State Of Washington, Respondent V. David Copeland, Sr., Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, 	]) 	No. 67649-1-1
Respondent, 	] 	DIVISION ONE 	o
o
wo
—'cz
c-o
±h2
v. 	] 	UNPUBLISHED OPINION 	7X3
f\> 	^iJz?PO 	~-£-o!—
DAVID CAMPBELL COPELAND, 	j 	;> -o p-j
S co m —,
Appellant. 	] 	FILED: April 22, 2013 	CO
—•a
en 	£<
Grosse, J. — A lesser included offense instruction should be given if the
evidence supports an inference that only the lesser offense was committed.
Here, the State charged David Copeland with felony harassment, which requires
a threat to kill and a reasonable belief that the threat will be carried out. 	Because
a jury could have inferred from the evidence that Copeland threatened and the
victim feared bodily injury, the trial court did not err by instructing the jury on the
lesser 	included 	offense 	of gross 	misdemeanor 	harassment. 	We 	affirm 	the
judgment and sentence.
FACTS
The State charged David Copeland with second degree assault (domestic
violence) and felony harassment (domestic violence) for an incident on February
16, 	2011, 	involving 	his 	girlfriend, 	Shawna 	McCormack. 	McCormack 	and
Copeland began dating in 2007. 	According to McCormack, their relationship was
"really good" until the end of 2008, when Copeland became abusive.

No. 67649-1-1/2
McCormack testified to several instances of violence between her and
Copeland.1 	According to McCormack, in December 2008, Copeland grabbed her
around the neck and pushed her "really hard" while they were arguing. 	Then, in
December 2009, Copeland banged her head against the dashboard of his car. A
year later, Copeland kicked McCormack in the ribs so hard that she flew off their
bed. 	McCormack also testified that a day before the charged incident, Copeland
told her he was going to kill her and her family.2 	The morning of the incident,
McCormack said that Copeland yelled at her that he was going to kill her family
and "put her in a ditch." 	McCormack did not say whether she took these threats
seriously.
Regarding 	the 	charged 	incident, 	McCormack 	testified 	that 	she 	and
Copeland 	had 	dinner at 	home that evening with their one-year-old daughter,
Mary Margaret, and McCormack's seven-year-old daughter, Riley. 	Around 9:00
p.m., Copeland became angry after McCormack asked whether he would attend
a 	meeting 	in Burien. 	According 	to 	McCormack, 	she 	and 	Copeland 	began
arguing, and Copeland told Riley to leave the room. 	Copeland then approached
the chair where McCormack sat holding Mary Margaret and grabbed McCormack
by the throat. 	McCormack said that he "kept pushing hard" until the chair fell
1 The trial court admitted this evidence for the limited purposes of (1) determining
whether McCormack was placed in reasonable fear that the charged threat would
be carried out and (2) assessing McCormack's state of mind and credibility.
2 This threat was recorded on McCormack's sister's voicemail. 	An officer who
heard the voicemail testified that Copeland said, "I can take you, I can take your
fucking life."

No. 67649-1-1/3
backward. 	Copeland picked McCormack up and began choking her again, but
then left the house suddenly.
After Copeland left, McCormack locked the doors to the house out of
concern for 	her safety and 	called 	her sister, 	Julie. 	While 	McCormack was
explaining what had occurred, Copeland returned and began banging on the
doors. 	McCormack asked Julie to come over but not to call the police because
she would 	"get in trouble." 	Copeland 	kicked 	in the 	door and 	entered 	the
bedroom, 	where 	McCormack was 	on 	the 	phone. 	McCormack testified 	that
Copeland picked up a pillow and moved toward her saying, "I'll take your last
breath."
In the following exchange, the prosecutor asked McCormack what she
had been thinking when Copeland threatened her:
Q: 	... [S]o he had a pillow, he was in your bedroom,
and he was threatening to take your last breath?
A: 	Yeah.
Q: 	Did you believe him?
A: 	Yes, more than ever.
Q: 	Well, why, though, because he didn't kill you earlier.
A: 	No, he didn't, but I. . . just - 	I really thought he was --
I mean, 	I was afraid 	he was going to kill me for quite a while,
actually, that's why I didn't leave before.
Q: 	Okay.
A: 	But I just - 	I really thought that was it and I just --
Q: 	What was going through your mind?
A: 	I was thinking, I wish I would have actually had my
sister call the police, but then - 	then all of a sudden there was a
knock at the door, it was the police.
McCormack said that she felt grateful when she saw the police because "I really
was so happy that I wasn't dead. 	... I think they saved my life."

No. 67649-1-1/4
During cross-examination, McCormack admitted that she did not mention
in her statement to 	police that Copeland 	had 	threatened 	to 	"take [her] 	last
breath." 	Nor was that statement contained in the police report.
Deputy Scott Mandella of the King County Sheriff's Office was dispatched
to McCormack's house the night of the incident. 	When he arrived, he talked to
McCormack, who was "sobbing, crying, and her breathing was irregular, and her
speech was choked." 	McCormack told Mandella, "I'm scared he's going to kill
me." 	Mandella said that this statement "came out with a whole lot of emotion
behind 	it." 	Detective 	Andrew 	Skaar, 	another 	officer 	on 	the 	scene, 	said
McCormack told him that Copeland threatened to "end her and her family."
After both 	parties 	rested, 	Copeland 	objected 	to the 	State's 	proposed
lesser included offense instruction on gross misdemeanor harassment. 	The trial
court ruled that sufficient evidence supported giving the instruction and included
it in the instructions to the jury. 	The jury acquitted Copeland of second degree
assault and 	felony 	harassment 	but found 	him guilty of the 	lesser 	included
offense.
Copeland appeals.
ANALYSIS
Lesser Included Offense Instruction
Copeland 	contends the 	trial court erred 	by instructing the jury on the
lesser included offense of misdemeanor harassment. 	A party has a statutory
right to jury instructions on a lesser include offense if (1) each of the elements of

No. 67649-1-1/5
the lesser offense is a necessary element of the offense charged (legal prong)
and (2) the evidence supports an inference that the lesser crime was committed
(factual prong).3 Under the factual prong, we consider all the evidence presented
in the light most favorable to the requesting party.4 	"The evidence must raise an
inference that only the lesser included/inferior degree offense was committed to
the exclusion 	of the charged 	offense."5 	The requesting 	party must point to
affirmative evidence of the lesser offense; "[i]t is not enough that the jury might
simply disbelieve the State's evidence."6 	Where, as here, the factual prong is in
dispute, we review the trial court's decision for an abuse of discretion.7
Because the parties concede that the legal prong is met, the question is
whether there 	was 	affirmative 	evidence 	that 	misdemeanor 	harassment was
committed 	to 	the 	exclusion 	of felony 	harassment. 	A 	person 	is 	guilty of
harassment 	when 	he 	or 	she 	unlawfully 	threatens 	another 	and 	the 	person
threatened reasonably fears that the threat will be carried out.8 	The difference
between misdemeanor harassment and felony harassment lies in the threat.9
Harassment is elevated from a misdemeanor, which requires a threat of bodily
3 RCW 10.61.006; State v. Stevens. 158 Wn.2d 304, 310, 143 P.3d 817 (2006).
4 State v. Fernandez-Medina. 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000).
5 Fernandez-Medina, 141 Wn.2d at 455.
6 State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 (1990).
7 State v. Briqhtman, 155 Wn.2d 506, 519, 122 P.3d 150 (2005); see also State
v. Hunter, 152 Wn. App. 30, 43-44, 216 P.3d 421 (2009), review denied, 168
Wn.2d 1008, 226 P.3d 781 (2010).
8 RCW 9A.46.020.
9RCW9A.46.020(1), (2).

No. 67649-1-1/6
10
harm, to a felony when a defendant threatens to kill. 	The threat made and the
threat feared must be the same.11
McCormack testified that Copeland approached 	her with a 	pillow and
threatened to take her last breath. 	She said that she was afraid that Copeland
was going to kill her. 	The jury also heard that Copeland had threatened to kill
McCormack in the past and that he had injured her on several prior occasions.
From this evidence, a jury could infer that on the night of the incident, Copeland
threatened to injure McCormack and that McCormack feared bodily injury. 	A jury
thus 	could 	have 	rationally 	found 	Copeland 	guilty 	of 	gross 	misdemeanor
harassment and acquitted him of felony harassment. 	The trial court did not err
by instructing the jury on the lesser included offense.
Evidence of Prior Incarceration
Before trial, 	the court granted 	Copeland's motion in limine to exclude
evidence that he had been in jail just before the charged incidents occurred.12
Nevertheless, Riley testified that she began to call Copeland "dad" "when he
came 	back from 	jail." 	The trial 	court instructed 	the jury to disregard her
comment. 	McCormack then testified that she decided to end the relationship
"during the 60 days in which [Copeland] . . . was not there." 	And in closing
argument, the prosecutor stated, "If there's anything good that came out of this
last assault, it's that they lived apart for a couple of months after that." After each
10 State v. Mills, 154 Wn.2d 1, 12, 109 P.3d 415 (2005).
11 State v.C.G., 150 Wn.2d 604, 609, 80 P.3d 594 (2003).
12 Copeland had been in jail for 60 days on drug-related charges.

No. 67649-1-1/7
comment, Copeland moved for a mistrial. 	The trial court declined to grant a
mistrial, explaining: "I do not believe that the information regarding the parties
being apart necessarily connects this defendant with jail. 	And secondly, I don't
believe that the inference that could be drawn concerning confinement is so
prejudicial that this would -- deprives [sic] the defendant of a fair trial."
Copeland 	contends that the 	trial 	court erred 	by 	declining 	to 	grant a
mistrial. 	A trial court's denial of a 	motion for a 	mistrial is reviewed under an
abuse of discretion standard and should only be granted where a "defendant has
been so prejudiced that nothing short of a new trial can insure that the defendant
will 	be tried 	fairly."13 	In 	determining 	whether a trial 	irregularity deprived 	a
defendant of a fair trial, a court considers: (1) the seriousness of the irregularity;
(2) 	whether 	challenged 	evidence 	was 	cumulative 	of 	the 	properly 	admitted
evidence; and (3) whether the irregularity could 	be cured by an instruction to
disregard 	the remark, 	an instruction 	which 	it 	is 	presumed 	a jury follows.14
Because the trial court is in the 	best position to 	most effectively determine
whether a defendant's right to a fair trial has been prejudiced, we give the trial
court's ruling deference on appeal.15
Here, the only direct reference to the fact that Copeland had been in jail
was Riley's testimony. 	That comment was cured by the trial court's instruction to
13 State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996).
14 State v. Babcock, 145 Wn. App. 157, 163, 185 P.3d 1213 (2008) (citing State
y. Escalona, 49 Wn. App. 251, 254, 742 P.2d 190 (1987)).
15 State v. Luvene, 127 Wn.2d 690, 701, 903 P.2d 960 (1995).

No. 67649-1-1/8
the jury to completely disregard it. 	Copeland has not demonstrated that the other
indirect references to Copeland's incarceration were so prejudicial as to warrant
a new trial. The trial court's denial of Copeland's motion for a mistrial was not an
abuse of its discretion.
We affirm the judgment and sentence.
WE CONCUR:
1
t~J 	e 	J. 	^eJ^.
8