State Of Washington, Respondent V Joseph Michael Donnette-Sherman, Appellant (Majority)

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Filed Washington State Court of Appeals Division Two October 25, 2016 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 47602-9-II Respondent, v. JOSEPH MICHAEL DONNETTESHERMAN, UNPUBLISHED OPINION Appellant. JOHANSON, J. — Joseph Michael Donnette-Sherman appeals his jury trial conviction for second degree assault and his deadly weapon sentencing enhancement. He argues that (1) he received ineffective assistance of counsel when his trial counsel failed to object to the prosecutor’s improper closing argument and (2) the trial court violated his right to a public trial when it considered for-cause challenges in a sidebar during jury selection. He also raises several additional claims in a pro se statement of additional grounds for review1 (SAG). Because Donnette-Sherman does not establish ineffective assistance of counsel based on defense counsel’s failure to object to the State’s closing argument and does not show that the courtroom was closed, and because his SAG claims either fail or cannot be addressed, we affirm. 1 RAP 10.10. No. 47602-9-II FACTS I. BACKGROUND On the evening of August 4, 2013, Bruce Boyles went outside to check on his barking dog. The dog was leashed to a 20-foot steel cable in Boyles’s front yard. As he approached the dog, Boyles saw his neighbor, Donnette-Sherman, approaching the dog with a machete in his hand. According to Boyles, Donnette-Sherman grabbed the dog’s cable and “was reeling back with the machete.” 1 Report of Proceedings (RP) at 82. Boyles told Donnette-Sherman to get away from the dog and said he (Boyles) was calling the police and taking pictures. Donnette-Sherman stopped, looked up at Boyles, let go of the cable, approached Boyles, and swung the machete at him. Boyles moved his hand to block the machete, and the machete hit the phone and Boyles’s thumb. The machete made a “deep cut in the phone” and made a small cut to Boyles’s thumb. 1 RP at 92. Before dropping the phone, Boyles was able to take photographs of Donnette-Sherman with the machete. According to Boyles, after the first strike, Donnette-Sherman “reeled back with the machete again like he was going to swing it at [Boyles’s] throat.” 1 RP at 85. Donnette-Sherman did not, however, strike again. Instead, he turned around and went home. Both Donnette-Sherman and Boyles called 911. When a deputy questioned Donnette-Sherman at home, he told the deputy that he had gone over to Boyles’s house to free the dog, who was chained and constantly barking. DonnetteSherman stated that he was tired of the dog’s barking, thought the dog was being abused, and was attempting to cut the dog’s tether. He further stated that he thought Boyles had a weapon in his hand and that he (Donnette-Sherman) had approached and swung the machete at Boyles to disarm 2 No. 47602-9-II him. When describing what Boyles had done, Donnette-Sherman gestured with his hands in a manner the deputy later described as being similar to someone “holding a camera, taking pictures.” 1 RP at 57. Donnette-Sherman gave the machete to the deputy, and the deputy photographed it and took it into evidence. II. PROCEDURE The State charged Donnette-Sherman with second degree assault with a deadly weapon2 with a deadly weapon sentencing enhancement. The case was tried by a jury. A. JURY SELECTION During voir dire, after counsel finished questioning the venire, the trial court considered the parties’ motions to exclude jurors for cause in a sidebar. The venire remained in the courtroom, and there is nothing in the record suggesting that the courtroom was closed to the public at this time. Following the sidebar, the trial court selected the jurors. The trial court and counsel then described the sidebar in detail for the record, noting which jurors had been challenged for cause, which had been excused for cause, which party had moved to excuse the juror for cause, the other party’s response, and the reason each juror was excused. B. EVIDENCE Boyles and a deputy who responded to the 911 calls testified for the State. Their testimony was consistent with the facts set out above. Donnette-Sherman did not present any evidence. 2 RCW 9A.36.021(1)(c). 3 No. 47602-9-II During the trial, the trial court admitted several photographs of the machete taken by the deputy, the photographs of Donnette-Sherman with the machete that Boyles took with his cell phone, and the machete that Donnette-Sherman gave the deputy. Defense counsel did not object to any of these exhibits. The machete’s blade was 22 inches long; the entire machete was 27 inches long. C. CLOSING ARGUMENT During closing argument, the prosecutor argued, Now I want to talk a little bit about self-defense, because that’s what I believe the defense will be in this case, and you have been instructed on selfdefense, and I submit to you that there is no, none whatsoever, evidence that the force that [Donnette-Sherman] used on this date was justified or lawful. Instruction No. 13, I have only got part of it up here. I will go through some parts of it. These are excerpts from Instruction No. 13, “The use of the force upon or towards a person is lawful when used by a person that reasonably believes that he is about to be injured in preventing or attempting to prevent an offense against a person and when the force is no more than necessary.” So in this case, you might want to ask yourself in deliberation, what evidence is there that would create in [Donnette-Sherman] the idea that he was about to be injured, that his injury was imminent? The only evidence you have is what [Donnette-Sherman] told the officer when the officer went to talk to him about this incident, and he said he thought Mr. Boyles was holding a weapon, and he demonstrated how Mr. Boyles was holding the weapon, and he held his hands out like this, like somebody holding a camera, not like somebody holding a weapon. And Dep. Brooks didn’t know any kind of weapon that would be held in the way a camera was held, and this is accurate as far as how Mr. Boyles testified he was holding the camera. He held out the camera or the phone, which was taking pictures, and that can in no way be construed as threatening or in no way can that be construed as justifying the force that [Donnette-Sherman] then used. That force can be no more than is necessarily [sic]. If you are going to go down that road to explore self-defense, ask yourselves, what would be necessary in those circumstances to [DonnetteSherman], in the circumstances known to him at that time, what force was necessary? And I submit to you that absolutely no force was necessary or justified. He didn’t have to continue towards Mr. Boyles. He was on Mr. Boyles’ property. He had no legitimate business being there. He was told, I am recording this, I’m getting 4 No. 47602-9-II all of this. He wasn’t threatened. He was told -- unless he is being threatened with accountability by being photographed -- but he is told, I’m getting all of this. To construe that as some sort of a threat where force was necessary to defend himself, there just isn’t any -- there just isn’t any evidence of that. What avenues did he have? Even if you do go down that road and think, well, maybe he did think -- maybe he thought this phone was some sort of a weapon, what were his options at that point? He could have gone -- according to the testimony of both the officer and Mr. Boyles, there was nothing to prevent him from turning and walking away, turning and running away, from going in any other direction. But he chose to go straight in the direction of Mr. Boyles with the machete and struck towards Mr. Boyles. So I would ask you to find that the defense was there was no situation where [Donnette-Sherman] would be prudent or reasonable in using that force. Again, Mr. Boyles was on his own property. He was holding an object as if someone would be holding a phone, not a weapon, not a knife, nothing like that. He was stating -- and he didn’t yell -- he stated he was taking pictures, and [Donnette-Sherman] responded when he said that. It was clear to Mr. Boyles that [Donnette-Sherman] heard him. He had many other avenues. He could leave the scene. He did not have to go towards Mr. Boyles with that machete. Given that evidence, there was no reasonable belief, no reasonable person would have the belief that they were about to be injured, and the force was much more than necessary to attack him with a machete when he had other options. 1 RP at 167-70. The jury found Donnette-Sherman guilty of second degree assault with a deadly weapon and found by special verdict that he had been armed with a deadly weapon at the time of the crime. Donnette-Sherman appeals. ANALYSIS I. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM Donnette-Sherman first argues that defense counsel provided ineffective assistance of counsel when he failed to object to alleged prosecutorial misconduct in closing argument. Specifically, Donnette-Sherman asserts that defense counsel should have objected when the prosecutor “impl[ied] during argument that the jury need not consider the issue of self-defense if 5 No. 47602-9-II it excludes Donnette-Sherman’s statements to Deputy Brooks.” Br. of Appellant at 7. We disagree with Donnette-Sherman’s characterization of the prosecutor’s argument, and we conclude that his counsel was not ineffective when he failed to object to the prosecutor’s closing argument. A. LEGAL PRINCIPLES To prevail on his ineffective assistance of counsel claim, Donnette-Sherman must show both deficient performance and resulting prejudice; failure to show either prong defeats this claim. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). To establish deficient performance, Donnette-Sherman must show that defense counsel’s performance fell below an objective standard of reasonableness. McNeal, 145 Wn.2d at 362 (citing Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). We review an ineffective assistance claim de novo, beginning with a strong presumption that defense counsel’s performance was adequate and reasonable and giving exceptional deference when evaluating counsel’s strategic decisions. McNeal, 145 Wn.2d at 362. B. NO DEFICIENT PERFORMANCE Donnette-Sherman challenges the following portions of the prosecutor’s closing argument: Now I want to talk a little bit about self-defense, because that’s what I believe the defense will be in this case, and you have been instructed on selfdefense, and I submit to you that there is no, none whatsoever, evidence that the force that [Donnette-Sherman] used on this date was justified or lawful. .... The only evidence you have is what [Donnette-Sherman] told the officer when the officer went to talk to him about this incident, and he said he thought Mr. Boyles was holding a weapon, and he demonstrated how Mr. Boyles was holding the weapon, and he held his hands out like this, like somebody holding a camera, not like somebody holding a weapon. 1 RP at 167-68 (emphasis added). Read in context, this argument does not support DonnetteSherman’s ineffective assistance of counsel claim. 6 No. 47602-9-II Although a prosecutor may not comment on the lack of defense evidence when a defendant asserts self-defense because the defendant has no duty to present evidence, merely mentioning that there is not sufficient evidence to support the defense is not improper. State v. Thorgerson, 172 Wn.2d 438, 453, 258 P.3d 43 (2011); State v. Jackson, 150 Wn. App. 877, 885-86, 209 P.3d 553 (2009). And the prosecutor is entitled to point out lack of evidentiary support for the defendant’s theory of the case. State v. Killingsworth, 166 Wn. App. 283, 291-92, 269 P.3d 1064 (2012). Taken in context, this is what the prosecutor did—he argued that the evidence did not support the defense. Therefore, the prosecutor’s comments were not improper. And defense counsel’s failure to object to comments that are not improper does not fall below an objective standard of reasonableness. Accordingly, Donnette-Sherman fails to establish ineffective assistance of defense counsel for failing to object to this argument. II. PUBLIC TRIAL Donnette-Sherman next argues that the trial court violated his public trial right by addressing for-cause challenges to potential jurors in a sidebar without first considering the factors set forth in State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995). Following our Supreme Court’s decision in State v. Love, 183 Wn.2d 598, 354 P.3d 841 (2015), cert. denied, 136 S. Ct. 1524 (2016), we disagree that a closure took place here and hold that the trial court did not violate Donnette-Sherman’s public trial right. In Love, our Supreme Court held that the defendant’s public trial right was not violated by the exercise of for-cause challenges at the bench because no courtroom closure had occurred. 183 Wn.2d at 606. In so holding, our Supreme Court reasoned, [T]he public had ample opportunity to oversee the selection of Love’s jury because no portion of the process was concealed from the public; no juror was questioned 7 No. 47602-9-II in chambers. To the contrary, observers could watch the trial judge and counsel ask questions of potential jurors, listen to the answers to those questions, see counsel exercise challenges at the bench and on paper, and ultimately evaluate the empaneled jury. The transcript of the discussion about for cause challenges and the struck juror sheet showing the peremptory challenges are both publically available. The public was present for and could scrutinize the selection of Love’s jury from start to finish, affording him the safeguards of the public trial right missing in cases where we found closures of jury section. Love, 183 Wn.2d at 607. Here, as in Love, the public was able to (1) observe the questioning of jurors, (2) listen to the jurors’ answers, (3) visually observe counsel exercise their for-cause challenges at the bench, and (4) evaluate the composition of the empaneled jury. 183 Wn.2d at 607. Although it does not appear that the sidebar was transcribed by a court reporter, the trial court summarized the sidebar in detail on the record and allowed both parties the opportunity to comment on and add to this summary, unlike State v. Effinger, 194 Wn. App. 554, 562, 375 P.3d 701 (2016). The trial court’s summary described which jurors had been excused for cause, which party had moved to excuse the juror for cause, the other party’s response, and the detailed reasons each juror was excused. This summary permitted the public to scrutinize the process in much the same manner as a verbatim transcription of the arguments would have allowed. See State v. Anderson, 194 Wn. App. 547, 552-53, 377 P.3d 278 (2016) (holding that there was no closure when the proceedings were held in open court and the trial court described the results of the sidebar on the record). Accordingly, we hold that no closure occurred here and, thus, Donnette-Sherman’s public trial right was not violated. 8 No. 47602-9-II III. SAG ISSUES Donnette-Sherman has also filed a pro se SAG raising several additional issues.3 These issues either fail or we do not reach them. A. CHARGING DOCUMENT CLAIMS Donnette-Sherman contends that the information was “ambiguous and does not accurately depict the law” because Washington law does not define a machete as a deadly weapon. SAG at 2. We disagree. A charging document must allege each essential element of the crime to notify the accused of the nature of the allegation so that he can properly prepare a defense. State v. Kjorsvik, 117 Wn.2d 93, 98, 812 P.2d 86 (1991). But a charging document need only allege “‘[a]ll essential elements of a crime’” so as to give the defendant notice of the charges and allow the defendant to prepare a defense; it is not required to allege facts beyond those sufficient to support the elements of the crime charged or to state the facts with particularity. State v. Winings, 126 Wn. App. 75, 84, 107 P.3d 141 (2005) (quoting State v. Tresenriter, 101 Wn. App. 486, 491, 4 P.3d 145, 14 P.3d 788 (2000)). Here, the information stated, In that the defendant, JOSEPH MICHAEL DONNETTE-SHERMAN, in the State of Washington, on or about August 4, 2013, did intentionally assault Bruce Alan 3 Donnette-Sherman appears to have attached to his SAG a variety of materials, but he fails to make reasoned argument based on these materials. Therefore, we do not consider them. He has also attached what appears to be two motions—a motion requesting discovery and a motion to supplement the record—directed to this court. But these motions are not properly before us. We do not address motions that are filed in briefs unless they comply with RAP 17.4(d). These motions do not comply with RAP 17.4(d) because these motions would not preclude hearing the case on the merits if granted. Thus, they are not properly before us and we do not consider them. RAP 17.4(d). 9 No. 47602-9-II Boyles with a deadly weapon. It is further alleged that during the commission of this offense, the defendant or an accomplice was armed with a deadly weapon, towit: a machete. Clerk’s Papers (CP) at 2 (emphasis added). This information contains all of the essential elements of the crime; the precise nature of the weapon used is not an element of the offense. See Winings, 126 Wn. App. at 86 (information alleging defendant assaulted another with a deadly weapon was sufficient even though it did not specify the weapon used or the manner in which the defendant used the weapon). Accordingly, Donnette-Sherman has not shown that the charging document was inadequate. Donnette-Sherman may also be asserting that by mentioning the machete, an object that may be classified as a deadly weapon only under certain circumstances, 4 the information was vague. We distinguish between charging documents that are constitutionally deficient (those that fail to allege sufficient facts supporting each element of the crime charged) and those that are merely vague. State v. Leach, 113 Wn.2d 679, 686-87, 782 P.2d 552 (1989). A charging document that states each statutory element of a crime, but is vague as to some other significant matter, may be corrected under a bill of particulars. Leach, 113 Wn.2d at 687. A defendant may not challenge a charging document for “vagueness” on appeal if he or she failed to request a bill of particulars at trial. Leach, 113 Wn.2d at 687. There is nothing in the record suggesting that DonnetteSherman requested a bill of particulars. Thus, this claim fails. 4 See RCW 9A.04.110(6). 10 No. 47602-9-II B. JURY INSTRUCTION CLAIMS Donnette-Sherman next challenges several jury instructions.5 We review de novo alleged errors of law in jury instructions. State v. Barnes, 153 Wn.2d 378, 382, 103 P.3d 1219 (2005). Donnette-Sherman first claims that jury instructions 6 and 11 were improper because they omitted the term “intentional,” which is an element of second degree assault. Jury instruction 6 states, “A person commits the crime of assault in the second degree when he or she assaults another with a deadly weapon.” CP at 54. Jury instruction 6 merely defines second degree assault and is an accurate statement of the offense. See RCW 9A.36.021(1)(c). Jury instruction 11 is the toconvict instruction, which requires that the jury find that Donnette-Sherman “assaulted” Boyles with a deadly weapon. Our Supreme Court has held that the term assault “adequately conveys the notion of intent” and need not be included as a separate and distinct element in the to-convict instruction. State v. Davis, 119 Wn.2d 657, 663, 835 P.2d 1039 (1992); see also State v. Hall, 104 Wn. App. 56, 62, 14 P.3d 884 (2000). Thus, the omission of the term “intentional” from these instructions was not error. Donnette-Sherman also claims that the omission of any reference to intent in jury instruction 6 could lead the jury to “conclude[ ] that assault and intent are separate under the law.” SAG at 4. We do not, however, review jury instructions in isolation; we review the jury instructions as a whole. State v. Prado, 144 Wn. App. 227, 240, 181 P.3d 901 (2008). Here, jury 5 Although Donnette-Sherman did not object to each of these alleged errors, we exercise our discretion to examine these arguments because they arguably raise constitutional issues and are easily resolved on the merits. See RAP 2.5(a). 11 No. 47602-9-II instruction 10, which defines assault, clearly instructs the jury that assault requires an intentional act. Thus, the lack of reference to intent in jury instruction 6 is not error. Donnette-Sherman appears to contend that defining intent in a separate instruction, jury instruction 7, is confusing. But again, the jury must consider the jury instructions as a whole and providing a separate definitional instruction is not likely to confuse the jury. Donnette-Sherman asserts that jury instruction 10 omits the phrase “‘with unlawful force,’” which he appears to suggest impairs his self-defense claim. SAG at 4. Again, we do not read this instruction in isolation. Prado, 144 Wn. App. at 240. Jury instruction 13 clearly advised the jury that lawful use of force is a defense to a second degree assault charge. Thus, the omission of the phrase “with unlawful force” in instruction 10 was not error. Donnette-Sherman next asserts that jury instruction 8 defines deadly weapon as it is defined in RCW 9.41.270, which he asserts was not cited in the charges or the verdict. Jury instruction 8 states, “Deadly weapon means any weapon, device, instrument, substance, or article, which under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm.” CP at 56. This definition was drawn from RCW 9A.04.110(6), which provides definitions under Title 9A RCW, the title under which Donnette-Sherman was charged, not chapter 9.41 RCW. Thus, Donnette-Sherman’s claim that jury instruction 8 was based on RCW 9.41.270 has no merit. 12 No. 47602-9-II Donnette-Sherman further asserts that jury instruction 15 misstates the law, apparently because of how it defines a deadly weapon. He suggests that it is an improper attempt to “define the term ‘machete’ as a knife with a blade longer than three inches,” when “‘[m]achete’ is not explicitly defined in this way under the Laws of Washington State.” SAG at 4. Jury instruction 15 provides, in part, A knife having a blade longer than three inches is a deadly weapon. A deadly weapon is an implement or instrument that has the capacity to inflict death and, from the manner in which it is used, is likely to produce or may easily produce death. Whether a knife having a blade less than three inches long is a deadly weapon is a question of fact that is for you to decide. CP at 64. This instruction properly defines a deadly weapon for purposes of the sentencing enhancement. RCW 9.94A.825. Whether a machete falls under this definition is a question for the jury, regardless of whether the definition expressly includes machetes. Thus, this claim fails. Donnette-Sherman appears to assert that the use of two definitions of deadly weapon in jury instruction 15 could potentially confuse the jury. Again, we disagree. The jury instruction merely provides alternative definitions of what a deadly weapon is to allow the jury to determine if the machete fit any of these definitions. We hold that this is unlikely to have confused the jury. Donnette-Sherman further asserts that jury instruction 13 is confusing because it is about “self-defense” but does not use that term.6 Jury instruction 13 properly states the lawful use of 6 Jury instruction 13 stated, It is a defense to a charge of Assault in the Second Degree with a Deadly Weapon that the force used was lawful as defined in this instruction. The use of force upon or toward the person of another is lawful when used by a person who reasonably believes that he is about to be injured in preventing or attempting to prevent an offense against the person, and when the force is not more than is necessary. The person using the force may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they 13 No. 47602-9-II force defense. Prado, 144 Wn. App. at 238, 247 (identical instruction made the self-defense standard “manifestly apparent” to the average juror). Thus, this claim fails. Donnette-Sherman also contends that jury instruction 13 did not allow the jury to evaluate his self-defense claim based on his subjective perception of the events. The self-defense standard “incorporates both objective and subjective elements.” State v. Walden, 131 Wn.2d 469, 474, 932 P.2d 1237 (1997). “Evidence of self-defense is evaluated ‘from the standpoint of the reasonably prudent person, knowing all the defendant knows and seeing all the defendant sees.’” Walden, 131 Wn.2d at 474 (quoting State v. Janes, 121 Wn.2d 220, 238, 850 P.2d 495 (1993)). Jury instruction 13 was based on 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 17.02, at 253 (3d ed. 2008), which the courts have determined adequately conveys this standard. See Prado, 144 Wn. App. at 248. Thus, this claim fails. C. SUFFICIENCY CLAIMS Donnette-Sherman next claims that the evidence was insufficient to establish that the machete was a deadly weapon because it was not used in a manner likely to produce death. We disagree. We view a claim of insufficient evidence by viewing the evidence and all reasonable inferences from that evidence in the light most favorable to the State and determining whether any appeared to the person, taking into consideration all of the facts and circumstances known to the person at the time of the incident. The State has the burden of proving beyond a reasonable doubt that the force used by the defendant was not lawful. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty. CP at 61. 14 No. 47602-9-II rational trier of fact could find beyond a reasonable doubt all the elements of the crime. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Donnette-Sherman does not specify whether he is arguing that the evidence was insufficient to prove that the machete was a deadly weapon for purposes of the sentencing enhancement or for the second degree assault conviction.7 So we will address both. For a deadly weapon sentencing enhancement, there must be sufficient evidence that the defendant was armed with an actual deadly weapon. State v. Tongate, 93 Wn.2d 751, 754-55, 613 P.2d 121 (1980). RCW 9.94A.825 defines a deadly weapon in this context: [A] deadly weapon is an implement or instrument which has the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death. The following instruments are included in the term deadly weapon: . . . any knife having a blade longer than three inches. Here, the machete had a blade well over three inches. Furthermore, even if the jury did not find that the machete was a knife with a blade of more than three inches, a rational trier of fact could have easily concluded beyond a reasonable doubt that swinging a machete at another person with a force sufficient to cut into a cell phone was using the machete in a manner that could easily and readily produce death. For the second degree assault with a deadly weapon charge, RCW 9A.04.110(6) defines deadly weapon as “any . . . weapon, device, instrument, article, or substance, . . . which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm.” Again, a rational trier of fact could have easily 7 The trial court instructed the jury on the definition of a deadly weapon for the purposes of the second degree assault charge and, in a separate instruction specific to the sentencing enhancement, for purposes of the enhancement. 15 No. 47602-9-II concluded beyond a reasonable doubt that swinging a machete at another person with a force sufficient to cut into a cell phone was using the machete under circumstances that rendered it capable of causing death or substantial bodily harm. Donnette-Sherman further comments that a jury cannot infer intent from the mere display of a dangerous weapon. Even presuming this statement is correct, the evidence showed more than a display of a weapon—it showed that Donnette-Sherman actually struck at Boyles. Thus, this claim fails. D. “FALSE EVIDENCE” CLAIM Donnette-Sherman further claims that the machete admitted at trial was not the one portrayed in the photographic exhibits 8, 9, and 10. Donnette-Sherman did not object to the admission of the machete or to the admission of exhibits 8, 9, and 10. Thus, he has not preserved this claim for review, and we decline to address it. RAP 2.5(a). E. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS Donnette-Sherman next claims that he received ineffective assistance of counsel because he had requested that defense counsel have an expert review the video and photographic evidence. Whether Donnette-Sherman requested his counsel to obtain an expert is outside this record. Accordingly, we cannot address this issue. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Donnette-Sherman appears to contend that defense counsel failed to develop the selfdefense claim because he failed to adequately cross-examine Boyles about the incident and his (Boyles’s) “mental instability” or “competence” and noting that Boyles was apparently tearful when recounting the incident during his testimony. SAG at 12. The record shows that defense 16 No. 47602-9-II counsel adequately cross-examined Boyles. Furthermore, Donnette-Sherman does not show that Boyles had any mental health or competency issues that defense counsel should have investigated—a witness becoming emotional when recounting an assault is not unusual and does not necessarily suggest any mental health or competency issues. F. IMPROPERLY PRESENTED CLAIMS Donnette-Sherman briefly mentions CrR 3.3, the time for trial rule. This brief mention is not sufficient for this court to determine what he is arguing. Accordingly, we do not address this issue further. RAP 10.10(c) (this court will not consider a SAG issue if the appellant’s argument “does not inform the court of the nature and occurrence of the alleged errors” and will not search the record to support an appellant’s claims). Donnette-Sherman asserts that the prosecutor’s closing argument was “repleat [sic] with false or incorrect leading assumptions the citation of which is onerous to the extent to which it might be easier to list any truth at all.” SAG at 14. Because Donnette-Sherman fails to identify the specific statements to which he objects, we do not address this issue. RAP 10.10(c) G. CUMULATIVE ERROR Finally, Donnette-Sherman claims that cumulative error deprived him of a fair trial. Because Donnette-Sherman has failed to establish any error, he cannot establish cumulative error. State v. Lewis, 156 Wn. App. 230, 245, 233 P.3d 891 (2010). 17 No. 47602-9-II Because Donnette-Sherman does not establish ineffective assistance of counsel based on defense counsel’s failure to object to the State’s closing argument and does not show that the courtroom was closed, and because his SAG issues either fail or cannot be addressed, we affirm. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered. JOHANSON, J. We concur: BJORGEN, C.J. LEE, J. 18

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