State Of Washington, Respondent V. Deng Maer Kumdak, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
THE STATE OF WASHINGTON, ) No. 81184-3-I
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
DENG MAER KUMDAK, )
)
Appellant. )
BOWMAN, J. — The State charged Deng Maer Kumdak with second
degree burglary and third degree assault. At trial, the court admitted homophobic
statements Kumdak made during the incident. Kumdak appeals, arguing the
evidence was not relevant and undue prejudice outweighed any probative value.
We conclude that the evidence was relevant to whether Kumdak was the first
aggressor, the probative value of the evidence outweighed any potential undue
prejudice, and any error was harmless. We affirm the conviction but remand to
amend the judgment and sentence to clarify that the Department of Corrections
may not satisfy Kumdak’s legal financial obligations out of his Social Security
benefits.
FACTS
At around 5:00 p.m. on October 13, 2019, Kumdak tried to buy vodka at
Bartell Drugs. The cashier refused to sell him alcohol because he had sold
Kumdak a bottle of vodka a few hours earlier and Kumdak was obviously

No. 81184-3-I/2
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intoxicated. Kumdak became angry and verbally abusive, swearing at the
cashier. The cashier paged his store manager to come to the front register and
“help explain” why he could not sell Kumdak alcohol.
The manager saw Kumdak “pounding on the counter” and “yelling” and
swearing at the cashier, saying, “ ‘You are gay.’ ” The manager asked Kumdak
to leave and called security when Kumdak refused. As the security guard
approached the counter, he could hear Kumdak “yelling mother fucker.” Kumdak
“spoke in like a feminine voice and made some feminine gestures” and
repeatedly called the cashier “fucking gay.” Kumdak yelled at the cashier, “Why
are you like that” and asked others, “[W]hy is he fucking gay.” The manager
asked security to tell Kumdak to leave.
The security guard told Kumdak to “stop his verbal attack on” the cashier
and to leave the store multiple times. But Kumdak did not leave and threatened
to “fucking kick [his] ass” and take his gun. The security guard told the cashier to
call 911. The situation then escalated into a physical altercation, with the guard
trying to tase Kumdak. The two men “[w]restled” and Kumdak took the Taser
from the guard’s hand. The guard drew his handgun, pointed it at Kumdak’s
chest, and told him to stop resisting and drop the Taser. Instead, Kumdak bent
back the security guard’s thumb “all the way” and tried to break his fingers in an
effort take the gun.
Police arrived and saw the guard straddling Kumdak on the ground. The
guard had his left hand around Kumdak’s neck and his gun in the other hand.
The police arrested Kumdak. The security guard went to the hospital for injuries
to both arms and his right hand and elbow.

No. 81184-3-I/3
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The State charged Kumdak with third degree assault and second degree
burglary. Kumdak argued self-defense. The court instructed the jury that
Kumdak had no right to claim self-defense if they “find beyond a reasonable
doubt that the defendant was the aggressor, and that the defendant’s acts and
conduct provoked or commenced the fight.” The jury acquitted Kumdak of the
assault and burglary charges but convicted him of first degree criminal trespass.
The court imposed a 12-month suspended sentence and 109 days in jail with
credit for time served, leaving Kumdak’s “jail term . . . satisfied.”
Kumdak appeals.
ANALYSIS
Admission of Homophobic Epithets
Kumdak argues that the trial court erred by admitting evidence of his
homophobic statements because they were irrelevant and much more prejudicial
than probative. He claims the statements “undoubtedly materially affected the
outcome of trial.” We disagree.
We review a trial court’s decision to admit or exclude evidence for abuse
of discretion. State v. Gunderson, 181 Wn.2d 916, 922, 337 P.3d 1090 (2014).
A trial court abuses its discretion when a decision is manifestly unreasonable or
based on untenable grounds or reasons. Gunderson, 181 Wn.2d at 922.
Generally, all “relevant evidence” is admissible. ER 402. “Relevant
evidence” has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.” ER 401. The threshold to admit relevant

No. 81184-3-I/4
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evidence is very low, and even minimally relevant evidence is admissible. State
v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002).
The court may exclude relevant evidence “if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.” ER 403; State v. Scherf, 192
Wn.2d 350, 387, 429 P.3d 776 (2018). The party seeking to exclude the
evidence has the burden of proving unfair prejudice. State v. Burkins, 94 Wn.
App. 677, 692, 973 P.2d 15 (1999). Evidence is unfairly prejudicial if it is likely to
elicit “an emotional response rather than a rational decision.” State v. Powell,
126 Wn.2d 244, 264, 893 P.2d 615 (1995). Unfair prejudice is that caused by
evidence of “ ‘ “scant or cumulative probative force, dragged in by the heels for
the sake of its prejudicial effect.” ’ ” Carson v. Fine, 123 Wn.2d 206, 223, 867
P.2d 610 (1994) (quoting United States of Am. v. Roark, 753 F.2d 991, 994 (11th
Cir. 1985) (quoting United States of Am. v. McRae, 593 F.2d 700, 707 (5th Cir.
1979))). We afford trial courts broad discretion “in balancing the probative value
of evidence against its potential prejudicial impact.” State v. Coe, 101 Wn.2d
772, 782, 684 P.2d 668 (1984).
Here, the trial court weighed on the record the probative value of the
testimony against its potential for prejudice. The trial court found Kumdak’s
homophobic statements admissible because they were “relevant to show [his]
alleged level of intoxication and his escalation in the store” and “highly relevant to
the State’s theory of how abusive or violent he ultimately became.” We agree
that the testimony was probative of Kumdak’s level of aggression. And

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Kumdak’s level of aggression was relevant to the issue of whether he was the
first aggressor and, ultimately, the viability of his self-defense claim.1
The court acknowledged that the homophobic statements were “very
prejudicial for sure.” But it concluded that the prejudice did not substantially
outweigh the probative value of the evidence and that it would be difficult to
“sanitize it out” “given how intimately related to the incident itself the words were.”
It pointed out that the statements were “really part and parcel of what’s at least
alleged to have been Mr. Kumdak’s sort of rapid escalation in the store when he
was denied service.” The court also invited Kumdak to “let me know if there are
any curative measures that you think are appropriate.” Kumdak offered none.2
Testimony about Kumdak’s homophobic statements was not of scant or
cumulative probative force, dragged in by the heels for the sake of its prejudicial
effect. Carson, 123 Wn.2d at 223. The trial court did not abuse its discretion in
determining that the statements were admissible.
And even if the prejudice substantially outweighed the probative value of
the evidence, improperly admitted evidence may amount to harmless error.
State v. Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2001). Evidentiary error
1 A “first aggressor” instruction explains to the jury that the State may disprove self-
defense “by proving beyond a reasonable doubt that the defendant provoked the need to act in
self-defense.” State v. Grott, 195 Wn.2d 256, 268, 458 P.3d 750 (2020). The provoking act must
be intentional conduct reasonably likely to provoke a belligerent response. State v. Sullivan, 196
Wn. App. 277, 289-90, 383 P.3d 574 (2016). “[W]ords alone do not constitute sufficient
provocation” for a first aggressor. State v. Riley, 137 Wn.2d 904, 910-11, 976 P.2d 624 (1999).
But words may be relevant in establishing a course of conduct that would support a first
aggressor argument. See Riley, 137 Wn.2d at 908-09; State v. Kee, 6 Wn. App. 2d 874, 880-82,
431 P.3d 1080 (2018).
2 While Kumdak did not ask for a curative instruction, the trial court instructed the jury,
“As jurors, you are officers of this court. You must not let your emotions overcome your rational
thought process. You must reach your decision based on the facts proved to you and on the law
given to you, not on sympathy, prejudice, or personal preference.”

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requires reversal only if it leads to prejudice. Neal, 144 Wn.2d at 611. “An error
is prejudicial if, ‘within reasonable probabilities, had the error not occurred, the
outcome of the trial would have been materially affected.’ ” Neal, 144 Wn.2d at
611 (quoting State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986)).
Improperly admitted evidence is harmless if it is of minor significance in relation
to the evidence as a whole. Neal, 144 Wn.2d at 611.
Here, the jury acquitted Kumdak of both assault and burglary. Instead, it
convicted Kumdak of first degree criminal trespass, which the court instructed the
jury was a lesser included crime of burglary in the second degree. As described
in the jury instruction, a person commits first degree criminal trespass if they
knowingly enter or remain unlawfully in a building. The evidence at trial was
overwhelming that Kumdak unlawfully remained in the store after the manager
and security guard repeatedly told him to leave and that he continued to insult
the cashier. Kumdak then turned his verbal assault on the security guard, which
quickly escalated into a physical altercation. Kumdak’s counsel conceded in
closing argument that Kumdak remained unlawfully in the store but insisted that
Kumdak “didn’t remain unlawfully in Bartell’s with the intent to commit a crime.
He stayed there and probably still wanted his alcohol.” Kumdak fails to show that
evidence of his homophobic epithets materially affect the outcome of the trial.
Any error was harmless.
Modification of Judgment and Sentence
Kumdak requests remand for modification of his judgment and sentence to
reflect that the Department of Corrections cannot satisfy the $500 victim penalty

No. 81184-3-I/7
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assessment imposed against him by withholding Social Security income. The
State has no objection.
Kumdak’s judgment and sentence currently states, “Pursuant to RCW
9.94A.7602, if the defendant is more than 30 days past due in payments, a notice
of payroll deduction may be issued without further notice to the offender.” But
“Social Security benefits [can]not be used for debt retirement.” State v. Dillon, 12
Wn. App. 2d 133, 153, 456 P.3d 1199, review denied, 195 Wn.2d 1022, 464 P.3d
198 (2020) (citing State v. Catling, 193 Wn.2d 252, 266, 438 P.3d 1174 (2019)).
Because Kumdak has no employment, income, or assets and may receive Social
Security benefits in the future, we remand to amend his judgment and sentence
to reflect that the legal financial obligation may not be satisfied out of any funds
subject to the Social Security Act’s anti-attachment statute, 42 U.S.C. § 407(a).
Dillon, 12 Wn. App. 2d at 153; Catling, 193 Wn.2d at 266.
We affirm Kumdak’s conviction for first degree criminal trespass.
WE CONCUR: