* State Of Washington, Respondent V Dominique James Avington, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 55222-1-II
Respondent,
v.
DOMINIQUE JAMES AVINGTON, PART-PUBLISHED OPINION
Appellant.
LEE, C.J. — Dominique J. Avington appeals his convictions for one count of first degree
murder and three counts of first degree assault. Avington argues that the trial court erred in
refusing to give a jury instruction on first degree manslaughter as a lesser included offense of first
degree murder. Avington also argues that he received ineffective assistance of counsel when his
defense counsel failed to renew his motion to sever. And Avington filed a Statement of Additional
Grounds (SAG)1 raising numerous issues.
In the published portion of this opinion, we address Avington’s claim that the trial court
erred in refusing to give an instruction on first degree manslaughter, which requires a finding of
recklessness, as a lesser included offense of first degree murder, which requires a finding of
extreme indifference. We hold that in light of the video evidence showing Avington standing
square and shooting straight towards the direction of the bar entrance, where the victim and others
were gathered, and Avington’s stipulation that a photo admitted into evidence shows him standing
1 RAP 10.10.
Filed
Washington State
Court of Appeals
Division Two
September 27, 2022
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square and firing multiple rounds from a semi-automatic handgun straight towards the direction of
the bar entrance where the victims and others were gathered, no reasonable jury would have been
able to rationally find that Avington was acting recklessly as required for first degree manslaughter
rather than with extreme indifference as required for first degree murder. Thus, the trial court did
not err in failing to give the lesser included jury instruction on first degree manslaughter. We
address and reject Avington’s ineffective assistance of counsel and SAG claims in the unpublished
portion of the opinion. Accordingly, we affirm.
FACTS
A. BACKGROUND
On October 20, 2018, Natosha Jackson was bartending at a club in Lakewood, Washington.
The club had been abnormally busy and some of Jackson’s friends were having a birthday party
in the VIP section of the club. Early in the morning on October 21, Jackson got into an argument
with some men at the bar. Tired and frustrated, Jackson walked away from the bar. Jackson asked
her friend, Perry Walls, to watch out for her because she was being disrespected by a group at the
bar. Jackson then went outside and saw her boyfriend, Terrence King, and his friend, Denzel
McIntyre, who had come to pick her up. Jackson told King she wanted to go home and went back
into the club.
Inside the club, Walls confronted the group of men that Jackson had identified as being
disrespectful to her. This group included Avington, Darry Smalley, and Kenneth Davis. Some of
Walls’ friends from the party followed Walls over to the group. After a short verbal confrontation,
punches were thrown, and both groups were involved in a short fight. The fight was pushed toward
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the door and people began leaving the club. Walls was still upset about the fight and followed the
group outside.
Outside the club, King recognized Walls and moved toward him. McIntyre followed King.
Moments later, 30 shots were fired toward the club. King, Walls, McIntyre, and many other
patrons of the club tried to rush back inside. King was struck by two bullets, one of which was a
fatal shot to the upper back, and died inside the club. Walls was shot in the foot. McIntryre was
shot in the buttocks. Pearl Hendricks, a woman inside the club, was shot four times, twice in the
back. Hendricks was left permanently paralyzed from the chest down.
The State charged Avington with one count of first degree murder for King’s death. The
State also charged Avington with three counts of first degree assault for the injuries to Walls,
McIntyre, and Hendricks. Avington was charged as both a principal and accomplice. Later, the
State amended the information to include an alternative count of second degree murder for King’s
death. The State also alleged for each charge the aggravating circumstance of committing an act
with a destructive and foreseeable impact on persons other than the victim. Smalley and Davis
were also charged, and they were set to be tried jointly with Avington.
B. STIPULATION
All three defendants moved to exclude any gang evidence. During the motion hearing, the
State offered to withdraw the gang evidence if the defendants would stipulate to their identities as
the shooters and rely on self-defense. The defendants agreed to the State’s suggestion, and the
State agreed to sanitize any reference to gang related evidence. The parties entered a
comprehensive written stipulation identifying the defendants, as well as several other people, in
various surveillance videos used as trial evidence. The stipulation included several “still
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photographs taken from surveillance video” that the defendants stipulated were photographs of
Smalley and Avington firing multiple rounds from semi-automatic handguns. Clerk’s Papers (CP)
at 67.
C. TRIAL
The trial court admitted the stipulation into evidence. Jackson, Walls, and McIntyre
testified to the background facts above. Jackson explained that she told Walls, “I need you to
watch my back tonight,” because people were being disrespectful. 9 Verbatim Report of
Proceedings (VRP) at 1381. Walls asked her who he should watch out for and she indicated the
group by the bar.
Walls explained that after Jackson told him she was being disrespected, he went over to
the bar and “made a general announcement” asking who was being disrespectful. 11 VRP at 1725.
Nobody responded to the announcement. A few minutes later, the group was “getting riled up”
and looked to be “squaring off” to fight. 11 VRP at 1727. Walls began pulling up his pants,
preparing for a fight, and then got blindsided by a punch. Walls explained that the fight moved
outside the club as people were pushed out the door. Walls went outside and continued arguing
with the guys outside. While Walls was arguing, he heard shots fired, ran inside, and fell. Inside
the club, Walls realized he had been shot in the foot. Walls testified that he never had a firearm in
his possession.
Detective Jeff Martin of the Lakewood Police Department was assigned as the lead
detective to investigate the shooting at the club. Based on forensic examination of fired shell
casings at the scene, Detective Martin determined there were three shooters firing from three areas.
In total, forensics collected 30 shell casings from outside the club. Through his investigation,
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Detective Martin also identified Avington, Smalley, and Davis as part of a group that had been
together at a different club before going to the club in Lakewood.
1. Avington’s And Smalley’s Testimony
Avington and Smalley testified in their own defense. They both testified that they were
friends. Avington explained that he had known Smalley for years. Although neither of them
intended to meet the night of the shooting, they ended up at the same club earlier in the night.
Then the entire group went to the club in Lakewood.
Smalley testified that while they were at the club, Walls started yelling at and threatening
Smalley’s group. Smalley recognized that the confrontation was turning into an argument and
people in both groups were getting ready to fight. Smalley was trying to stay out of the fight. One
of Walls’ friends threw a punch that did not hit anyone and the fight erupted. During the fight,
Smalley was grabbed and thrown to the ground. The man who slammed Smalley to the ground
ran out the door. Smalley believed the man went to get a gun and tried to get out of the club.
Smalley ran out into the parking lot to his car and grabbed his gun from the passenger door. As
Smalley headed back toward the club, he saw Avington in an aggressive confrontation with Walls.
Although the confrontation appeared aggressive, Smalley could not hear any words being spoken.
Smalley also saw two other men behind Walls that Smalley believed were involved in the
confrontation.
Smalley testified that during the confrontation outside, Walls displayed a firearm. As soon
as Walls showed his firearm, Smalley began firing. According to Smalley, Walls’ firearm was a
black, semi-automatic. When Smalley saw Walls’ firearm, he was scared that Walls would shoot
him or Avington. Smalley felt that
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if I let [Walls] pull that gun out, then not just my life but my friend’s life is in danger
and that we will be shot, so I shoot first.
15 VRP at 2375. Avington also started shooting at the same time, but Smalley claimed that there
was no communication between them before the shooting began.
Smalley admitted that he believed he shot King, although he was not sure who shot
Hendricks because there were three people shooting. Smalley also admitted that he was shooting
at Walls. Smalley testified that he fired 16 or 17 time at Walls, King, and McIntyre.
Avington testified that he had never been to the club before, but he assumed it was a biker
bar. Avington had a firearm with him and brought it inside the club.
Avington first noticed Walls yelling and being belligerent while he was at the bar. At first,
Avington was not sure who Walls was directing his comments to, but then it became apparent to
Avington that Walls was addressing his group. The confrontation began to escalate and people
began pushing. Avington testified that a punch was thrown and then he ended up involved in the
fight. Avington attempted to leave the club and walk away from the situation, but the argument
continued outside.
Avington also testified that Walls confronted him outside the club. According to Avington,
Walls threatened to kill him, pulled up his shirt, and displayed a firearm. Avington stated that he
fired only to scare Walls and to keep Walls from shooting at him. Avington explained that
I wasn’t aiming at anything in general. I didn’t even want to aim at [Walls]. I just
shot to scare him away from me and the people who were around me at the time.
. . . .
I aimed away from him, actually. I just wanted to prevent him from doing anything
further, for him getting a chance to shoot me or anybody I was around.
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16 VRP at 2501. Avington specifically testified that he fired high and to the right. Avington
claimed that he purposefully shot away from all of the people. Avington admitted that his rounds
could have struck the club, but they could not have struck people. Avington explained he only
wanted to scare Walls away from him.
After the shooting, Avington left the scene because he was scared. Avington also explained
that he did not trust the police and had no intention of dealing with them. Avington denied that
any discussion occurred between him and Smalley prior to the shooting. He explicitly testified
that he only knew what he did, he did not know what anyone else was doing.
2. Surveillance Videos
Videos from the surveillance system at the club, as well as surveillance videos from a
neighboring business, were admitted into evidence. The club’s security video captured the fight
inside the club.
Prior to the fight, Walls can be seen posturing, pulling up his pants, and beginning to square
off with a group. Then Avington threw a punch at someone standing next to Walls. As multiple
people ended up on the ground, Avington began throwing punches at someone on the ground.
Avington then punched Walls several times, and Walls fought back. Punches continued to be
thrown as several people involved in the fight began running out of the club.
Video of the front entrance area of the club show the fight getting pushed outside. Walls
and others continued yelling and posturing at the entrance of the club. The pushing and shoving
continued before Walls exited the club. Walls exited the club, and less than a minute later, the
shooting began.
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No. 55222-1-II
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Video outside the club shows Avington leaving the club and walking away, but then he
turns around and returns to the club entrance. Avington got into some type of altercation with
others outside the entrance and the people still inside the club entrance. Avington and others move
away from the club entrance and into the parking lot as Walls exits the club.
The video behind Walls shows him pulling up his pants and walking in Avington’s
direction. Walls is on the video for the entire time leading up to the shooting, and it appears both
of his arms are at his sides the entire time. As soon as the shooting starts, Walls turns and runs
back into the club. Avington is not in the frame of this video.
However, a surveillance video from a neighboring business shows Avington and Smalley
at the time of the shooting. Avington stipulated that a still photo from the video showed him firing
multiple bullets while standing square, facing forward with his arm almost parallel to the ground
and pointing forward. Smalley is to Avignton’s left, standing slightly behind him. The
surveillance video also shows Smalley in the same stance as Avington and firing 17 shots. The
video further shows that after the shooting, Avington and Smalley ran away in the same direction.
3. Jury Instructions
Avington proposed jury instructions for first degree manslaughter as a lesser included
offense. After the off the record discussion on jury instructions, Avington took exception on the
record to the trial court’s refusal to instruct on the lesser included offense. Avington argued that
the jury could find that his actions were just negligent or reckless. The trial court provided an
extensive ruling on its decision to not include the proposed lesser included offense instruction.
The trial court stated that
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Mr. Avington’s assertion, his testimony that he aimed away from people, in
my view is not credible. The video evidence shows Mr. Avington holding the gun
that he fired in a level fashion. It does not demonstrate that Mr. Avington was
aiming that gun upwards and away from individuals as he testified he aimed up and
to the right. The video evidence doesn’t support that assertion.
17 VRP at 2628. Ultimately, the trial court concluded that the jury could not rationally conclude
that only first degree manslaughter was committed.
The trial court also instructed the jury that Avington was guilty of all charges if the crime
was committed by either Avington or an accomplice. The trial court’s instruction on accomplice
liability stated:
A person is guilty of a crime if it is committed by the conduct of another
person for which he is legally accountable. A person is legally accountable for the
conduct of another person when he or she is an accomplice of such other person in
the commission of the crime.
A person is an accomplice in the commission of a crime if, with knowledge
that it will promote or facilitate the commission of the crime, he either:
(1) solicits, commands, encourages, or requests another person to commit
the crime; or
(2) aids or agrees to aid another person in planning or committing the crime.
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.
A person who is an accomplice in the commission of a crime is guilty of
that crime whether present at the scene or not.
CP at 199.
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D. VERDICTS AND SENTENCING
The jury found Avington guilty of first degree murder, second degree murder, and three
counts of first degree assault. The jury also found that Avington or an accomplice was armed with
a firearm for all offenses. The jury further found that the State proved aggravating circumstance
on all charges. The jury entered the same verdicts against Smalley. The jury found Davis not
guilty of all charges.
The trial court determined that a standard range sentence was appropriate despite the jury’s
findings on aggravating circumstances. The trial court imposed a high end range sentence on each
count.2 The trial court also imposed the mandatory firearm sentencing enhancements. All terms
of confinement were ordered to be served consecutively because all charges were serious violent
offenses. Avington was sentenced to a total of 929 months total confinement.
Avington appeals.
ANALYSIS
Avington argues that the trial court erred by refusing to give his proposed instruction on
first degree manslaughter as a lesser included offense of first degree murder by extreme
indifference. We disagree.
2 At sentencing, the trial court dismissed the second degree murder conviction to prevent a double
jeopardy violation with the first degree murder conviction.
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A. LEGAL PRINCIPLES
A defendant has a statutory right to have the jury instructed on a lesser included offense.
State v. Condon, 182 Wn.2d 307, 316, 343 P.3d 357 (2015); RCW 10.61.006.3 Washington courts
use the two-pronged test in State v. Workman to determine whether a defendant is entitled to an
instruction on a lesser included offense:
[A] defendant is entitled to an instruction on a lesser included offense if two
conditions are met. First, each of the elements of the lesser offense must be a
necessary element of the offense charged [legal prong]. Second, the evidence in
the case must support an inference that the lesser crime was committed [factual
prong].
90 Wn.2d 443, 447-448, 584 P.2d 382 (1978) (internal citations omitted). Although Workman is
the well-established test for determining whether a defendant is entitled to an instruction on a lesser
included offense, our Supreme Court has recently recognized that some of the case law interpreting
the Workman test have caused some confusion regarding the second prong (the factual prong) of
the Workman test—specifically, the language in State v. Fernandez-Medina.4 State v. Coryell, 197
Wn.2d 397, 415, 483 P.3d 98 (2021).
In Fernandez-Medina, our Supreme Court explained the application of the factual prong
of the Workman test as follows:
The purpose of this test is to ensure that there is evidence to support the giving of
the requested instruction. If interpreted too literally, though, the factual test would
impose a redundant and unnecessary requirement because all jury instructions must
be supported by sufficient evidence. Necessarily, then, the factual test includes a
requirement that there be a factual showing more particularized than that required
3 RCW 10.61.006 states, “In all other cases the defendant may be found guilty of an offense the
commission of which is necessarily included within that which he or she is charged in the
indictment or information.”
4 State v. Fernandez-Medina, 141 Wn.2d 448, 6 P.3d 1150 (2000).
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for other jury instructions. Specifically, we have held that the evidence must raise
an inference that only the lesser included/inferior degree offense was committed to
the exclusion of the charged offense.
141 Wn.2d at 455 (internal citation omitted). Although not incorrect, our Supreme Court has
recognized that this language has resulted in courts weighing evidence and mistakenly believing
that evidence is required to show that the greater charged crime was not committed.5 Coryell, 197
Wn.2d at 414-15.
Our Supreme Court has now clarified the standard for determining whether the factual
prong of the Workman test is satisfied. Id. at 415. In order for a defendant to be entitled to an
instruction on a lesser included offense there must be some evidence presented which affirmatively
establishes the defendant’s theory of the crime. Id. “If the evidence permits a jury to rationally
find a defendant guilty of the lesser offense, a lesser included offense instruction should be given.”
Id.
5 In part, Avington argues that the trial court applied the incorrect standard by relying on the
exclusion language in Fernandez-Medina. In Coryell, our Supreme Court noted:
Read in isolation, we might agree that the language in Fernandez-Medina
departs from Workman. But in context, it is an attempt to state more clearly a
principle that is simple in the abstract and often complicated in the specific: a
defendant is entitled to a lesser included instruction based on the evidence actually
admitted.
197 Wn.2d at 406. Therefore, the issue is not one of whether the trial court applied the wrong
legal standard but whether the trial court erred in determining that the factual prong was not
satisfied.
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B. FIRST DEGREE MANSLAUGHTER INSTRUCTION
Avington argues that the trial court improperly weighed evidence and made credibility
determinations.6 We disagree.
If the trial court’s decision on a lesser included offense instruction is based on a factual
determination, we review the decision for an abuse of discretion. Id. at 405. Conflicts in evidence
are questions of fact for the jury, not the trial court. Id. at 414. It is improper for the trial court to
weigh evidence when ruling on jury instructions. Id. at 415. “When the appellate court determines
if the evidence at trial is sufficient to support an instruction, it views the ‘supporting evidence in
the light most favorable to the party that requested the instruction.’” Id. (quoting Fernandez-
Medina, 141 Wn.2d at 455-56). If a jury can rationally find the defendant guilty of a lesser offense
based on the evidence, then a lesser included offense instruction should be given. Id.
First degree murder by extreme indifference requires that a person act with extreme
indifference, an aggravated form of recklessness, which creates a grave risk of death to others, and
6 Avington also argues that he was entitled to an instruction on the lesser included offense of first
degree manslaughter because, from the evidence, the jury could find that Avington reasonably
believed that he needed to act in self-defense but recklessly used more force than was warranted.
This specific argument is raised for the first time on appeal.
Under RAP 2.5(a), we may refuse to consider arguments raised for the first time on appeal.
Although Avington objected to the trial court’s decision to decline the first degree manslaughter
instruction, he did not argue that he was entitled to the instruction because he recklessly used more
force than necessary to defend himself. And the trial court’s ruling was not based, in any way, on
the theory that a first degree manslaughter instruction was appropriate because the use of force
was recklessly more than necessary. Further, Avington does not address RAP 2.5(a)(3) or any
exception to waiver in his briefing. See State v. Cox, 109 Wn. App. 937, 943, 38 P.3d 371 (2002)
(when an appellant fails to provide argument or authority, this court is not “required to construct
an argument on behalf of appellants”). Therefore, we decline to consider Avington’s argument
raised for the first time on appeal that the trial court should have given the lesser included offense
instructions because he recklessly used more force than necessary in self-defense.
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causes the death of a person. RCW 9A.32.030(1)(b). On the other hand, first degree manslaughter
requires that a person recklessly cause the death of another. RCW 9A.32.060(1)(a). “A person . .
. acts recklessly when he or she knows of and disregards a substantial risk that a wrongful act may
occur and his or her disregard of such substantial risk is a gross deviation from conduct that a
reasonable person would exercise in the same situation.” RCW 9A.08.010(1)(c).
In distinguishing between extreme indifference and recklessness, case law shows that a
defendant charged with first degree murder is entitled to a first degree manslaughter instruction if
there is some evidence that the defendant shot at an object rather than at a group of people. See
State v. Henderson, 182 Wn.2d 734, 745-46, 344 P.3d 1207 (2015); In re Pers. Restraint of
Sandoval, 189 Wn.2d 811, 823, 408 P.3d 675 (2018). For example, in Henderson, the defendant
fired several shots toward a house party and our Supreme Court held that a rational jury could have
found that the defendant acted with recklessness because of
(1) testimony from the party’s hosts that only three people were outside the house
at the time of the shooting, (2) police testimony that no bullets or bullet strikes were
found inside the house, where the majority of the partygoers were located, (3) the
fact that most of the shots hit the side of the house or cars on the street and did not
appear to land near people, and (4) testimony that Henderson shot from the street
rather than closer to the house.
182 Wn.2d at 745. Based on this evidence, our Supreme Court determined that “the jury could
have concluded that Henderson intended to scare those in the house by erratically firing his gun
rather than aiming at the security people in the yard.” Id. at 745-46. Our Supreme Court applied
the same reasoning in Sandoval, in which the defendant was charged as an accomplice for a drive-
by shooting of a van. 189 Wn.2d at 822-23.
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Here, although Avington testified that he fired high and to the right, which could support
giving an instruction on first degree manslaughter, the trial court correctly determined that no
reasonable jury would have been able to rationally find that Avington acted recklessly rather than
with extreme indifference. Coryell, 197 Wn.2d at 415. Avington’s testimony was directly
contradicted, not only by video evidence showing that he stood square and fired straight towards
the direction of the bar entrance where the crowd was gathered, but by Avington’s own stipulation
that the photo still from the video showed him standing square and firing straight ahead. Generally,
it would be improper for a trial court to weigh evidence when determining whether a jury
instruction should be given. However, the fact that 30 shots were fired at the crowd at the bar
entrance and given Avington’s stipulation to photo evidence that clearly shows that Avington was
firing straight ahead at the bar entrance where the crowd was gathered and not high and to the
right, no jury could rationally determine that Avington acted recklessly rather than with extreme
indifference. Therefore, in this case, the trial court did not abuse its discretion by declining to give
the instruction on first degree manslaughter as a lesser included offense.
We affirm.
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.
ADDITIONAL FACTS
A. SEVERANCE
Prior to trial, Avington moved to sever his trial from his co-defendants, Smalley and Davis.
Avington argued that he was not associated with his co-defendants and that his culpability was
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No. 55222-1-II
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less than his co-defendants. At the hearing on the motion to sever, Avington argued generally that
he would be prejudiced by “lumping him together” with the co-defendants and attributing their
actions to him when he was maintaining that he acted completely independently of his co-
defendants. 1 VRP at 50. Avington did not identify any specific evidence that he claimed would
be unfairly prejudicial to him in a joint trial. The State argued that there were no grounds for
severance because all the evidence in the trial would be cross-admissible in a trial against Avington
and the defenses were not mutually antagonistic.
The trial court ruled that whether Avington acted independently from his co-defendants
was a question for the jury. The trial court concluded that Avington had failed to show that any
of the legal factors supported severance because the defenses were not mutually antagonistic and
the evidence would be cross-admissible. The trial court denied Avington’s motion to sever.
At trial, the State presented evidence regarding Smalley’s behavior before and after the
shooting. Erica Johnson, a friend of Smalley’s, purchased the firearm used in the shooting for
Smalley. Johnson stated that she did not know Avington, had never met Avington, and had never
even seen him before.
Smalley testified that he spent the night at a hotel after the shooting. In the morning, he
stopped at a gas station and gave his firearm to a friend. Smalley did not see the firearm after that.
Another friend of Smalley’s, who was on GPS monitoring for parole, was at Redondo Beach after
the shooting. A portion of the firearm that Johnson purchased for Smalley was recovered at
Redondo Beach.
Johnson testified that Smalley was at her home the morning after the shooting. While at
the house, Smalley told Johnson’s fiancé what had happened the night before. Johnson testified
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that she heard Smalley say he called a girl a “bitch,” the girl called someone over, and a fight broke
out. 12 VRP at 1882. The State confronted Johnson with previous statements she had made where
she stated that she overheard Smalley say he also fired shots from the parking lot and that Smalley
was bragging about the shooting. However, in her testimony at trial, Johnson denied Smalley
made the statements, claimed she did not remember, and stated that she was only telling authorities
what they wanted to hear.
Several days later, after learning that one person had been killed and three others had been
shot, Smalley bought a friend’s identification and debit card. Then Smalley traveled through
California to Hawaii, where he was arrested.
B. SELF-DEFENSE JURY INSTRUCTION
Avington proposed jury instructions on self-defense for both the murder charges and the
assault charges. Avington’s proposed self-defense instruction for the assault charges stated:
A person is entitled to act on appearances in defending himself or
another, if that person believes in good faith and on reasonable grounds that he
or another is in actual danger of injury, although it afterwards might develop
that the person was mistaken as to the extent of the danger. Actual danger is
not necessary for the use of force to be lawful.
CP at 78. A similar instruction was proposed for self-defense on the murder charges, but the
proposed instruction stating that a person is entitled to act on appearance in defending himself as
it related to self-defense for the murder charges stated that a person must believe there is “actual
danger of great personal injury,” which is a higher standard than the assault self-defense instruction
in which the person must believe there is only an “actual danger of injury.” CP at 78, 80. The
trial court did not give Avington’s proposed instruction regarding the right to act on appearances
of actual danger of injury.
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No. 55222-1-II
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The trial court conducted an off-the-record discussion of the jury instructions. But the trial
court took exceptions to the court’s instructions on the record. Avington did not take exception to
any of the self-defense instructions that the court intended to give to the jury. Avington also did
not take exception to the trial court not including Avington’s proposed instruction regarding the
right to act on appearances in defending from injury.
C. CLOSING ARGUMENTS
The State’s theory of the case was that all three defendants chose to act together to “make
a statement.” 18 VRP at 2658. The State argued that the defendants were acting as accomplices
because all three were working together from the beginning of the fight in the club and had the
same objective and mindset.
The State also argued that the defendants failed to prove that they acted in self-defense.
First, the State contended that the defendants initially claimed identity as a defense but had to
switch their defense to self-defense: “The reality is, the defendants’ initial defense must have been
identity; what we call identity; ‘it wasn’t me.’” 18 VRP at 2660. However, once the defendant’s
learned that there were multiple videos showing their participation in the crime they “had to switch
to plan B, self-defense.” 18 VRP at 2661.
The State went on to argue that there was no evidence to support the claim of self-defense
because Walls did not have a gun and Walls did not threaten anyone with great bodily harm or
death. When the State began discussing Walls’ testimony, the State argued:
You heard defense try to vilify Perry Walls. Why? They have to. They’ve got
to. In order to make a self-defense claim, the defendants have to be able to
point to evidence of a specific and deadly threat. If there’s no evidence of a
real threat, then their claim—and the threat has to be of death or great bodily
harm—then their claim just falls; it’s not available.
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No. 55222-1-II
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18 VRP at 2665-66. The State then went on to discuss in detail the evidence it believed showed
that Walls had no gun and was not a threat to the defendants. The State also argued that the video
evidence showed that Avington, Smalley, and Davis were preparing for the shooting before Walls
even exited the club. And the State argued that the defendants’ actions and body language show
they were intending to shoot toward the entire crowd at the club rather than trying to specifically
defend themselves against Walls. The State also reviewed the defendants’ testimony in detail to
show that it did not support the claim of self-defense.
In rebuttal argument, the State discussed its burden of proof. The State recognized that
beyond a reasonable doubt was a difficult concept that is not encountered in daily decision making.
The prosecutor offered an analogy to help explain the concept of reasonable doubt:
Let me offer an analogy for you that may make sense and may be
helpful, and that’s to consider it in the way you do a puzzle . . . . You sit down
and put that puzzle together, and you might find as you go along that there are
pieces of the puzzle you don’t know what to do with and so you set them aside;
you can’t find the right place for them.
There are pieces of the puzzle that are broken or warped, chipped,
cracked, whatever. There are pieces of the puzzle that maybe they were gone
before you even sat down, and nevertheless, if you have enough pieces of the
puzzle, there will come a point at which, and it’s personal for each of you, there
will come a point at which you are certain as to the image you are seeing despite
the fact that there are warps in the puzzle pieces, despite the fact that you have
missing pieces.
Now think of a trial in much the same way. You are given pieces of
evidence like pieces of a puzzle. Some of those pieces of evidence you may
not know what to do with. Maybe it’s one thing a witness said. Maybe it’s
everything a witness said, and so you set that piece aside. Maybe there are
pieces of evidence that have warps or cracks or chips, but you can still put them
into their place. Maybe there are pieces of the evidence that you could conjure
up as having existed somewhere out in the ether that just were never presented
to you, like those missing puzzle pieces.
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No. 55222-1-II
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And the question for you all as jurors is—and, again, it’s a personal
decision for each of you—the question is whether you have enough pieces of
evidence warps and all, holes and all, with what you put into place, does it meet
the elements of the crime and are you confident beyond a reasonable doubt as
to the image you are seeing. I offer that as an analogy as you move forward.
18 VRP at 2835-36.
The State then clarified the burden of proof:
This is important, too. These defendants when they testified—or,
sorry—these defendants have no burden of proof. Let’s be clear about that. If
you choose to put on a case, that’s your right. If you choose not to put on a
case, that’s your right. If you don’t put on a case, like for example, Mr. Davis,
you can’t hold that against Mr. Davis. You have a right to remain silent, so on
and so forth. The burden does at all times remain with the State.
18 VRP at 2881.
The State went on to argue that when a defendant does put on a case, the State is able to
question the evidence and the defense presented, including asking why certain witnesses did not
testify. The State also argued:
You heard from [a defense counsel] why the State didn’t call Mr.
Cooper or Mr. Legend or any of these people. Because they never would have
told you the truth. They never would have said: “You know what? I love these
guys, but, yeah, what they did wasn’t appropriate; what they did was just
malicious.” And so you’re not going to get those witnesses. But if those
witnesses who are tight, as you heard from these defendants, are tight with these
defendants, where are they to back up what they’re saying? That’s not burden
shifting. That’s simply assessing the credibility of what they have to say.
18 VRP at 2882-83. Avington objected and the objection was overruled.
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No. 55222-1-II
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ANALYSIS
A. INEFFECTIVE ASSISTANCE OF COUNSEL
Avington argues that he received ineffective assistance of counsel because his defense
counsel failed to renew his motion to sever. We disagree.
1. Legal Principles
Issues related to severance are waived if the defendant fails to renew a motion for severance
before or at the close of all the evidence. CrR 4.4(a)(2). Because Avington failed to renew his
motion to sever during trial, any issues related to the joint trial are waived. However, Avington
argues that defense counsel’s failure to renew the motion constituted ineffective assistance of
counsel.
We review claims of ineffective assistance of counsel de novo. State v. Vazquez, 198
Wn.2d 239, 249, 494 P.3d 424 (2021). To establish ineffective assistance of counsel, a defendant
must show that their attorney’s performance was deficient and prejudicial. Id. at 247-48. . An
ineffective assistance of counsel claim fails if the defendant fails to establish either deficient
performance or prejudice. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011), cert. denied,
574 U.S. 860 (2014).
Our Supreme Court has explained what must be shown to establish ineffective assistance
of counsel based on waiving a motion for severance:
To demonstrate deficient performance, a “defendant must show in the record the
absence of legitimate strategic or tactical reasons supporting the challenged conduct
by counsel.” [State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995)].
To establish prejudice based on an improper joint trial, a defendant must show [1]
that a competent attorney would have moved for severance, [2] that the motion
likely would have been granted, and [3] that there is a reasonable probability he
would have been acquitted at a separate trial.
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No. 55222-1-II
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State v. Emery, 174 Wn.2d 741, 755, 278 P.3d 653 (2012). There is a strong presumption that
counsel is effective. Vazquez, 198 Wn.2d at 247. “The defendant has the burden to show that
defense counsel’s performance was deficient based on the trial court record.” Id. at 248.
“Specifically, ‘the defendant must show in the record the absence of legitimate strategic or tactical
reasons supporting the challenged conduct by counsel.” Id. (quoting McFarland, 127 Wn.2d at
336).
2. Legitimate Strategic Or Tactical Reason For A Joint Trial
Avington argues that his defense counsel had no strategic reason to waive severance. We
disagree.
Avington asserts that there was no strategic reason for a joint trial, but the record indicates
that defense counsel may have decided there were potential strategic advantages of a joint trial
once the original motion to sever was denied. See id. at 255, 258, 261 (assuming defense counsel’s
strategy and evaluating whether strategic choices were reasonable). For example, Avington’s
defense was that he did not act as an accomplice to his co-defendants and was not responsible for
the shooting. Defense counsel may have determined that this defense may be more successful if
Avington could point directly to his co-defendants at trial as the parties responsible. And defense
counsel also may have determined that if the jury heard evidence that Smalley bragged about the
shooting, tried to dispose of his weapon, and tried to evade arrest in Hawaii, the jury would
conclude that Smalley was the guilty party and absolve Avington of guilt for the shooting. Defense
counsel’s strategy may have been ultimately unsuccessful, but Avington cannot show that there
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No. 55222-1-II
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was no legitimate strategic or tactical reason for defense counsel to waive issues related to
severance by failing to renew the motion.
Also, because none of the evidence introduced about Smalley’s behavior implicated
Avington, defense counsel’s strategy was reasonable. See id. at 255 (noting the relevant question
is whether counsel’s strategic choices were reasonable). Johnson specifically testified that she did
not know Avington, and there was no evidence that Avington was involved in the purchase of the
firearms. And Avington was not with Smalley when Smalley got rid of his firearm, went to
Johnson’s house, bought someone else’s identification, and fled to Hawaii. Because none of the
evidence against Smalley implicated Avington, there is nothing in the record that shows it was an
unreasonable trial tactic to choose not to renew the motion to sever. Therefore, Avington cannot
show that counsel’s performance was deficient.
3. Prejudice
Avington also fails to show that the failure to renew the severance motion was prejudicial.
Avington cannot show the three factors required to demonstrate prejudice, and his ineffective
assistance of counsel claim fails on this basis as well.
As stated above, Avington must show three factors to establish prejudice. First, Avington
must show that a competent defense attorney would have moved for severance. Emery, 174 Wn.2d
at 755. Second, Avington must show that the motion likely would have been granted. Id. And
third, Avington must show that there is a reasonable probability that he would have been acquitted
at a separate trial. Id.
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No. 55222-1-II
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a. Would a competent attorney have moved for severance?
Avington argues that a competent defense attorney would have moved for severance
because, by the time the State rested its case, it was clear that the evidence against Smalley
undermined Avington’s case. Avington relies on the following evidence to support this argument:
Smalley’s purchase of the gun through a straw purchase, Smalley’s attempts to have a third party
dispose of the gun, Smalley’s flight to Hawaii, and evidence that Johnson said Smalley bragged
about the shooting. However, we disagree with Avington’s argument that this evidence
undermined Avington’s case and a competent defense attorney would have moved for severance.
The evidence relied on by Avington to support his argument does not directly implicate
Avington’s guilt; rather, the evidence relates to Smalley’s actions and attitudes. Avington argued
that he was acting completely independent of Smalley; therefore, evidence of Smalley’s actions,
including Johnson’s testimony, would have had no effect on Avington’s case. Further, as
explained above, defense counsel may have determined that there were strategic and tactical
advantages to a joint trial in which Avington could argue that Smalley’s actions proved Smalley
was responsible for the shooting and that Avington was only acting independently to defend
himself. Therefore, contrary to his argument, Avington’s case was not clearly undermined by the
evidence against Smalley, and Avington cannot show that a competent defense attorney would
have moved for severance based on the discrete evidence relating to Smalley’s conduct.
b. Would the motion have likely been granted?
Avington argues that the trial court would have granted a motion to sever because the
evidence against Smalley would not have been admissible in a separate trial against Avington.
However, a motion to sever is not determined exclusively by admissibility of evidence in a separate
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No. 55222-1-II
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trial. We disagree with Avington’s assertion that it is likely a motion to sever would have been
granted.
Washington courts do not favor separate trials. State v. Moses, 193 Wn. App. 341, 359,
372 P.3d 147, review denied, 186 Wn.2d 1007 (2016). Under CrR 4.4(c)(2)(ii), the trial court has
the discretion to sever co-defendants’ trials when “it is deemed necessary to achieve a fair
determination of the guilt or innocence of a defendant.” The defendant moving for severance bears
the burden of demonstrating that the prejudice of the joint trial outweighs the concerns for judicial
economy. Moses, 193 Wn. App. at 359-60.
To show a joint trial was improper, a defendant must show specific prejudice. Id. at 359.
A defendant may demonstrate specific prejudice by showing:
“(1) antagonistic defenses conflicting to the point of being irreconcilable and
mutually exclusive; (2) a massive and complex quantity of evidence making it
almost impossible for the jury to separate evidence as it related to each defendant
when determining each defendant’s innocence or guilt; (3) a co-defendant’s
statement inculpating the moving defendant; (4) or gross disparity in the weight of
the evidence against the defendants.”
Id. at 360 (internal quotation marks omitted) (quoting State v. Canedo-Astorga, 79 Wn. App. 518,
528, 903 P.2d 500 (1995), review denied, 128 Wn.2d 1025 (1996)). Ultimately, in order to show
that a motion to sever would have been granted, Avington must show that there was specific
prejudice that made joint trials improper. See id. 359-60.
Here, Avington fails to show any specific prejudice that would necessitate severing his trial
from Smalley’s. Avington and Smalley did not have antagonistic defenses; they were both arguing
they were acting in self-defense from Walls’ actions. There was nothing mutually exclusive about
their defenses presented at trial. And even assuming, without deciding, that Avington is correct in
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No. 55222-1-II
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his assertion that the evidence regarding Smalley’s actions and Johnson’s testimony would not be
admissible in a separate trial, the evidence was not so complex that it was impossible for the jury
to separate out what evidence related to Smalley’s guilt and what evidence related to Avington’s
guilt. Also, there is no specific prejudice based on a co-defendant’s statements because Smalley
did not make any statements inculpating Avington. Finally, although the additional evidence
indicating Smalley’s guilt may have created some disparity in the weight of evidence against the
co-defendants, there was also a significant amount of evidence against Avington. Therefore, there
was not a gross disparity in the weight of evidence against Avington and any prejudice caused by
the slight disparity of the evidence against Smalley would be insufficient to outweigh the concerns
for judicial economy. Accordingly, Avington cannot show specific prejudice from a joint trial.
See id. at 360. Because Avington cannot show that there was any specific prejudice from the joint
trials, he cannot show that the trial court likely would have granted a motion to sever.
c. Was there a reasonable probability of acquittal in a separate trial?
Avington argues the “jury likely conflated Avington’s legitimate fear for his life, and his
relatively restrained response to the threat he perceived from Walls, with Smalley’s less
compelling claims of concern for the safety of his friends, his cavalier attitude towards the incident
when talking to Johnson, and multiple acts indicating his consciousness of guilt.” Br. of Appellant
at 21. Based on this argument, Avington claims that it is likely the outcome at a separate trial
would have been different. We disagree.
Here, Avington must establish that there was a reasonable probability that he would have
been acquitted at a separate trial. Emery, 174 Wn.2d at 755. But the State presented substantial
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No. 55222-1-II
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evidence of Avington’s guilt, independent of the evidence related to Smalley’s actions; thus, there
is not a reasonable probability that Avington would have been acquitted at a separate trial.
Even in a separate trial, the State would have been able to present evidence showing that
Avington did not shoot at Walls in self-defense because Walls had a gun. Avington did not dispute
that he participated in the shooting. And surveillance video and other witness testimony
contradicted Avington’s testimony that Walls had a gun. For example, surveillance video showed
that Walls did not lift his shirt to reveal a gun as Avington claimed. While Avington testified that
he saw a gun before shooting, Walls testified that he did not have a gun. Surveillance video also
showed that Avington stood squarely facing Walls and shot multiple bullets straight ahead at
Walls, not high and to the right away from Walls as Avington testified. And Avington stipulated
that the photo admitted into evidence was a picture of him standing squarely and shooting straight
ahead. Given the evidence disputing Avington’s claim of self-defense, independent of the
evidence regarding Smalley’s actions indicating guilt, there is not a reasonable probability that
Avington would have been acquitted in a separate trial.
Avington fails to show that a competent attorney would have moved for severance, the
motion likely would have been granted, or there is a reasonable probability that he would have
been acquitted in a separate trial. Thus, Avington fails to demonstrate that defense counsel’s
failure to renew the motion to sever was prejudicial.
Avington cannot show that counsel’s performance was deficient nor can he show that the
failure to renew the severance motion was prejudicial. Therefore, Avington’s ineffective
assistance of counsel claim fails.
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No. 55222-1-II
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B. SAG
1. Sufficiency Of The Evidence
Avington makes two claims related to his challenge to the sufficiency of the evidence
supporting the jury’s verdict. First, Avington claims that there was insufficient evidence to support
any finding that he was an accomplice. Second, Avington claims that there was insufficient
evidence to prove the assault charge related to the shooting of Hendricks.
Evidence is sufficient to support a conviction if any rational trier of fact can find the
essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201,
829 P.2d 1068 (1992). The evidence must be viewed in the light most favorable to the State and
interpreted most strongly against the defendant. Id. Circumstantial and direct evidence are equally
reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). “A claim of insufficiency
[of evidence] admits the truth of the State’s evidence and all inferences that reasonably can be
drawn therefrom.” Salinas, 119 Wn.2d at 201.
a. Accomplice liability
“A person is guilty of a crime if it is committed by the conduct of another person for which
he or she is legally accountable.” RCW 9A.08.020(1). The person is legally accountable for
another person when they are an accomplice in the commission of the crime. RCW
9A.08.020(2)(c). A person is an accomplice when:
(a) With knowledge that it will promote or facilitate the commission of the
crime, he or she:
(i) Solicits, commands, encourages, or requests such other person to commit
it; or
(ii) Aids or agrees to aid such other person in the planning or committing it.
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No. 55222-1-II
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RCW 9A.08.020(3)(a). “An accomplice must have actual knowledge that the principal was
engaged in the charged crime.” State v. Clark, 190 Wn. App. 736, 762, 361 P.3d 168 (2015),
review denied, 186 Wn.2d 1009 (2016). “The statute provides that a person has actual knowledge
when ‘he or she has information which would lead a reasonable person in the same situation to
believe’ he was promoting or facilitating the crime.” Id. (quoting RCW 9A.08.010(1)(b)(ii)).
“However, ‘[w]hile the State must prove actual knowledge, it may do so through circumstantial
evidence.’” Id. (alteration in original) (quoting State v. Allen, 182 Wn.2d 364, 374, 341 P.3d 268
(2015)). Further, “[a]n accomplice must associate himself with the principal’s criminal
undertaking, participate in it as something he desires to bring about, and seek by his action to make
it succeed.” State v. Jameison, 4 Wn. App. 2d 184, 204-05, 421 P.3d 463 (2018).
Here, the State presented sufficient evidence to support the jury’s finding that Avington
acted as Smalley’s accomplice. Smalley and Avington were not complete strangers who just
happened to be in the same place at the same time. The evidence shows that Avington and Smalley
had known each other for a long time prior to the shooting and were together at another club before
the shooting. Further, Avington and Smalley acted together as part of a group when fighting with
Walls. And the video evidence shows that Smalley and Avington may have had some
communication directly before the shooting. These facts, taken together, allow the jury to infer
that Avington and Smalley were aiding and encouraging each other’s actions. In addition, because
Avington and Smalley could see what the other was doing at the time of the shooting and Smalley
was standing just slightly behind Avington during the shooting, the jury could infer that they were
aiding or encouraging each other in shooting at Walls, King, and McIntyre. Viewing the evidence
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No. 55222-1-II
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in the light most favorable to the State, there was sufficient evidence to support the jury’s verdict
that Avington acted as an accomplice.
b. Assault against Hendricks
Avington claims that there was insufficient evidence to support his assault conviction
relating to Hendricks because there was no evidence regarding whose bullets struck Hendricks.
We disagree.
Avington is correct that the State failed to prove who shot Hendricks because there was no
evidence of whose bullet struck her. But Smalley testified that he aimed specifically at Walls,
King, and McIntyre, firing 17 bullets in that direction. Based on Smalley’s testimony, there was
sufficient evidence for the jury to find that one of Smalley’s bullets was one of the four bullets that
struck Hendricks. And because, as explained above, there was sufficient evidence to show that
Avington acted as an accomplice to Smalley, there was sufficient evidence for the jury to find
Avington guilty of assault against Hendricks.
Moreover, even if we assumed that the third shooter fired all four bullets that struck
Hendricks, there is sufficient evidence to support the jury’s verdict. The evidence established that
Avington and Smalley were at the club with several people and multiple members of their group
left the club just prior to the shooting. The evidence also showed that there were three shooters in
the parking lot. Although the jury apparently found that the State failed to prove Davis was the
third shooter, there was sufficient evidence to allow the jury to infer that the third shooter was a
member of Avington and Smalley’s group and all three acted based on the aid and encouragement
of the others, making Avington liable for the actions of the third shooter as an accomplice.
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No. 55222-1-II
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Because there was sufficient evidence to support the jury’s verdict finding Avington guilty
of assault against Hendricks, Avington’s SAG claim fails.
2. Merger
Avington claims that the trial court erred by merging all of his convictions together and
sentencing him on the highest conviction. However, Avington misunderstands his sentence.
Contrary to Avington’s assertion, the trial court did not merge all of Avington’s convictions
together. The trial court dismissed the second degree murder conviction to prevent a double
jeopardy violation with the conviction for first degree murder. Thus, the trial court only merged
Avington’s convictions for first and second degree murder. This merger was proper.
“Multiple convictions and punishments for the same offense imposed in the same
proceeding violate the Fifth Amendment prohibition against double jeopardy.” In re Pers.
Restraint of Strandy, 171 Wn.2d 817, 819, 256 P.3d 1159 (2011). When a conviction violates
double jeopardy principles, it must be wholly vacated. Id.
Here, the convictions for first and second degree murder both resulted from King’s death.
Therefore, these convictions would have resulted in multiple convictions for the same offense. In
order to avoid a double jeopardy violation, the trial court properly vacated Avington’s conviction
for second degree murder.
None of Avington’s other convictions were merged. He received standard range sentences
on his remaining convictions, which were ordered to be served consecutively. The trial court did
not merge all Avington’s convictions together.
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No. 55222-1-II
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3. Self-Defense Instructions
Avington claims that the self-defense jury instruction given was not appropriate for the
assault charges, only the murder charges. We disagree.
Here, the trial court correctly instructed the jury on the standard for self-defense to the
assault charges. However, the trial court did not give Avington’s proposed instruction regarding
acting on appearances in defending himself as it related to the assault charges. The record does
not contain any explanation for why the additional instruction was not given and there is no
objection or exception from Avington’s defense attorney. Generally, challenges to a failure to
give an instruction are waived if no objection is made at the trial court. RAP 2.5(a). Because
Avington did not object to the trial court’s not giving the proposed instruction, the challenge is
waived.
4. Prosecutorial Misconduct
Avington claims that prosecutorial misconduct denied him a fair jury trial. We disagree.
a. Legal principles
To prevail on a claim of prosecutorial misconduct, Avington must show that the
prosecutor’s conduct was improper and prejudicial. Emery, 174 Wn.2d at 756. First, we determine
whether the prosecutor’s conduct is improper. Id. at 759. If the prosecutor’s conduct was
improper, we must then determine whether the conduct was prejudicial. Id. at 760. We determine
whether the defendant was prejudiced under one of two standards of review. Id. “If the defendant
objected at trial, the defendant must show that the prosecutor’s misconduct resulted in prejudice
that had a substantial likelihood of affecting the jury’s verdict.” Id. If the defendant did not object
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No. 55222-1-II
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at trial, the defendant must show that “the prosecutor’s misconduct was so flagrant and ill
intentioned that an instruction could not have cured the resulting prejudice.” Id. at 760-61.
In order to show that the prosecutor’s conduct was so flagrant and ill-intentioned that no
instruction could have cured the resulting prejudice, the defendant must show that “(1) ‘no curative
instruction would have obviated any prejudicial effect on the jury’ and (2) the misconduct resulted
in prejudice that ‘had a substantial likelihood of affecting the jury verdict.’” Id. at 761 (quoting
State v. Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43 (2011)). “Reviewing courts should focus
less on whether the prosecutor’s misconduct was flagrant or ill intentioned and more on whether
the resulting prejudice could have been cured.” Id. at 762.
b. Prosecutor’s conduct not improper
i. Puzzle reference
Avington claims the prosecutor committed misconduct when the prosecutor referenced a
puzzle when discussing the concept of the beyond a reasonable doubt standard.
While references to a puzzle in discussing the “beyond a reasonable doubt” standard may
result in prosecutorial misconduct, this has generally been limited to instances where prosecutors
have quantified the percentage of the puzzle that needed to be completed in order for a jury to find
that a crime was committed beyond a reasonable doubt. State v. Lindsay, 180 Wn.2d 423, 436,
326 P.3d 125 (2014). On the other hand, the prosecutor does not commit misconduct where there
is “no reference to any number or percentage and merely suggested that one could be certain of
the picture beyond a reasonable doubt even with some pieces missing.” Id. at 436.
Here, the prosecutor used an analogy to a puzzle when discussing the “beyond a reasonable
doubt” standard. However, the analogy to a puzzle was not improper because the prosecutor never
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No. 55222-1-II
34
told the jury that a certain percentage of the puzzle needed to be completed in order to find that
the crimes were committed beyond a reasonable doubt. Because the prosecutor simply used the
puzzle as an illustration of reasonable doubt without giving the jury a specific number or
percentage, the prosecutor’s references to a puzzle were not improper.
ii. Arguing facts not in the evidence
Avington claims that the prosecutor committed misconduct because the prosecutor argued
facts that were not in evidence. Specifically, Avington asserts that the prosecutor created a “false
narrative” that self-defense was a plan B and Avington had originally claimed that he was not
involved in the shooting. SAG at 14 (capitalization omitted).7 Avington also claims that the
prosecutor improperly argued that the missing witnesses would never have told the truth and
improperly evaluated their credibility. Both claims fail.
A prosecutor enjoys wide latitude when making a closing argument. State v. Fisher, 165
Wn.2d 727, 747, 202 P.3d 937 (2009). We review allegedly improper comments in context of the
entire argument. Id. A prosecutor is permitted to draw reasonable inferences from the evidence.
State v. Robinson, 189 Wn. App. 877, 893, 359 P.3d 874 (2015). And a prosecutor is permitted to
argue reasonable inferences from the evidence including with respect to the credibility of
witnesses. Thorgerson, 172 Wn.2d at 448. References to evidence outside the record constitutes
misconduct. Fisher, 165 Wn.2d at 747.
First, the prosecutor here did not argue facts not in evidence by referencing self-defense as
a plan B. The record shows that Avington avoided contact with the police after the incident. It is
7 We note that the page numbers in the SAG are not consecutively paginated. For the purposes
of our opinion, we number the SAG’s pages 1-17 starting from the first page of the SAG.
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No. 55222-1-II
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a reasonable inference from this evidence that Avington intended to deny involvement in the
shooting until he was confronted with video evidence of his involvement in the shooting. Because
the prosecutor was arguing reasonable inferences from the evidence, the prosecutor’s comments
were not improper.
Second, the prosecutor did not argue facts outside the evidence by arguing that witnesses
would not have told the truth. Rather, the prosecutor was reiterating an argument made by defense
counsel:
You heard from [a defense counsel] why the State didn’t call Mr. Cooper
or Mr. Legend or any of these people. Because they never would have told you the
truth. They never would have said: “You know what? I love these guys, but, yeah,
what they did wasn’t appropriate; what they did was just malicious.” And so you’re
not going to get those witnesses. But if those witnesses who are tight, as you heard
from these defendants, are tight with these defendants, where are they to back up
what they’re saying? That’s not burden shifting. That’s simply assessing the
credibility of what they have to say.
18 VRP at 2882-83. A prosecutor is entitled to make a fair response to a defense argument so it
was not misconduct for the prosecutor to offer its own assessment of the people who were not
called as witnesses in response to the arguments made by the defense. See State v. Brown, 132
Wn.2d 529, 566, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998). Furthermore, although
it is improper for a prosecutor to offer a personal opinion on the credibility of witnesses, none of
the people the prosecutor referred to testified or were called as witnesses. See State v. Calvin, 176
Wn. App. 1, 19, 316 P.3d 496 (2013), rev. granted in part on other grounds and remanded, 183
Wn.2d 1013 (2015). Accordingly, the prosecutor’s argument was not improper.
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No. 55222-1-II
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iii. Burden shifting on theory of self-defense.
Avington claims that the prosecutor committed misconduct because the prosecutor “flipped
the burden of proof to the defense to prove that there was ‘real threat.’” SAG at 16 (capitalization
omitted). This claim also fails.
To obtain a self-defense jury instruction, the defense must produce some evidence
demonstrating self-defense. State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237 (1997). Once
the defendant meets this burden, the burden shifts to the State to disprove self-defense beyond a
reasonable doubt. Id. “The mere mention that defense evidence is lacking does not constitute
prosecutorial misconduct or shift the burden of proof to the defense.” State v. Jackson, 150 Wn.
App. 877, 885-86, 209 P.3d 553, review denied, 167 Wn.2d 1007 (2009).
Here, the prosecutor’s argument as a whole did not impermissibly shift the burden to the
defense. The prosecutor made extensive arguments evaluating the evidence related to self-defense,
not just a single statement. The prosecutor also clearly stated that it carried the burden of proof
and was evaluating the defendant’s evidence, not shifting the burden. Because the argument as a
whole did not shift the burden of proof, the prosecutor’s argument was not improper.
d. Cumulative error doctrine
Avington claims that the cumulative nature of the prosecutor’s misconduct warrants
reversal. “Under the cumulative error doctrine, a defendant may be entitled to a new trial when
cumulative errors produce a trial that is fundamentally unfair.” Emery, 174 Wn.2d at 766.
However, the cumulative error doctrine does not apply when no error has occurred. State v.
Hodges, 118 Wn. App. 668, 674, 77 P.3d 375 (2003), review denied 151 Wn.2d 1031 (2004).
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No. 55222-1-II
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Avington has identified no errors based on the prosecutor’s conduct. Because Avington
has identified no errors, the cumulative error doctrine does not apply.
We affirm Avington’s convictions and sentence.
Lee, J.
We concur:
Glasgow, C.J.
Price, J.
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