690).

A jury may infer the specific intent to create apprehension of harm if the defendant points a gun at the victim, but not if the defendant merely displays it.  Eastmond, 129 Wash.2d at 500, 919 P.2d 577 (citing State v. Miller, 71 Wash.2d 143, 146, 426 P.2d 986 (1967)). Negligent conduct alone is insufficient;  the State must prove the defendant intended to create in his victim's mind a reasonable apprehension of harm.  State v. Krup, 36 Wash.App. 454, 458, 676 P.2d 507 (1984).

As LaFave and Scott explain:

It is sometimes stated that [assault by placing the victim in fear of harm] is committed by an act (or by an unlawful act) which reasonably causes another to fear immediate bodily harm.   This statement is not quite accurate, however, for one cannot ․ commit a criminal assault by negligently or even recklessly or illegally acting in such a way (as with a gun or a car) as to cause another person to become apprehensive of being struck.   There must be an actual intention to cause apprehension, unless there exists the morally worse intention to cause bodily harm.

Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 82, at 611 (1972).

Neither Orndorff nor Davis pointed a gun at E.N. But E.N. saw Davis point a pistol at his brother and Nordby;  he also saw Orndorff move the rifle up and down and then saw blood coming from Nordby's head.   And although Orndorff told E.N. and B.K., “[d]on't worry, no reason to get hurt,” he also ordered both boys to lie on the floor.   III RP at 302-04.

From this conduct, the jury could infer that Orndorff and Davis intended to place E.N. and the rest of the people inside the home in reasonable apprehension of harm.   In State v. Maurer, 34 Wash.App. 573, 575-76, 663 P.2d 152 (1983), the parents of two child assault victims told the victims that they were going to cut off their hands, sharpened a knife in front of them, split a piece of wood on a chopping block, told them to put their hands on the block, and pushed them directly in front of it.   The court held that these facts were sufficient to create a jury issue, reasoning:

[B]ecause the gravamen of this category of assault is the victim's apprehension which can be induced by overt acts other than the classic thrusting of a knife or pointing of a gun, the nature of a defendant's physical behavior must be considered in light of the apprehension it reasonably can be expected to create.   If there is physical conduct, as opposed to mere threats, which, in the unique circumstances of the incident, are sufficient to induce a reasonable apprehension by the victim that physical injury is imminent, the requirement of an “attempt” is satisfied.

Maurer, 34 Wash.App. at 580, 663 P.2d 152.

Generally, violent acts with a weapon that are not directed at the victim do not amount to second degree assault.  State v. Karp, 69 Wash.App. 369, 375, 848 P.2d 1304 (1993).   But Orndorff directed his threats of violence to E.N. when, while carrying a rifle, he ordered E.N. to lie on the floor.   This was sufficient for the jury to infer that he intended to place E.N. in reasonable apprehension of harm.

III. Evidence of Nordby's Bias

Davis argues that the trial court should have allowed his witness, Deborah Brady, to testify that she overheard Nordby tell Orndorff during a telephone conversation that he was going to get him.   Davis contends that this was admissible to show Nordby's bias toward Orndorff.   We agree, but we find the error harmless.

In an offer of proof, Brady testified that she listened to a phone call between Orndorff and Nordby while Orndorff was incarcerated several months before the home invasion.   According to Brady, Nordby was angry because he thought Orndorff had turned him in to WESTNET 1 and said he “was going to get [Orndorff] back for turning him in.”   IV RP at 461.   Davis offered the evidence to show Nordby's state of mind and motive to lie to the police.   The court excluded the testimony, ruling that Nordby's state of mind was irrelevant to whether or not the assault occurred.

Criminal defendants have a constitutional right to impeach prosecution witnesses with bias evidence.  Davis v. Alaska, 415 U.S. 308, 316-18, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).   And it is reversible error to deny a defendant the right to establish the chief prosecution witness's bias by an independent witness.  State v. Spencer, 111 Wash.App. 401, 408, 45 P.3d 209 (2002), review denied, 148 Wash.2d 1009, 62 P.3d 889 (2003) (citing State v. Jones, 25 Wash.App. 746, 751, 610 P.2d 934 (1980)).   Such errors are presumed prejudicial and require reversal unless no rational jury could have a reasonable doubt that the defendant was guilty even absent the error.   Spencer, 111 Wash.App. at 408, 45 P.3d 209 (citing State v. Johnson, 90 Wash.App. 54, 69, 950 P.2d 981 (1998)).

A prior statement showing a state witness's bias toward the defendant is merely extrinsic evidence of such bias;  not an inconsistent statement.   Spencer, 111 Wash.App. at 410, 45 P.3d 209.   No foundation is required to impeach a witness's testimony with a prior statement as extrinsic evidence of bias.  Spencer, 111 Wash.App. at 409, 45 P.3d 209.   It is sufficient to afford the declarant an opportunity to explain or deny the statement after its introduction.  Spencer, 111 Wash.App. at 410, 45 P.3d 209.

In Spencer, we found reversible error where the trial court rejected the defendant's offer to impeach the State's chief witness with extrinsic evidence of her bias.   The defense witness would have testified that the State's witness said she knew the defendant did not commit the crime, she spoke with the police a second time and changed her story because she was frightened for herself and her child, the police had threatened to call Child Protective Services, she would be taken to jail unless she told police what they wanted to hear, and she was angry because the defendant had another girlfriend (the defense witness).  Spencer, 111 Wash.App. at 409, 45 P.3d 209.

Here, Davis offered Brady's testimony to show Nordby's bias toward Orndorff-his co-participant.   Although the trial court was correct that Nordby's state of mind was irrelevant to whether he was assaulted, Brady's testimony was relevant to show Nordby's alleged bias.   Because the defendants were entitled to impeach Nordby with evidence of bias, the court erred in excluding Brady's testimony.

Although this error is presumed prejudicial, we must still consider whether the error was harmless.   To be harmless, we must be satisfied that, even without the error, no rational jury could have had a reasonable doubt about their guilt.   See Spencer, 111 Wash.App. at 408, 45 P.3d 209.

B.K. testified that Davis and Orndorff barged into Nordby's home, causing him to fall to the floor.   Davis carried a pistol;  Orndorff carried a rifle.   B.K. screamed because he had “a pistol right in [his] face.”   III RP at 263.   B.K. heard Nordby struggling with the men and heard him being hit in the head.

E.N. heard B.K. scream, saw Davis carrying a pistol into the home, and saw him point the pistol at B.K. E.N. also saw Orndorff with a rifle.   Davis pointed the pistol at Nordby;  Orndorff moved the rifle up and down, causing a bloody wound on Nordby's head and said, “You know what we want, give it now.”   III RP at 289.

When the police officers arrived, B.K. was shaken, he and E.N. were frightened and upset, and Nordby was bleeding from a head injury.   Davis had a 9 mm shell in his pocket at the church parking lot.   The officers found Orndorff hiding in the woods.   In the Orndorff-Davis vehicle, police located a semi-automatic pistol and ammunition for the pistol and for a .22 caliber rifle.   Finally, the offered evidence was that Nordby was biased against Orndorff, not Davis.   And although Nordby's claimed bias against Orndorff may have affected his attitude toward Davis, the evidence would have been less persuasive of a concocted story against Davis than Orndorff.   Given the weight of the evidence, we are satisfied that the error in excluding Brady's testimony was harmless beyond a reasonable doubt.

IV. Pro Se Claims

Orndorff and Davis raise numerous issues in a statement of additional grounds for review and a pro se brief.2  Although Orndorff and Davis need not reference the record or cite to legal authorities, they must inform the court of the nature and occurrence of their alleged errors.  RAP 10.10(c).  We are not obligated to search the record in support of their claims.  RAP 10.10(c).

A. Speedy Trial and Severance Claims

Orndorff contends that his speedy trial rights were violated and that his trial should have been severed from Davis's.   The basis of his claim appears to be that Davis's lengthy criminal history “put a dark shadow over the jury and the court” and denied him a fair trial.   Statement of Additional Grounds (SAG) at 12.   Orndorff provides no indication of how or why his speedy trial rights were violated.   Nor does he identify any reference to Davis's criminal history.   Davis's stipulation to a prior conviction for purposes of his unlawful possession of a firearm charge appears to be the only mention of his criminal history at trial.   But Orndorff provides no argument on how this might have influenced the judge or jury.   We reject this claim.

B. Second Degree Assault of B.K.

Orndorff and Davis contend that the evidence was insufficient to convict them of second degree assault against B.K.

A person commits second degree assault if, under circumstances not amounting to first degree assault, he assaults another with a deadly weapon.  RCW 9A.36.021(1)(c).  A person is guilty of a crime if another person for whom he is legally accountable commits the crime.  RCW 9A.08.020(1).   One is legally accountable for another's conduct when “[h]e is an accomplice of such other person in the commission of the crime.”  RCW 9A.08.020(2)(c).  A person is an accomplice if with knowledge that it will promote or facilitate the commission of the crime, he solicits, commands, encourages, or requests such other person to commit it;  or aids or agrees to aid such other person in planning or committing it.  RCW 9A.08.020(3)(a)(i), (ii).

Here, Orndorff and Davis pushed past B.K. to enter the house where they assaulted Nordby.   B.K. testified that Davis pointed a pistol at him, and that he screamed because there was “a pistol right in my face.”   III RP at 262-63.   Accordingly, substantial evidence supports Davis's conviction as the principal and Orndorff's conviction as an accomplice for second degree assault of B.K.

C. Second Degree Unlawful Possession of a Firearm

Orndorff argues that there is insufficient evidence to convict him of second degree unlawful possession of a firearm.   Nordby, B.K., and E.N. all testified that both Orndorff and Davis were armed.   And Orndorff stipulated to a prior felony conviction.   Accordingly, sufficient evidence supports his conviction for this crime.   See RCW 9.41.040(1)(b)(i).

D. Ineffective Assistance of Counsel

Orndorff maintains that his counsel was ineffective and “totally ignored, completely disregarded, all of my rights” under the Sixth Amendment.   SAG at 15.   The crux of Orndorff's argument appears to be his attorney's advice that he stipulate to his prior convictions.

To show ineffective assistance of counsel, an appellant must show that (1) counsel's performance was deficient;  and (2) that the deficient performance prejudiced him.  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);  State v. Thomas, 109 Wash.2d 222, 225-26, 743 P.2d 816 (1987).   Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness.  State v. Stenson, 132 Wash.2d 668, 705-06, 940 P.2d 1239 (1997) (citing State v. Brett, 126 Wash.2d 136, 198-99, 892 P.2d 29 (1995)).   Prejudice occurs if, but for the deficient performance, there is a reasonable probability that the outcome would have differed.  In re Pers. Restraint of Pirtle, 136 Wash.2d 467, 487, 965 P.2d 593 (1998) (citing In re Pers. Restraint of Rice, 118 Wash.2d 876, 888, 828 P.2d 1086 (1992)). We give considerable deference to counsel's performance and we begin our analysis with a strong presumption that counsel was effective.  Strickland, 466 U.S. at 689-90, 104 S.Ct. 2052;  State v. McFarland, 127 Wash.2d 322, 335, 899 P.2d 1251 (1995) (citing Brett, 126 Wash.2d at 198, 892 P.2d 29).   If trial counsel's conduct can be characterized as legitimate trial strategy or tactics, it cannot be the basis for an ineffective assistance claim.  State v. McNeal, 145 Wash.2d 352, 362, 37 P.3d 280 (2002) (citing State v. Adams, 91 Wash.2d 86, 90, 586 P.2d 1168 (1978)).

Orndorff stipulated to his prior felony eluding convictions and testified to them at trial.   In its sentencing memorandum, the State produced a certified copy of these convictions.   Because the State could have proved these convictions at trial, Orndorff's stipulation was legitimate strategy;  accordingly, he cannot show ineffective assistance.

E. Lesser Included Offense Instruction

Orndorff contends that the trial court should have given his proposed lesser included offense instruction on first degree criminal trespass.   The State concedes that Workman's3 first prong is satisfied, but argues the evidence does not support an inference that Orndorff and Davis committed only first degree criminal trespass.   Moreover, as the State points out, Orndorff did not request a lesser included offense instruction on criminal trespass.

Lesser included offense instructions are not required if not requested.   State v. Alferez, 37 Wash.App. 508, 512, 681 P.2d 859 (1984).   Because Orndorff did not ask for a lesser included offense instruction on first degree criminal trespass, he cannot raise the issue on appeal.  State v. Mounsey, 31 Wash.App. 511, 518, 643 P.2d 892 (1982).   But even if Orndorff had requested the instruction, he was not entitled to it.

A defendant is entitled to an instruction on a lesser included offense if:  (1) each of the elements of the lesser offense is a necessary element of the crime charged and (2) the evidence supports an inference that the lesser crime was committed.  State v. Workman, 90 Wash.2d 443, 447-48, 584 P.2d 382 (1978).   To satisfy Workman's factual prong, the evidence must support a finding that the defendant committed only the lesser crime.  State v. Brown, 127 Wash.2d 749, 754, 903 P.2d 459 (1995) (citing State v. Fowler, 114 Wash.2d 59, 67, 785 P.2d 808 (1990)).

Under RCW 9A.52.070(1), “[a] person is guilty of criminal trespass in the first degree if he knowingly enters or remains unlawfully in a building.”   In contrast, a person is guilty of first degree burglary if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a building and if, in entering or while in the building or in immediate flight from it, he or another participant in the crime (a) is armed with a deadly weapon, or (b) assaults any person.  RCW 9A.52.020(1).   From the evidence, there can be no inference that Orndorff committed only first degree criminal trespass.

F. Accomplice Liability Instruction 4

Orndorff argues that the jury convicted him under erroneous jury instructions and verdict forms and therefore it is unclear whether the jury convicted him as a principal or under a legally deficient accomplice liability theory.   Orndorff appears to argue the jury had to be unanimous that he was a principal or accomplice in each crime.   The State replies that Orndorff waived this issue by failing to object and that the argument lacks merit.

But “principal and accomplice liability are not alternative means of committing a single offense.”  State v. McDonald, 138 Wash.2d 680, 687, 981 P.2d 443 (1999).   The McDonald court held because there was substantial evidence of the defendant's accomplice liability, the evidence need not also support principal liability.  McDonald, 138 Wash.2d at 686-87, 981 P.2d 443.   Here, substantial evidence shows that Orndorff acted as Davis's accomplice in the assault on B.K., was the principal in the assault of Nordby, and was a principal in the burglary, we reject Orndorff's challenge to the instructions.

Orndorff's reliance on language in State v. Jackson, 137 Wash.2d 712, 727, 976 P.2d 1229 (1999) is misplaced.5  In Jackson, the court reversed the defendants' convictions because the accomplice liability instruction relieved the State of its burden of proof on an essential element.   The instruction allowed the jury to find the defendants, or either of them, guilty as accomplices to felony murder because they failed to protect their foster child.  Jackson, 137 Wash.2d at 727, 976 P.2d 1229.   But the result in Jackson hinged on the court's conclusion that accomplice liability in Washington did not extend to a failure to act.   See Jackson, 137 Wash.2d at 719-26, 976 P.2d 1229.

G. Prosecutorial Misconduct

Orndorff seeks reversal on the grounds of prosecutorial misconduct, apparently claiming that the prosecutor initiated charges against him in the absence of probable cause.   Orndorff cites only his trial counsel's statement renewing his motion to dismiss the assault charges relating to Coble and E.N. The trial court dismissed the Coble assault charge and we have found the evidence sufficient to support the E.N. assault charge.   We reject his argument.

H. Jury Question

Orndorff argues that the trial court's failure to answer a juror note violated his federal constitutional rights.   He complains of an incident the trial judge reported after discussing instructions with the attorneys:

THE COURT:  I got a note from a juror this morning and I forgot to tell you before your last witness.   Juror number 6, “If a witness is answering a question and an objection is made over relevance or whatever and it is sustained, is that/the previous (immediately before the objection) stricken, or is it only if the judge states ‘Jury must disregard’?   I am taking notes.   If I write it, should I scratch it out or not?   Just wanted to clarify for myself.”   If I sustain it and don't strike it-

DEFENSE COUNSEL:  Well-

THE COURT:  I have given an instruction in my opening.

DEFENSE COUNSEL:  You have given an instruction on that.

THE COURT:  I just wanted to let you know that came from juror number 6. If somebody wants to work it into their closing argument, they can.   I was just advising you all of that inquiry from juror number 6.

V RP at 633.

The court's opening instructions to the jury provided, “[y]ou will disregard any evidence that either was not admitted or that was stricken by the court.”   CP at 315.   Thus, the court properly instructed the jury how to deal with evidence not admitted and neither counsel asked for further instructions when the court advised them of the juror's note.   We find no error.

I. Offender Score

Orndorff contends that the trial court erred when it failed to independently consider whether two prior felony convictions for attempted eluding constituted the same criminal conduct in calculating his offender score.   The State responds that the court had no duty to consider this issue sua sponte because Orndorff's counsel agreed with the State's calculation of Orndorff's offender score.   Orndorff relies on State v. Reinhart, 77 Wash.App. 454, 459, 891 P.2d 735 (1995); 6  the State relies on State v. Nitsch, 100 Wash.App. 512, 522, 997 P.2d 1000 (2000), which concerned current convictions.

RCW 9.94A.525(5)(a)(i) provides, “[t]he current sentencing court shall determine with respect to other prior adult offenses for which sentences were served concurrently ․ whether those offenses shall be counted as one offense or as separate offenses using the ‘same criminal conduct’ analysis found in * RCW 9.94A.589(1)(a).”   Under RCW 9.94A.589(1)(a) “same criminal conduct” means “two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim.”   Because the two attempted eludes occurred on different days, they are not the same criminal conduct.   See State v. Channon, 105 Wash.App. 869, 877-78, 20 P.3d 476 (2001).

J. Additional Claimed Errors

Orndorff maintains that the cumulative effect of other claimed errors entitles him to a new trial or an evidentiary hearing.   These claimed errors are based primarily on a number of statements the prosecutor made during opening and closing arguments:

[T]o take what you think is owed to you․ “I want my money and I want it right now.”

․

They wanted to commit a crime.

․

It's obvious Mr. Orndorff was angry that night.

․

Mr. Nordby is talking on the phone to 911 and telling them, “[t]here are men with guns in my house and they are trying to kill me.”

․

And what an amazing coincidence that in the same car that Mr. Orndorff had just evacuated, the same as Mr. Orndorff had been seen in by three different people with a rifle, would be the ammunition that would be appropriate to load that weapon.

V RP at 637, 644, 645, 647.

Orndorff did not object to any of the prosecutor's statements at trial. 7

Prosecutorial misconduct requires a showing that the prosecutor's conduct was both improper and prejudicial.  State v. Hughes, 118 Wash.App. 713, 727, 77 P.3d 681 (2003) (citing Stenson, 132 Wash.2d at 718, 940 P.2d 1239).   The defendant bears the burden of proving misconduct and prejudice.  Hughes, 118 Wash.App. at 727, 77 P.3d 681.   We review the prosecutor's allegedly improper statements during argument within the context of the prosecutor's entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions.  State v. Dhaliwal, 150 Wash.2d 559, 578, 79 P.3d 432 (2003) (citing State v. Brown, 132 Wash.2d 529, 561, 940 P.2d 546 (1997)).   A defendant's failure to object to a prosecutor's improper remark waives the error, unless the remark is so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.  Stenson, 132 Wash.2d at 719, 940 P.2d 1239 (citing State v. Gentry, 125 Wash.2d 570, 596, 888 P.2d 1105 (1995)).   Orndorff has not shown how or why the prosecutor's remarks were improper, but even assuming they were, he has waived this issue because the remarks are not so flagrant and ill-intentioned that an instruction could not have cured them.

Affirmed.

FOOTNOTES

FN1. “WESTNET” is an acronym for West Sound Narcotics Enforcement Team..  FN1. “WESTNET” is an acronym for West Sound Narcotics Enforcement Team.

FN2.  Orndorff has also filed a Statement of Additional Authorities, but the cited authorities do not apply..  FN2.  Orndorff has also filed a Statement of Additional Authorities, but the cited authorities do not apply.

FN3. State v. Workman, 90 Wash.2d 443, 584 P.2d 382 (1978)..  FN3. State v. Workman, 90 Wash.2d 443, 584 P.2d 382 (1978).

FN4.  The court gave the following accomplice instruction:A person is an accomplice in the commission of the crime of Burglary in the First Degree, Assault in the Second Degree and Assault of a Child in the Second Degree as charged in Counts I, II, IV and V if, with knowledge that it will promote or facilitate the commission of the crime of Burglary in the First Degree, Assault in the Second Degree and Assault of a Child in the Second Degree as charged in Counts I, II, IV and V, he or she either:(1) solicits, commands, encourages, or requests another person to commit the crime of Burglary in the First Degree, Assault in the Second Degree and Assault of a Child in the Second Degree as charged in Counts I, II, IV and V;  or(2) aids or agrees to aid another person in planning or committing the crime of Burglary in the First Degree, Assault in the Second Degree and Assault of a Child in the Second Degree as charged in Counts I, II, IV and V.The word “aid” means all assistance whether given by words, acts encouragement, support, or presence.   A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime.   However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice.Clerk's Papers (CP) at 325..  FN4.  The court gave the following accomplice instruction:A person is an accomplice in the commission of the crime of Burglary in the First Degree, Assault in the Second Degree and Assault of a Child in the Second Degree as charged in Counts I, II, IV and V if, with knowledge that it will promote or facilitate the commission of the crime of Burglary in the First Degree, Assault in the Second Degree and Assault of a Child in the Second Degree as charged in Counts I, II, IV and V, he or she either:(1) solicits, commands, encourages, or requests another person to commit the crime of Burglary in the First Degree, Assault in the Second Degree and Assault of a Child in the Second Degree as charged in Counts I, II, IV and V;  or(2) aids or agrees to aid another person in planning or committing the crime of Burglary in the First Degree, Assault in the Second Degree and Assault of a Child in the Second Degree as charged in Counts I, II, IV and V.The word “aid” means all assistance whether given by words, acts encouragement, support, or presence.   A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime.   However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice.Clerk's Papers (CP) at 325.

FN5.  The following language in Orndorff's SAG is taken from Jackson:  “because the special interrogatory forms that were used by the jury in rendering it's [sic] verdict. [sic] Do [sic] not indicate whether the jury found the defendant guilty as a principle [sic] or as an accomplice.”   SAG at 17;  Jackson, 137 Wash.2d at 727, 976 P.2d 1229..  FN5.  The following language in Orndorff's SAG is taken from Jackson:  “because the special interrogatory forms that were used by the jury in rendering it's [sic] verdict. [sic] Do [sic] not indicate whether the jury found the defendant guilty as a principle [sic] or as an accomplice.”   SAG at 17;  Jackson, 137 Wash.2d at 727, 976 P.2d 1229.

FN6.  Orndorff improperly cites State v. Dowling, 97 Wash.App. 1062 (1999), an unpublished opinion.  RAP 10.4(h)..  FN6.  Orndorff improperly cites State v. Dowling, 97 Wash.App. 1062 (1999), an unpublished opinion.  RAP 10.4(h).

FN7.  The only objections to the prosecutor's statements occurred during rebuttal closing and were made by Davis's attorney..  FN7.  The only objections to the prosecutor's statements occurred during rebuttal closing and were made by Davis's attorney.

ARMSTRONG, J.