State Of Washington, Respondent V Lawrence R. Roussel, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 46657-1-II
Respondent, Consolidated with
v.
LAWRENCE ROLAND ROUSSEL,
Appellant.
In the Matter of the Personal Restraint No. 480671-II
Petition of
LAWRENCE ROLAND ROUSSEL,
UNPUBLISHED OPINION
Petitioner.
WORSWICK, J. — A jury returned verdicts finding Lawrence Roussel guilty of second
degree assault of Gary Fadden and fourth degree assault of Laura Fadden. Roussel appeals his
convictions and sentence, asserting that (1) the trial court erred by failing to instruct the jury on
fourth degree assault as an inferior degree offense to his second degree assault charge, (2) the
trial court violated his confrontation right and right to present a defense by excluding certain
evidence from trial, (3) the trial court erred by failing to exclude evidence that he contends
violated the “Privacy Act,”1 (4) the prosecutor committed misconduct at trial and during closing
1 Ch. 9.73 RCW.
Filed
Washington State
Court of Appeals
Division Two
July 19, 2016

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argument by commenting on his pre-arrest silence and by misstating the State’s burden of proof,
(5) his counsel was ineffective for failing to object to evidence in violation of the Privacy Act
and by failing to object to the prosecutor’s misconduct at closing, and (6) the sentencing court
erred by imposing legal financial obligations (LFOs) without making an individualized inquiry
into his ability to pay the LFOs.
In his statement of additional grounds (SAG) for review, Roussel asserts that (1) the
prosecution withheld evidence from the defense, and (2) there was improper collusion between
the State and his defense counsel. Roussel has also filed a personal restraint petition that we
have consolidated with his direct appeal. In his petition, Roussel asserts that (1) the prosecution
violated the discovery rules by withholding evidence from the defense and (2) the prosecutor
committed misconduct by knowingly presenting perjured testimony and by making false or
misleading statements during closing argument. Finally, Roussel, in a supplemental brief seeks
waiver of appellate costs. We affirm Roussel’s convictions but remand for resentencing for the
trial court to make an individualized inquiry into Roussel’s ability to pay discretionary LFOs
consistent with this opinion. We deny his petition. We also exercise our discretion to waive
appellate costs.
FACTS
On May 27, 2014, Lawrence Roussel and his wife, Rebecca, were in the process of
moving into a trailer home that Rebecca’s parents, Laura and Gary Fadden, had purchased for

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the couple.2 Roussel and Rebecca began arguing in a motor vehicle while Roussel was driving,
and Rebecca told him to pull over. Rebecca exited the vehicle, and Roussel drove away. After
walking for about 45 minutes, Rebecca called Laura to request a ride home. Laura picked
Rebecca up and drove her to the trailer home. When they arrived, Roussel was sleeping. Laura
and the Roussels dispute what happened next.
According to Laura, Roussel was drunk. Rebecca woke Roussel and the couple began
arguing. During the argument, Roussel twice threw Rebecca across the trailer. Laura asked
Roussel to give her back the money she had given the couple for moving expenses, and Roussel
threw money and his wedding ring at her. Roussel prepared to the leave the trailer, but Rebecca
begged him not to go and the couple reconciled. Laura then left the trailer, taking Rebecca’s cell
phone and keys with her.
The Roussels dispute Laura’s account of what transpired at the trailer. According to
Rebecca, she woke Roussel and started “bitching at him.” Report of Proceedings (RP) at 199.
Rebecca admitted that Roussel had consumed three or four beers and that his eyes were
bloodshot. Rebecca denied that Roussel had thrown her across the trailer.
According to Roussel, Laura started screaming at him while Rebecca was waking him up.
Roussel stated that, apart from Laura screaming at him, there were no arguments between any of
them at the trailer. Roussel admitted that he had consumed two or three beers. He denied
throwing Rebecca inside the trailer.
2 Because Laura and Gary Fadden share a last name, this opinion uses their first names for
clarity. Because Lawrence and Rebecca Roussel share a last name, this opinion refers to
Rebecca by her first name. No disrespect is intended.

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Sometime after Laura left the trailer, the Roussels drove to Laura and Gary’s home to
retrieve Rebecca’s cell phone and keys. Again, what happened next was in dispute.
According to Laura, Rebecca came into her house and was belligerent as she demanded
the return of her keys and cell phone. After Rebecca retrieved her phone and keys, Gary told her
to leave the property. Rebecca continued to yell as she left the house, and Laura followed
Rebecca to try to calm her down. Rebecca entered the driver’s seat of her car while Laura spoke
to her. From the car’s passenger seat, Roussel stated that he was “going to choke Gary out,” and
he exited the car. RP at 64. Laura got in front of Roussel, and Roussel picked her up and threw
her to the ground. The back of Laura’s head hit the ground and started bleeding. Laura then saw
Gary come out of the house and grab his walking stick. When Laura stood up, she saw that
Roussel was on top of Gary and was trying to “choke him out” with the walking stick. Gary was
pushing up on the walking stick, which Laura saw was across his chest area, and was yelling at
Laura to call 911. When Laura went in the house and grabbed a phone, Rebecca and Roussel
quickly left the property in Rebecca’s car. Gary then called 911, but Laura convinced him to
hang up before speaking with the 911 operator.
According to Gary, he approached Roussel with the walking stick to protect Laura. Gary
stated that he suddenly found himself on the ground with Roussel on top of him holding the
walking stick across his throat. Gary gasped for breath as he tried to keep the walking stick off
of his throat. Gary feared he would be choked to death, but then Roussel relaxed and stood up.
The Roussels dispute Laura and Gary’s account of what transpired outside the Faddens’
home. According to Rebecca, she stood outside the back door while Laura handed over her

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phone and keys, and then Gary suddenly grabbed a stick and started hitting Rebecca with it.
Gary did not say anything to Rebecca but had a “crazy look in his eyes” while hitting her with
the stick approximately 20 times “all over [her] body.” RP at 205-206, 208. Rebecca stated that
she tried to call 911 but Gary knocked her phone out of her hand, and the phone broke. Roussel
got out of the car and tried to take the stick from Gary. Gary hit Roussel’s back and chest with
the stick. Roussel eventually got the stick from Gary and “threw it as far as he could.” RP at
211. Rebecca did not see Roussel hit Gary with the stick and did not see Roussel do anything to
Laura. After Roussel got the stick from Gary and threw it, the Roussels got in their car and left
the property.
According to Roussel, Gary was striking Rebecca with the walking stick but backed away
when he came to aid her. As Roussel leaned over to help Rebecca, he felt Gary hit him with the
stick on his back and chest. Roussel stated that he then faced Gary who fell backwards onto his
back. Gary then hit Roussel with the stick, whereupon Roussel wrestled the stick from Gary and
threw it into the yard to defuse the situation. Roussel denied throwing Laura on the ground.
Roussel also denied threatening to kill Gary, kneeling on him, or choking him with the stick.
Roussel stated that, after disarming Gary, he and Rebecca quickly left the Faddens’ property
because he knew Gary owned a pistol and other weapons.
Cowlitz County Sheriff’s Sergeant Corey Huffine went to the Faddens’ property in
response to the hung-up 911 call. Huffine took Gary’s and Laura’s statements and photographed
their injuries. Laura had abrasions on the back of her head that were bleeding and an abrasion
below her kneecap. Gary had redness in his neck and chest area. After speaking with the

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Faddens, Huffine attempted to contact the Roussels. After going to the trailer and seeing that no
one was there, Huffine called Rebecca’s cell phone but was unable to reach Rebecca or Roussel.
When Huffine called again the next day, Roussel answered. Roussel told Huffine that he had
already reported the incident and had been seen by a doctor in Portland. Huffine asked for a
copy of his statement and for medical records, and Roussel said he would email “it” to him. RP
at 155. When Huffine told Roussel that his statement had to be made on an official form,
Roussel said he would fill it out at the Clark County courthouse and forward it to him. However,
Roussel did not provide Huffine with his medical records or a written statement. Huffine also
spoke with Rebecca, who said that she would contact him at ten o’clock the next day. However,
Rebecca did not contact Huffine.
On May 29, police arrested Roussel and Rebecca. After their arrest, the Roussels told
Deputy Brady Spaulding that Gary had assaulted them with his walking stick. Spaulding told the
Roussels that they could provide written statements at the jail, and he photographed their
injuries. Neither of the Roussels’ statements mentioned Laura’s injuries or how she had
sustained those injuries. The State charged Roussel with one count of second degree assault for
his alleged conduct against Gary and one count of fourth degree assault for his alleged conduct
against Laura.
Before trial, the State sought to exclude evidence that Rebecca had threatened to accuse
Gary of molesting her. The State told the trial court that after the alleged assault incidents,
Rebecca sent several texts and voice messages to Laura stating that Rebecca would accuse Gary
of molesting her if the Faddens did not immediately sign over the title to the trailer and drop the

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charges against them. As a result of the texts and voice messages, Rebecca pleaded guilty to
attempted first degree theft and attempted second degree extortion. The State argued that
evidence of the accusations was not relevant to Roussel’s charges and that the evidence was
extremely prejudicial.
In response, defense counsel stated that Rebecca had accused Gary of molesting her long
before the alleged assault incidents and that her threats were to exaggerate her molestation claims
to accuse Gary of rape if the Faddens refused to meet her demands. Defense counsel argued that
Rebecca’s molestation accusations were relevant to show that Gary had a motive to assault her,
which supported Roussel’s self-defense claim. The trial court excluded the proposed evidence,
stating that, even if relevant, its probative value was outweighed by the danger of unfair
prejudice.
At trial, the State called Laura, Gary, Huffine, and Spaulding. Each testified consistently
with the facts as stated above. The following exchange occurred during Huffine’s testimony:
[State]: What did you tell [Roussel]?
[Huffine]: Well, I needed to talk to him. I needed to get his side of the
story, take statements.
[State]: What did [Roussel] say?
[Huffine]: He said that he had already reported everything and that he’d
been seen by a doctor in Portland.
[State]: Okay. Did you ever receive a report from him?
[Huffine]: No.
[State]: Did you ask for anything?
[Huffine]: I asked him—I told him that I would need to get a signed medical
release, a copy of the medical records, and needed to get a written statement
from him.
[State]: What did he say?
[Huffine]: He said he would fax it to me.
[State]: Did he ask for your fax number?
[Huffine]: No.

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[State]: What did he say?
[Huffine]: Well, when I—I told him that I needed to have—or he said he
was going to e-mail me his statement and I told him I needed to have it on
paper that said, “Under penalty of perjury,” and he said that he would go to
the Clark County Courthouse and fill it out there, and have it forwarded to
me.
[State]: Did he ever do that?
[Huffine]: No.
RP at 154-55.
After the State rested, defense counsel requested the trial court to revisit its ruling
excluding evidence of Rebecca’s molestation accusations against Gary, arguing that the evidence
was relevant to show the reason why the Faddens had purchased the trailer for the Roussels. The
trial court adhered to its earlier ruling excluding the evidence.
The defense called Rebecca and Roussel as witnesses, and each testified consistently with
the facts as stated above. After the defense rested, the State recalled Laura and Huffine to rebut
Rebecca’s testimony about how she had obtained her injuries. Laura testified in rebuttal that
Rebecca was injured when Roussel twice threw her in the trailer.
Huffine testified that he listened in on a phone conversation between Laura and Rebecca,
and heard Rebecca claim that Gary had injured her with the walking stick. At this point, defense
counsel raised a hearsay objection, which the trial court overruled. Huffine then stated that
Laura responded to Rebecca’s claim by stating that Rebecca had received those injuries while
being thrown around the trailer by Roussel. Rebecca started screaming and told Laura, “You
better not bring that up or you’re going down.” RP at 309-310.
After the close of evidence, defense counsel requested the trial court to instruct the jury
on fourth degree assault as an inferior degree offense to Roussel’s second degree assault charge.

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The trial court declined defense counsel’s request, concluding that there was no evidence that
Roussel committed fourth degree assault against Gary to the exclusion of second degree assault.
During closing, the State argued:
[The Roussels] haven’t called the police. Only thing they did was go to the doctor,
or they claim they went to the doctor. They claim they went to the doctor. We
don’t have the doctor here, but they claim they went to the doctor, and said they
had all these injuries. But those weren’t reported immediately.
. . . .
And basically, they don’t report [that Gary had assaulted them] until they’re
being arrested, which, of course, is suspicious because everyone involved in a fight,
the immediate claim is, “Well, we were in self-defense.” And so at that time, they
finally tell the police. They had two days [to report Gary’s alleged assault, but]
they didn’t.
RP at 374-76. During closing, the State also discussed the Faddens’ and the Roussels’ differing
accounts of what had transpired at the Faddens’ home, arguing that the Faddens’ version was
more credible based on the evidence presented at trial and based on the Faddens’ demeanor when
testifying. For example, the State argued:
So you have these two competing versions. When you have two different
versions of what happened, how can you know what happened? Well, you—you
need to examine the evidence . . . .
And you got to hear from the Faddens, and then the Defendant and
[Rebecca], and you get to evaluate, and that’s the jury’s job, evaluate their
credibility, who is telling the truth? And here, they can’t both be—the stories just
contradict too much.
. . . .
When you hear from the Faddens, though, you hear from Laura Fadden.
Did she come across like someone who was hiding something?
. . . .
You heard from [Gary], and there was a moment in court that doesn’t come
along every moment in court—every day. I mean, you had him, he’s testifying,
and he just breaks down and cries. A very difficult moment, very sad to see a man
in here, crying on the witness stand. . . . But the emotion told you how real it was.
. . . [Y]ou remember that moment and ask yourself, was he lying?

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RP at 363-64, 387-88. Finally, in rebuttal, the State argued:
Now, the issue in this case really does come down to who you believe, Laura
Fadden and Gary Fadden or the Defendant and his wife. You heard them testify
and you heard what they had to say, and that’s really the issue. And then everything
else kind of just falls from—follows from there. That’s really the issue. Because
what [the Fadden’s] described is [Roussel] trying to strangle [Gary] with a deadly
weapon. What [Roussel] described is [Gary] trying to kill his daughter with a stick,
whacking her completely out of nowhere, not in response to an argument or
anything. His own daughter, hitting her in the face, something she says he’s never
done before. It made no sense whatsoever. Why would he do that? There’s
absolutely—it’s just so out of left field, what they’re claiming.
RP at 412. The jury returned verdicts finding Roussel guilty of second degree assault and fourth
degree assault. The jury also returned special verdicts finding that Roussel committed both
offenses against members of his family and that he committed second degree assault while armed
with a deadly weapon.
At sentencing, the trial court imposed $2,125 in legal financial obligations (LFOs)
without conducting any inquiry into Roussel’s ability to pay the LFOs. Roussel appeals from his
convictions and resulting sentence.
ANALYSIS
I. FOURTH DEGREE ASSAULT INSTRUCTION
Roussel first contends that the trial court erred by failing to instruct the jury on fourth
degree assault as an inferior-degree offense to his second degree assault charge. Because the
evidence at trial did not support Roussel’s request to instruct the jury on the inferior offense of
fourth degree assault, we disagree.

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A trial court may properly instruct a jury on an offense that is inferior to a charged
offense when:
“(1) the statutes for both the charged offense and the proposed inferior degree
offense ‘proscribe but one offense’; (2) the information charges an offense that is
divided into degrees, and the proposed offense is an inferior degree of the charged
offense; and (3) there is evidence that the defendant committed only the inferior
offense.”
State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000) (quoting State v. Peterson,
133 Wn.2d 885, 891, 948 P.2d 381 (1997)); RCW 10.61.003. The parties disagree only as to
whether the evidence at trial was sufficient to show that Roussel “committed only the inferior
offense” and, thus, our resolution of this issue requires analysis of only this third requirement,
also known as the factual component. Fernandez-Medina, 141 Wn.2d at 454 (quoting Peterson,
133 Wn.2d at 891). Because only the factual component is at issue here, we review the trial
court’s refusal to instruct the jury on the inferior degree offense of fourth degree assault for an
abuse of discretion. State v. LaPlant, 157 Wn. App. 685, 687, 239 P.3d 366 (2010) (citing State
v. Walker, 136 Wn.2d 767, 772, 966 P.2d 883 (1998)).3
3 Roussel asserts that our review should be de novo because the trial court committed an error of
law by concluding that Roussel’s self-defense claim precluded instructing the jury on the inferior
degree offense of fourth degree assault. But the trial court did not rule that instructing the jury
on an inferior degree offense was precluded as a matter of law due to Roussel’s self-defense
claim. Rather, the trial court examined the evidence at trial, including evidence in support of
Roussel’s self-defense claim, and determined that the evidence was insufficient to support an
instruction on fourth degree assault as an inferior offense to second degree assault. Moreover,
under either standard of review, our result would be the same. When examining whether
evidence at trial was sufficient to meet the factual component of the inferior degree offense test,
we do not defer to any credibility determinations or weighing of evidence by the trial court.
Rather, we view the evidence in a light most favorable to the party requesting the inferior degree
offense instruction. Fernandez-Medina, 141 Wn.2d at 455-56.

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When reviewing whether the evidence at trial was sufficient to support the trial court
instructing the jury on an inferior degree offense, we view the evidence in a light most favorable
to the party that requested the instruction, here Roussel. Fernandez-Medina, 141 Wn.2d at 455-
56. “[A] requested jury instruction on a lesser included or inferior degree offense should be
administered ‘[i]f the evidence would permit a jury to rationally find a defendant guilty of the
lesser offense and acquit him of the greater.’” Fernandez-Medina, 141 Wn.2d at 456 (quoting
State v. Warden, 133 Wn.2d 559, 563, 947 P.2d 708 (1997)). We must consider all evidence
presented at trial when determining whether an inferior degree offense instruction should have
been given, but the evidence must affirmatively establish that the defendant committed only the
inferior degree offense—“it is not enough that the jury might disbelieve the evidence pointing to
guilt.” Fernandez-Medina, 141 Wn.2d at 456.
Here the State charged Roussel with second degree assault under RCW 9A.36.021(1)(c)
and RCW 9A.36.021(1)(g), requiring the State to prove beyond a reasonable doubt that he either
assaulted Gary with a deadly weapon or assaulted Gary by strangulation or suffocation. In
contrast, to convict Roussel of the inferior degree offense of fourth degree assault for his conduct
against Gary, the State would have had to prove beyond a reasonable doubt that he assaulted
Gary under circumstances not amounting to assault in the first, second, or third degree, or
custodial assault. RCW 9A.36.041. Accordingly, for Roussel to have been entitled to an
instruction on the inferior degree offense of fourth degree assault, there must have been
affirmative evidence at trial that Roussel assaulted Gary but that such assault was not committed
with a deadly weapon or by strangulation or suffocation.

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Viewed in a light most favorable to Roussel, there was no evidence presented at trial
showing that he committed only fourth degree assault against Gary to the exclusion of second
degree assault. Roussel cites to two portions of the evidence presented at trial that he argues
supports a jury finding that he had committed only fourth degree assault against Gary.
First, Roussel argues that Laura’s testimony that she saw Roussel on top of Gary pushing
down on the walking stick “across [Gary’s] chest area” was affirmative evidence that Roussel
committed only fourth degree assault. RP at 68. But Laura stated that the manner in which
Roussel was pressing down on the stick at that moment was to “choke [Gary] out.” RP at 68.
And RCW 9A.04.110(6) defines “[d]eadly weapon” in relevant part as any “weapon, device,
instrument, article, or substance . . . which, under the circumstances in which it is used,
attempted to be used, or threatened to be used, is readily capable of causing death or substantial
bodily harm.” Thus, even assuming that Laura’s testimony regarding the portion of the assault
see had seen,4 in which Gary was successfully resisting Roussel’s attempt to “choke him out,”
was affirmative evidence that Roussel had assaulted Gary but not by strangulation or suffocation,
it was not affirmative evidence that he had assaulted Gary without a deadly weapon. RP at 68.
Because Laura’s testimony did not constitute affirmative evidence that Roussel assaulted Gary
with a walking stick in a manner that was not readily capable of causing Gary death or
4 Laura testified that she did not see the entirety of Roussel’s and Gary’s altercation because she
was standing up from the ground after Roussel had knocked her over. From the ground, Laura
saw Gary retrieve his walking stick and then, after standing up, the next thing she saw was
Roussel on top of Gary.

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substantial bodily harm, it did not support instructing the jury on fourth degree assault as an
inferior degree offense to Roussel’s second degree assault charge.5
Second, Roussel argues, and the dissent agrees, that the jury could have acquitted him of
second degree assault and found him guilty of fourth degree assault against Gary based on
Gary’s testimony that Roussel had pushed him to the ground. But Gary did not testify that
Roussel pushed him to the ground. Rather, Gary testified as follows:
I went out with [Roussel] and towards him, and I was going to protect Laura. And
then he come after me, and it doesn’t take much to knock me on the ground, I’ll tell
you, and the next thing I know, I’m on the ground and that he’s on top of me, and
I’ve got that walking stick—it’s across my throat and, you know, I’m gasping for
breath and trying to keep it off my neck, and it was rubbing right in here.
RP at 110. Nowhere within this testimony does Gary state that Roussel pushed him to the
ground. And Roussel denied pushing Gary to the ground, testifying that after he “squared off”
with Gary, “[Gary] took two steps back and fell backwards on his back.” RP at 272-73. But the
dissent nonetheless relies solely on Gary’s above testimony to conclude that a jury could
reasonably infer that Roussel had pushed Gary to the ground and, thus, would reverse Roussel’s
second degree assault conviction based on the trial court’s perceived error in failing to give
Roussel’s proposed fourth degree assault instruction.6
5 Contrary to the dissent’s position, we cannot discern how Laura’s testimony could support “a
reasonable inference” that Roussel did not use the walking stick to either strangle Gary or in a
manner readily capable of causing Gary substantial bodily harm. State v. Halm, 174 Wn.2d 126,
129, 271 P.3d 892 (2012) (emphasis added).
6 Contrary to the dissent’s assertion, we do not “assume that the jury’s only choice was between
believing Gary’s entire testimony or believing Roussel’s entire testimony.” Dissent at 42.

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In State v. Hahn, 162 Wn. App. 885, 902, 256 P.3d 1267 (2011), rev’d, 174 Wn.2d 126,
271 P.3d 892 (2012), we held that the defendant’s statements that he wanted the victim to
“disappear” was sufficient to instruct the jury on solicitation of fourth degree assault as a lesser
included offense to solicitation of first degree murder. On review, our Supreme Court agreed
that “disappear” could have a nonhomicidal meaning but nonetheless reversed our decision,
stating that this “inferential leap to mere fourth degree assault is too great even when the
evidence is interpreted in Hahn’s favor.” Hahn, 174 Wn.2d at 130.7 The dissent, however, takes
the “inferential leap” disapproved of in Hahn a step further, and would hold the jury could infer
that Roussel committed only a fourth degree assault absent any testimony that such assault had
occurred. 174 Wn.2d at 130.
The dissent’s interpretation of allowable inferences to meet the factual component of the
inferior degree offense test does not comport with Hahn and would entitle any defendant charged
with second degree assault by deadly weapon or strangulation to an inferior degree fourth degree
assault instruction. A person may commit fourth degree assault by unlawfully touching another
in a harmful or offensive manner, or through intentional conduct putting another in apprehension
of harm. RCW 9A.36.041; State v. Elmi, 166 Wn.2d 209, 215, 207 P.3d 439 (2009). It is likely
that any victim of an assault by deadly weapon would apprehend harm at the point the
Instead, we merely disagree with the dissent that any portion of Gary’s testimony supported the
reasonable inference that Roussel had pushed him to the ground.
7 Although Hahn, 174 Wn.2d 126 addressed whether the defendant was entitled to a lesser
included jury instruction, the analysis applies equally to the issue of whether Roussel was
entitled to an inferior degree jury instruction because the factual component of those tests are
identical. Fernandez-Medina, 141 Wn.2d at 455.

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perpetrator approaches the victim with the deadly weapon. It is also likely that a person
committing assault by strangulation would touch the victim in an offensive manner prior to
actually strangling the victim.
Under the dissent’s view of allowable inferences, which would permit a jury to infer
conduct constituting a fourth degree assault absent any actual testimony that such assault
occurred, any testimony supporting a charge for second degree assault by deadly weapon or
strangulation would necessarily support the inference that the defendant committed only a fourth
degree assault. We reject this approach and hold that Gary’s testimony that “it doesn’t take
much to knock me on the ground, I’ll tell you, and the next thing I know I’m on the ground and
that he’s on top of me” did not create a reasonable inference that Roussel pushed Gary to the
ground and, thus, did not warrant instructing the jury on fourth degree assault as an inferior
degree offense to second degree assault.
Because Roussel fails to identify any affirmative evidence in the record supporting a jury
finding him guilty of only fourth degree assault against Gary, the trial court properly refused to
instruct the jury on fourth degree assault as an inferior degree offense to second degree assault.

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II. RIGHT TO PRESENT A DEFENSE/RIGHT TO CONFRONTATION
Next, Roussel contends that the trial court violated his right to present a defense and
confrontation right by excluding evidence that Rebecca had accused Gary of molesting her. We
disagree.
A. Right To Present a Defense
A defendant in a criminal trial has a constitutional right to present a defense. State v.
Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992). However, a criminal defendant’s right to
present a defense is not absolute; a defendant seeking to present evidence must show that the
evidence is at least minimally relevant to a fact at issue in the case and is otherwise admissible.
State v. Aguirre, 168 Wn.2d 350, 362-63, 229 P.3d 669 (2010); State v. Jones, 168 Wn.2d 713,
720, 230 P.3d 576 (2010). Evidence is relevant if it 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.
If the defendant establishes the minimal relevance of the evidence sought to be presented,
the burden shifts to the State “to show the evidence is so prejudicial as to disrupt the fairness of
the fact-finding process at trial.” State v. Darden, 145 Wn.2d 612, 622, 41 P.3d 1189 (2002). A
trial court must then balance “the State’s interest to exclude prejudicial evidence . . . against the
defendant’s need for the information sought,” and may exclude such evidence only where “the
State’s interest outweighs the defendant’s need.” Darden, 145 Wn.2d at 622. We review a trial
court’s ruling excluding evidence for an abuse of discretion even where the evidentiary ruling

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implicates constitutional rights. State v. Franklin, 180 Wn.2d 371, 377 n. 2, 325 P.3d 159
(2014).
Roussel asserts that evidence of Rebecca’s molestation accusations was relevant to show
Gary’s motive in assaulting her with his walking stick, which in turn supported Roussel’s claim
that Gary was the first aggressor and that Roussel was defending Rebecca against Gary’s assault.
Even assuming that evidence of Rebecca’s molestation accusations against Gary meets the low
threshold of relevance under ER 401, we conclude that the trial court did not abuse its discretion
by finding that the prejudicial nature of the evidence outweighed its probative value.
First, contrary to Roussel’s argument, the probative value of the proffered evidence was
low. Although evidence that Rebecca had “on a few occasions [over] the last fifteen years”
accused Gary of molesting her tended to show a motive for Gary hitting her with his walking
stick, the relationship between these past accusations and Rebecca’s claim that Gary suddenly
and repeatedly hit her with his walking stick was attenuated at best. RP at 24. There was
nothing presented to the trial court linking Rebecca’s past molestation accusations with Gary’s
alleged conduct on the day of the incident.8 Moreover, the trial court’s ruling excluding
evidence of Rebecca’s molestation accusations did not prevent defense counsel from presenting
evidence regarding the dynamics of Rebecca’s damaged relationship with her parents, Gary in
particular, which evidence could have supplied a motive for Gary’s alleged conduct absent the
prejudice inherent in an accusation of sexual misconduct.
8 The record does not support Roussel’s claim that he sought to introduce evidence that Rebecca
“was shouting about the [molestation] accusation in [Gary’s] yard.” Br. of Appellant at 13
(citing RP at 23-25).

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Second, the prejudicial nature of Rebecca’s molestation accusations against Gary was
high, as such accusations would likely elicit an emotional response from the jury. See, e.g., State
v. Powell, 126 Wn.2d 244, 264, 893 P.2d 615 (1995) (“When evidence is likely to stimulate an
emotional response rather than a rational decision, a danger of unfair prejudice exists.”); State v.
Baker, 89 Wn. App. 726, 736, 950 P.2d 486 (1997) (jury likely to convict based solely on
character when it hears evidence that defendant engaged in prior acts of child molestation).
Given the low probative value of the evidence Roussel sought to admit against its highly
prejudicial nature, we cannot say that the trial court abused its discretion by excluding the
evidence. Accordingly, Roussel does not show that his right to present a defense was violated by
the trial court’s evidentiary ruling.
B. Confrontation Right
Roussel also argues that the trial court’s ruling excluding evidence of Rebecca’s
molestation accusations violated his right to confront witnesses. But, as with the right to present
a defense, the right to confront a witness is not unfettered and is subject to the same limitations
as with the right to present a defense, namely: “(1) the evidence sought must be relevant and (2)
the defendant’s right to introduce relevant evidence must be balanced against the State’s interest
in precluding evidence so prejudicial as to disrupt the fairness of the trial.” Darden, 145 Wn.2d
at 621. Because the prejudicial nature of Rebecca’s molestation accusations greatly outweighed
its low probative value, the trial court properly excluded the evidence and did not violate
Roussel’s confrontation right.

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III. PRIVACY ACT
Next, Roussel contends that Huffine’s testimony about what he overheard during a
telephone conversation between Laura and Rebecca requires reversal of his convictions because
the testimony was inadmissible under the Privacy Act, chapter 9.73 RCW. But Roussel did not
object to Huffine’s testimony at trial, and a challenge to evidence obtained in violation of the
Privacy Act is not an issue of constitutional magnitude that a defendant may raise for the first
time on appeal. RAP 2.5(a)(3); State v. Corliss, 123 Wn.2d 656, 661, 870 P.2d 317 (1994)
(whether Washington’s Privacy Act has been violated requires a very different inquiry than
whether the defendant’s constitutional rights were violated); State v. Clark, 129 Wn.2d 211,
221-22, 916 P.2d 384 (1996) (where one participant in a conversation has consented to the
interception of a conversation, such interception does not violate our state or federal
constitutions). Accordingly, we decline to review for the first time on appeal Roussel’s claim
that Huffine’s testimony violated the Privacy Act.
IV. PROSECUTORIAL MISCONDUCT
Next, Roussel contends that the prosecutor committed several instances of misconduct at
trial and during closing argument. Specifically, Roussel contends that the prosecutor committed
misconduct by commenting on his pre-arrest silence and by misstating the burden of proof. We
disagree.
To establish prosecutorial misconduct, Roussel must first show that the prosecutor’s
conduct was improper. State v. Emery, 174 Wn.2d 741, 759, 278 P.3d 653 (2012). Roussel must
then show that the prosecutor’s improper conduct resulted in prejudice that had a substantial

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likelihood of affecting the verdict. Emery, 174 Wn.2d at 760. Additionally, because Roussel did
not object at trial to any of the prosecutor’s conduct that he now challenges on appeal, he must
also show that the prosecutor’s conduct “was so flagrant and ill intentioned that an instruction
could not have cured the resulting prejudice.” Emery, 174 Wn.2d at 760-61. We review a
prosecutor’s comments at closing in the context of the entire argument, the issues in the case, the
evidence addressed in the argument, and the instructions to the jury. State v. McKenzie, 157
Wn.2d 44, 52, 134 P.3d 221 (2006).
A. Pre-Arrest Silence
Roussel asserts that the prosecutor improperly commented on his pre-arrest silence by
eliciting evidence that he failed to turn over to police his medical records and a statement under
penalty of perjury and by arguing at closing that his self-defense claim was “suspicious” in light
of his failure to report Gary’s alleged assault until after he was arrested. RP at 376. We agree
that the prosecutor committed misconduct by eliciting evidence that Roussel failed to provide his
medical records and statement to police, but we hold that the misconduct was not so flagrant and
ill-intentioned that an instruction could not have cured any resulting prejudice. We disagree that
the prosecutor committed misconduct during closing arguments.
The Fifth Amendment privilege against self-incrimination prohibits the State from using
a defendant’s pre-arrest silence as substantive evidence of guilt. State v. Burke, 163 Wn.2d 204,
217, 181 P.3d 1 (2008). But where a defendant testifies at trial, the State may use the
defendant’s pre-arrest silence as impeachment evidence. Burke, 163 Wn.2d at 217.
Roussel first contends that the prosecutor’s question to Huffine regarding whether
Roussel followed up on his statement that he would turn over his medical records and a

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statement under penalty of perjury to police improperly suggested that the jury could find him
guilty based on his pre-arrest silence. We agree but hold that the improper question was not so
flagrant and ill-intentioned that an instruction could not have cured any resulting prejudice.
As an initial matter, we note that the prosecutor’s question to Huffine occurred during its
case in chief, before Roussel elected to testify in his defense. Accordingly, the evidence of
Roussel’s pre-arrest silence sought to be elicited by the prosecutor’s question was not yet
admissible as impeachment evidence. See State v. Easter, 130 Wn.2d 228, 237, 922 P.2d 1285
(1996) (“The cases that have permitted testimony about the defendant’s silence have done so
only for the limited purpose of impeachment after the defendant has taken the stand.”) (emphasis
added); State v. Lewis, 130 Wn.2d 700, 706 n. 2, 927 P.2d 235 (1996) (Rejecting appellate
court’s conclusion that evidence of silence was admissible due to defendant’s subsequent
decision to testify, reasoning that “[i]f evidence of silence comes in to show guilt in the State’s
case in chief, then a defendant may be forced to testify to rebut such an inference.”). The
prosecutor’s question asking Huffine whether Roussel had provided to police his medical records
and a statement under penalty of perjury was improper because it sought to elicit evidence
suggesting Roussel’s guilt based on the exercise of his right to silence. The prosecutor’s
improper question and Huffine’s answer thereto were also prejudicial. Roussel’s defense theory
was that Gary was the initial aggressor and that Roussel’s conduct was taken to defend Rebecca
from Gary’s assaults. Huffine’s response to the prosecutor’s improper question allowed the jury
to infer that, by failing to submit his medical records and a statement under penalty of perjury to

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police, Roussel’s claim of acting in defense of Rebecca was false. We therefore hold that the
prosecutor committed misconduct by eliciting such evidence.
Although the prosecutor’s question to Huffine constituted misconduct, the misconduct
was not so flagrant and ill-intentioned that an instruction could not have cured the resulting
prejudice. Prosecutorial misconduct is “not per se incurable simply because [the misconduct]
touch[es] upon a defendant’s constitutional rights.” Emery, 174 Wn.2d at 763. When
determining whether a prosecutor’s misconduct requires reversal absent an objection, we “focus
less on whether the prosecutor’s misconduct was flagrant or ill intentioned and more on whether
the resulting prejudice could have been cured.” Emery, 174 Wn.2d at 762. Here, the
prosecutor’s improper question prejudiced Roussel by allowing the jury to infer his guilt based
on the failure to submit his medical records and statement to police. This prejudice could have
been cured by instructing the jury to disregard the prosecutor’s question and Huffine’s answer
thereto. Here, the prosecutor properly elicited evidence that Roussel had stated he would submit
his medical records and a statement under penalty of perjury to Huffine. Although the
prosecutor’s brief follow-up question asking, “Did he ever do that?” was improper because it
sought to elicit evidence touching upon Roussel’s right to silence, we cannot conclude that it had
such an “‘inflammatory effect’” so as to “engender[] an incurable feeling of prejudice in the
mind of the jury.” Emery, 174 Wn.2d at 762-63 (quoting State v. Perry, 24 Wn.2d 764, 770,
167 P.2d 173 (1946)). The prosecutor’s improper question sought only a yes or no answer and
did not seek Huffine’s opinion as to why Roussel had failed to follow up on his statement that he
would turn over medical records and a statement to police. And the improper question and

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answer thereto, while inferring Roussel’s guilt based on pre-arrest silence, did not explicitly
require the jury to draw this conclusion. Finally, the improper reference to Roussel’s pre-arrest
silence was not again raised at trial prior to Roussel electing to testify. Accordingly, we hold
that Roussel does not demonstrate reversible error based on the prosecutor’s misconduct.
Next, Roussel contends that the following argument at closing improperly commented on
his pre-arrest silence:
[The Roussel’s] don’t report [that Gary had assaulted them] until they’re being
arrested, which, of course, is suspicious because everyone involved in a fight, the
immediate claim is, “Well, we were in self-defense.” And so at that time, they
finally tell the police. They had two days [to report Gary’s alleged assault, but]
they didn’t.
RP at 376. Here, Roussel testified at trial that Gary was the initial aggressor and that his conduct
against Gary was to defend Rebecca against Gary’s assaults. Because Roussel provided this
testimony at trial, the State was permitted to comment on his pre-arrest silence to impeach the
testimony. Accordingly, there was nothing improper with the State’s argument that the jury
could question the credibility of Roussel’s self-defense claim based on his failure to report
Gary’s alleged assault to the police. Roussel thus fails to demonstrate prosecutorial misconduct
on this ground.
B. Burden of Proof
Next, Roussel asserts that the prosecutor committed misconduct during closing argument
by misstating the burden of proof. Specifically, Roussel asserts that the prosecutor misstated the
burden of proof by (1) making an improper missing witness argument and (2) suggesting that it
was the jury’s duty to determine which version of facts to believe.

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1. Missing Witness Argument
“A criminal defendant has no burden to present evidence, and it is error for the State to
suggest otherwise.” State v. Montgomery, 163 Wn.2d 577, 597, 183 P.3d 267 (2008). But,
“[w]hen a defendant advances a theory exculpating him, the theory is not immunized from
attack. On the contrary, the evidence supporting a defendant’s theory of the case is subject to the
same searching examination as the State’s evidence.” State v. Contreras, 57 Wn. App. 471, 476,
788 P.2d 1114 (1990). Citing to Montgomery, Roussel contends that the following argument
improperly shifted the burden to him to produce a missing witness:
[The Roussels] haven’t called the police. Only thing they did was go to the doctor,
or they claim they went to the doctor. They claim they went to the doctor. We
don’t have the doctor here, but they claim they went to the doctor, and they had all
these injuries. But those weren’t reported immediately.
RP at 374-75. Roussel’s reliance on Montgomery is misplaced. Montgomery addressed the trial
court’s error in giving a missing witness instruction that permitted the jury to infer that missing
witnesses would have given testimony unfavorable to the defense. 163 Wn.2d at 598-99. Here,
the prosecutor (1) did not request a missing witness instruction, (2) did not argue that Roussel
had any burden to produce the doctor to corroborate his claim of having sought medical
attention, (3) did not suggest that the jury could infer that the doctor would have provided
testimony unfavorable to Roussel, and (4) did not suggest Roussel’s guilt based on the failure to
present the doctor’s testimony at trial. Instead the prosecutor merely argued that, because
Roussel’s treating doctor did not testify at trial, the jury had only the Roussels’ testimony to
evaluate Roussel’s claim that they had, in fact, sought medical attention following the incident
with the Faddens. Because Roussel testified in his defense at trial, the State was permitted to

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comment on his credibility as with any other witness. See, e.g., State v. Martin, 171 Wn.2d 521,
527-28, 252 P.3d 872 (2011) (“‘[W]hen a defendant takes the stand, his credibility may be
impeached and his testimony assailed like that of any other witness.’”) (internal quotation marks
omitted) (quoting Portuondo v. Agard, 529 U.S. 61, 69, 120 S. Ct. 1119, 146 L. Ed. 2d 47
(2000)); State v. Berube, 171 Wn. App. 103, 118, 286 P.3d 402 (2012). Roussel thus fails to
demonstrate prosecutorial misconduct on this ground.
2. Differing Versions of Events
Next, Roussel contends that “the prosecutor mischaracterized the burden of proof by
arguing that the jury’s task was to decide which version of events to believe.” Br. of Appellant
at 25. We disagree.
“[I]t is improper for the prosecutor to argue that in order to acquit a defendant or to
believe a defendant’s testimony, the jury must find the State’s witnesses are lying.” State v.
Vassar, 188 Wn. App. 251, 260, 352 P.3d 856 (2015). Such an argument misrepresents the
State’s burden of proof by improperly stating the basis on which a jury can acquit. Vassar, 188
Wn. App. at 260; State v. Fleming, 83 Wn. App. 209, 213, 921 P.2d 1076 (1996). However, it is
not improper for a prosecutor “to comment on a defendant’s failure to support her own factual
theories,” and there “‘is nothing misleading or unfair in stating the obvious: that if the jury
accepts one version of the facts, it must necessarily reject the other.’” Vassar, 188 Wn. App. at
260-61 (quoting State v. Wright, 76 Wn. App. 811, 825, 888 P.2d 1214 (1995)).
Roussel argues that, by characterizing the Faddens’ and Roussels’ testimony as “two
different versions of what happened,” stating it was the jury’s job to evaluate the witnesses’

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credibility, and arguing that the Faddens’ version was more credible, the prosecutor
misrepresented its burden of proof. RP at 363. But the prosecutor did not argue that the jury had
to find the Roussels’ testimony credible to acquit Roussel of his charges, and the prosecutor did
not argue that by finding the Faddens’ testimony more credible, the jury was required to convict
Roussel of his charges. Rather, the prosecutor merely argued that the versions of events testified
to by the Faddens and the Roussels were incompatible with each other and that the jury should
find the Faddens’ testimony more credible based on the evidence at trial and the demeanor of the
testifying witnesses. There was nothing improper about this argument as it did not diminish the
State’s burden of proving every element of the charged crimes beyond a reasonable doubt.
Accordingly, Roussel fails to demonstrate prosecutorial misconduct.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
Next, Roussel contends that his defense counsel was ineffective for failing to object to (1)
the prosecutor’s alleged misconduct, (2) Huffine’s testimony about what he had overheard
during a telephone conversation between Laura and Rebecca, and (3) Huffine’s testimony that
the Faddens’ testimony was consistent with statements they had provided him. Again, we
disagree.
To demonstrate ineffective assistance of counsel, Roussel must show both deficient
performance and resulting prejudice. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80
(2004). To show deficient performance, Roussel must show that defense counsel’s performance
fell below an objective standard of reasonableness. Reichenbach, 153 Wn.2d at 130. And to
show resulting prejudice, Roussel must show a reasonable probability that, but for counsel’s

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purportedly deficient performance, the outcome of his trial would have differed. Reichenbach,
153 Wn.2d at 130. If he fails to make either showing, we need not inquire further. State v.
Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007). Additionally, we strongly presume that
counsel’s performance was reasonable and, to rebut this presumption, “the defendant bears the
burden of establishing the absence of any ‘conceivable legitimate tactic explaining counsel’s
performance.’” State v. Grier, 171 Wn.2d 17, 42, 246 P.3d 1260 (2011) (quoting Reichenbach,
153 Wn.2d at 130), cert. denied, 135 S. Ct. 153 (2014). Ineffective assistance of counsel claims
present mixed questions of law and fact, which we review de novo. State v. Sutherby, 165
Wn.2d 870, 883, 204 P.3d 916 (2009).
A. Failure To Object to Prosecutorial Misconduct
Regarding defense counsel’s failure to object to prosecutorial misconduct, we held above
that Roussel has demonstrated only one instance of misconduct. We thus address only whether
defense counsel was ineffective for failing to object to the prosecutor’s question asking Huffine
whether Roussel had submitted medical records and a statement to police.
Generally, “[t]he decision whether to object is a classic example of trial tactics, and only
in egregious circumstances will the failure to object constitute ineffective assistance of counsel.”
State v. Kolesnik, 146 Wn. App. 790, 801, 192 P.3d 937 (2008). Here, defense counsel
conceivably had a legitimate tactical reason for declining to object to the prosecutor’s improper
question. Defense counsel could have anticipated that Roussel planned to testify in his defense
and that his failure to submit medical records and a statement to police would then be admissible
as impeachment evidence. Anticipating that the evidence could be elicited during cross-

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examination of Roussel or through a rebuttal witness’s testimony, defense counsel may have
strategically elected not to object to the brief reference to Roussel’s pre-arrest silence rather than
draw attention to it only to have the issue rearise later in trial. Because defense counsel
conceivably had a legitimate tactical reason for declining to object to the prosecutor’s
misconduct, Roussel cannot demonstrate ineffective assistance on this ground.
B. Failure To Object to Testimony in Violation of the Privacy Act
Regarding defense counsel’s failure to object to Huffine’s testimony about what he had
heard Rebecca state to Laura during a telephone conversation, which testimony Roussel contends
was inadmissible under the Privacy Act, Roussel fails to demonstrate any deficient performance
or resulting prejudice. Huffine’s testimony regarding Rebecca’s claim to Laura that Gary had
injured her with his walking stick was consistent with and cumulative to Rebecca’s testimony at
trial. Similarly, Huffine’s testimony regarding Laura’s response that Rebecca was injured by
Roussel in their trailer was consistent with Laura’s testimony. Therefore, exclusion of these
portions of Huffine’s testimony would not have had any identifiable impact on the result of
Roussel’s trial. Accordingly, Roussel cannot show any prejudice resulting from his counsel’s
failure to object to these portions of Huffine’s testimony.
And Huffine’s testimony that Rebecca had told Laura, “You better not bring that up or
you’re going down” was not objectionable under the Privacy Act. RP at 309-310. RCW
9.73.030(2) provides an exemption from the two-party consent rule of the Privacy Act for
“conversations . . . [that] convey threats of extortion, blackmail, bodily harm, or other unlawful
requests or demands.” Rebecca’s threat to Laura that Laura was “going down” if she brought up

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the subject of Roussel throwing Rebecca in the trailer falls within this exception. See, e.g., State
v. Williams, 94 Wn.2d 531, 549, 617 P.2d 1012 (1980) (Trial court properly admitted evidence
concerning portions of conversations “relating to threats of extortion, blackmail, bodily harm or
other unlawful requests of a similar nature” notwithstanding lack of two-party consent.).
Therefore, any objection to this portion of Huffine’s testimony on the basis that it violated the
Privacy Act would not have succeeded. Accordingly, Roussel fails to demonstrate that his
counsel was ineffective for failing to object to this portion of Huffine’s testimony.
C. Failure To Object to Hearsay Testimony
Finally, Roussel asserts that his defense counsel was ineffective for failing to object to
the following portions of Huffine’s testimony:
[State]: And did [Laura] tell you about what happened?
[Huffine]: Yes, she did.
[State]: The same thing we heard about here in court?
[Huffine]: Yes.
. . . .
[State]: And did you speak with Gary Fadden about what happened?
[Huffine]: I did.
[State]: And did he tell you about what happened, like what we heard
here in court?
[Huffine]: Yes.
RP at 145, 147-48. Roussel argues that Huffine’s “yes” responses to the State’s questions about
whether the Faddens’ statements to him were the same as what was heard in court constituted
inadmissible hearsay. Under ER 801(c), “‘Hearsay’ is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” To the extent that Huffine’s “yes” responses relayed out-of-court statements
made by the Faddens, we cannot discern how such statements were offered to prove the truth of

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the matter asserted. And, even assuming that Huffine’s responses constituted inadmissible
hearsay, Roussel fails to demonstrate the lack of any conceivable tactic explaining defense
counsel’s decision not to object.
“The decision of when or whether to object is a classic example of trial tactics.” State v.
Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). Given Huffine’s brief responses to the
State’s questions, which responses did not relay any substance of the Faddens’ out-of-court
statements, it is conceivable that defense counsel chose not to object to avoid emphasizing
Huffine’s testimony to the jury. See State v. McLean, 178 Wn. App. 236, 247, 313 P.3d 1181
(2013) (“[I]t can be a legitimate trial tactic to withhold an objection to avoid emphasizing
inadmissible evidence.”); see also State v. Kloepper, 179 Wn. App. 343, 355, 317 P.3d 1088
(2014) (“The decision to object, or to refrain from objecting even if testimony is not admissible,
is a tactical decision not to highlight the evidence to the jury. It is not a basis for finding counsel
ineffective.”). Because a legitimate tactical reason supported defense counsel’s decision not to
object to Huffine’s testimony, Roussel cannot demonstrate ineffective assistance of counsel on
this ground.
VI. LEGAL FINANCIAL OBLIGATIONS
Next, Roussel contends that the sentencing court erred by imposing LFOs without first
conducting an individualized inquiry into his ability to pay those LFOs. Although Roussel did
not raise the issue of his inability to pay LFOs at his sentencing hearing, we elect to exercise our
discretion to address the issue for the first time on appeal in light of Roussel’s indigent status, the
amount of imposed LFOs, and indications in his bail study/appointment of counsel worksheet

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that (1) Roussel has no money in a checking or savings account, (2) he does not own any
vehicles or real estate, and (3) his only sources of income are his wife’s social security benefits
and his occasional part-time work. See State v. Blazina, 182 Wn.2d 827, 834, 344 P.3d 680
(2015) (courts of appeals have discretion to address or refuse to address LFO issues raised for the
first time on appeal). Under Blazina, the sentencing court erred by imposing LFOs without
inquiring into Roussel’s current or likely future ability to pay the LFOs. 181 Wn.2d at 834.
Accordingly, we remand for resentencing solely on the LFO issue, at which the resentencing
court must make an adequate inquiry of Roussel’s ability to pay discretionary LFOs before
imposing such LFOs.
VII. SAG ARGUMENTS
In his SAG, Roussel argues that (1) the prosecution withheld evidence from the defense,
and (2) there was improper collusion between the State and his defense counsel. However, we
cannot address these arguments as raised in Roussel’s SAG because they both require
examination of matters outside the appellate record.9 State v. McFarland, 127 Wn.2d 322, 335,
899 P.2d 1251 (1995). Accordingly, we affirm Roussel’s convictions.
VIII. PERSONAL RESTRAINT PETITION ARGUMENTS10
In Roussel’s personal restraint petition, which we have consolidated with his direct
appeal, he repeats his SAG claim that the prosecution improperly withheld evidence from the
9 We address below Roussel’s claim that the prosecution withheld evidence from the defense as
argued in his personal restraint petition, which petition we consolidated with his direct appeal.
10 We deny Roussel’s motion for the appointment of counsel at public expense to represent him
in his personal restraint petition.

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defense. He also claims that the prosecutor committed misconduct by lying to the jury and by
knowingly presenting perjured testimony.
To obtain relief in a personal restraint petition, Roussel must show either constitutional
error that resulted in actual and substantial prejudice or nonconstitutional error that resulted in a
complete miscarriage of justice. In re Pers. Restraint of Cook, 114 Wn.2d 802, 810-12, 792 P.2d
506 (1990). Additionally, Roussel must support his claims of error with a statement of facts on
which his claim of unlawful restraint is based and the evidence available to support his factual
allegations; he cannot rely solely on conclusory allegations. RAP 16.7(a)(2); In re Pers.
Restraint of Williams, 111 Wn.2d 353, 365, 759 P.2d 436 (1998); see also Cook, 114 Wn.2d at
813-14.
A. Withholding Evidence
Roussel first contends in his petition that the prosecutor violated the discovery rules and
his due process rights by failing to disclose evidence favorable to the defense. We disagree.
Under CrR 4.7(a)(3), “the prosecuting attorney shall disclose to defendant’s counsel any
material or information within the prosecuting attorney’s knowledge which tends to negate
defendant’s guilt as to the offense charged.” Additionally, in Brady v. Maryland, 373 U.S. 83,
83A S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963), the United States Supreme Court held that
“the suppression by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.” Since Brady, the United States Supreme Court has
extended the due process obligation of prosecutors to disclose (1) favorable evidence even if not

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requested by the defendant, (2) impeachment evidence, and (3) evidence possessed by law
enforcement. See State v. Mullen, 171 Wn.2d 881, 894, 259 P.3d 158 (2011) (citing United
States v. Agurs, 427 U.S. 97, 110, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976); Giglio v. United
States, 405 U.S. 150, 154-55, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); Kyles v. Whitley, 514 U.S.
419, 437, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995)). To establish that the prosecution violated
its obligations under Brady, Roussel
must demonstrate the existence of each of three necessary elements: “[(1)] The
evidence at issue must be favorable to the accused, either because it is exculpatory,
or because it is impeaching; [(2)] that evidence must have been suppressed by the
State, either willfully or inadvertently; and [(3)] prejudice must have ensued.”
Mullen, 171 Wn.2d at 895 (alterations in original) (quoting Strickler v. Greene, 527 U.S. 263,
281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999)). Additionally, “Evidence that could have
been discovered but for lack of due diligence is not a Brady violation.” State v. Lord, 161 Wn.2d
276, 293, 165 P.3d 1251 (2007).
In support of his claim that the State failed to disclose evidence as required under the
discovery rules and due process, Roussel attached to his petition a March 2, 2015 letter from the
Cowlitz County Office of Public Defense stating:
We do not have a CD or any other copy of a 911 call related to your case.
If there is or was one, you should be able to get it from the police department or
prosecutor’s office. As I have previously informed you, we have provided you with
everything we have.
Petition (Ex. 1). Roussel also attached to his petition a letter from the Cowlitz County
Prosecuting Attorney’s office in response to his public records request, which letter stated that
the office had a copy of the audio from a 911 call. While these documents appear to show that

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the State had a copy of audio from a 911 call that the public defender’s office did not possess on
March 2, 2015, several months after Roussel’s judgment and sentence was entered on August 28,
2014, the documents do not support Roussel’s conclusory allegation that the prosecutor had
failed to disclose this evidence to the defense, let alone that defense counsel could not have
obtained the evidence through the exercise of due diligence. Accordingly, he fails to show that
the State violated either the discovery rules or its obligations under Brady.
B. Prosecutorial Misconduct
Next, Roussel contends in his petition that the prosecutor committed misconduct by (1)
lying to the jury and (2) knowingly presenting the perjured testimony of Laura and Gary. Again,
we disagree.
Roussel first asserts that the prosecutor lied to the jury by arguing at closing that he did
not see a doctor following the incident with the Faddens. However, the prosecutor made no such
argument. Rather, the prosecutor merely stated that the Roussels “claim they went to the doctor.
We don’t have the doctor here, but they claim they went to the doctor, and they had all these
injuries.” RP at 374-75. At trial, the Roussels each testified that they went to a doctor following
the incident with the Faddens. But the doctor the Roussels claimed to see did not testify at trial.
Thus, there was nothing untruthful about the prosecutor’s statement to jury, and Roussel fails to
demonstrate prosecutorial misconduct on this ground.
Next, Roussel asserts that the prosecutor knowingly presented Gary and Laura’s perjured
testimony. But Roussel fails to explain what testimony by the Faddens constituted perjury.

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Additionally, he fails to identify any evidence supporting his factual assertion that the prosecutor
knowingly presented such perjured testimony.
In support of his claim that the prosecutor knowingly presented perjured testimony,
Roussel attached to his petition a probable cause statement and what he asserts is a press release
from the prosecuting attorney’s office. He contends that these documents contradict each other
and demonstrate that the Faddens committed perjury during trial because the probable cause
statement states that “Roussel eventually got off of Gary and [G]ary immediately grabbed the
phone and dialed 911,” while the purported press release states, “The assault ended when
Roussel’s mother-in-law obtained a phone to call 911.” Petition (Exs. 7, 8). Contrary to
Roussel’s contention, these documents neither contradict each other nor demonstrate that the
prosecutor knowingly presented perjured testimony. Laura testified at trial that Roussel stopped
assaulting Gary and quickly left the property after she grabbed a phone to call 911, and then
Gary took the phone from her and called 911. Gary similarly testified that Roussel stopped
assaulting him after Laura went into the house and grabbed a phone, and that he called 911 after
the assaults ended. Accordingly, Roussel’s prosecutorial misconduct claims fail, and we deny
his petition.
IX. APPELLATE COSTS
Roussel has filed a supplemental brief opposing appellate costs in light of State v.
Sinclair, 192 Wn. App. 380, 367 P.3d 612 (2016), arguing that he does not have the ability to
pay. In light of Roussel’s indigent status, and our presumption under RAP 15.2(f) that he

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remains indigent “throughout the review” unless the trial court finds that his financial condition
has improved, we exercise our discretion to waive appellate costs. RCW 10.73.160(1).
We affirm Roussel’s convictions, deny his petition, and remand for resentencing at which
the sentencing court must make an individualized inquiry into Roussel’s ability to pay
discretionary LFOs before imposing those LFOs.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
______________________________
Worswick, J.
I concur:
__________________________________
Bjorgen, C.J.

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MAXA, J. (dissenting) – I believe that the trial court erred in denying Lawrence Roussel’s
request to instruct the jury on the inferior degree offense of fourth degree assault in addition to
second degree assault. Accordingly, I dissent.
A. LEGAL PRINCIPLES
RCW 10.61.003 provides that a jury may find a defendant not guilty of the charged
offense but guilty of an offense with an inferior degree. Under this statute, both parties have a
statutory right to an inferior degree offense instruction. State v. Corey, 181 Wn. App. 272, 276,
325 P.3d 250, review denied, 181 Wn.2d 1008 (2014).
Here, it is undisputed that fourth degree assault is an inferior degree of the charged
offense, second degree assault. The question is whether the evidence presented at trial is
sufficient to raise an inference that Roussel committed only fourth degree assault and not second
degree assault. See State v. Fernandez-Medina, 141 Wn.2d 448, 455, 6 P.3d 1150 (2000). The
trial court was required to give Roussel’s requested inferior degree offense instruction if the
evidence permitted a jury rationally to acquit on second degree assault and convict on fourth
degree assault. See id. at 456.
When determining whether the evidence was sufficient to support an inferior degree
offense instruction, we are guided by four principles. First, we view the evidence in the light
most favorable to the party that requested the instruction. Id. at 455-56. Second, the evidence
must affirmatively establish that the inferior degree offense was committed – “it is not enough
that the jury might disbelieve the evidence pointing to guilt.” Id. at 456. Third, we must
consider all of the evidence presented by both parties at trial, not only the evidence the defendant

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presented. Id. Fourth, it is immaterial whether the defendant’s own testimony is inconsistent
with a finding that he or she committed only the inferior degree offense. Id.
To convict on second degree assault, the State was required to prove that Roussel
assaulted Gary Fadden with a deadly weapon or by strangulation or suffocation. RCW
9A.36.021(1)(c), (g). Roussel would be guilty of fourth degree assault if he assaulted Gary
under circumstances not amounting to assault in the first, second or third degree or custodial
assault. RCW 9A.36.041(1). “Fourth degree assault is essentially an assault with little or no
bodily harm, committed without a deadly weapon – so-called simple assault.” State v. Hahn,
174 Wn.2d 126, 129, 271 P.3d 892 (2012). Roussel was entitled to an instruction on the inferior
degree offense of fourth degree assault if there was affirmative evidence at trial that Roussel
assaulted Gary by knocking him to the ground, but that such assault was not committed with a
deadly weapon or by strangulation or suffocation.
B. SUFFICIENT EVIDENCE OF FOURTH DEGREE ASSAULT
Here, there was evidence presented at trial that would have allowed the jury to find that
Roussel attacked Gary and knocked him to the ground. Gary testified:
I went out with [Roussel] and towards him, and I was going to protect Laura. And
then he come after me, and it doesn’t take much to knock me to the ground, I’ll tell
you, and the next thing I know, I’m on the ground and that he’s on top of me . . .
Report of Proceedings (RP) at 110. Gary did not expressly state that Roussel knocked him to the
ground. But viewing the evidence in the light most favorable to Roussel, this testimony raised an
inference that Roussel knocked Gary to the ground.
Roussel provided a different version of how the incident started. He testified that he
“squared off” with Gary and that Gary “took two steps back and fell backwards on his back.”

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RP at 272-73. However, as noted above, whether the defendant’s testimony supports an inferior
degree offense instruction is immaterial if other evidence supports the instruction. Fernandez-
Medina, 141 Wn.2d at 456.
The Supreme Court addressed this issue in Fernandez-Medina.
If the trial court were to examine only the testimony of the defendant, it would have
been justified in refusing to give the requested inferior degree instruction. As we
have observed above, Fernandez-Medina claimed that he was not present at the
incident leading to the charge at issue. A trial court is not to take such a limited
view of the evidence, however, but must consider all of the evidence that is
presented at trial when it is deciding whether or not an instruction should be given.
Id.
Knocking a person to the ground does not involve strangulation or a deadly weapon.
Therefore, Gary’s testimony is sufficient to support a finding that Roussel committed fourth
degree assault.
C. SUFFICIENT EVIDENCE OF NO SECOND DEGREE ASSAULT
The question here is whether there was sufficient evidence for the jury to find that
Roussel committed only fourth degree assault and not second degree assault.
Gary testified that after Roussel knocked him to the ground, Roussel pressed the walking
stick across his throat and made it difficult for him to breathe. The portion of Gary’s testimony
quoted above continued:
[T]he next thing I know, I’m on the ground and that he’s on top of me, and I’ve got
that walking stick - - it’s across my throat and, you know, I’m gasping for breath
and trying to keep it off my neck, and it was rubbing right in here.
RP at 110. If the jury believed this testimony, it was sufficient to establish both the deadly
weapon component and the strangulation component of second degree assault.

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However, Roussel presented a different version of what occurred after Gary was on the
ground. He claimed that Gary hit him with the walking stick, and then Roussel managed to
wrestle the stick out of Gary’s hands and throw it into the yard. Roussel expressly denied
choking Gary with the stick. Laura Fadden’s testimony was not inconsistent with Roussel’s.
She did not see how Gary ended up on the ground. But when she first saw the two men
struggling, Roussel was holding the walking stick over Gary’s chest area and Gary was pushing
up on the stick. Viewing the evidence in the light most favorable to Roussel, this testimony
supported a finding that Roussel did not strangle Gary or use the walking stick as a weapon and
therefore did not commit second degree assault.
Admittedly there was conflicting testimony. But the jury could have found Roussel’s
testimony more credible than Gary’s testimony on this issue, especially because Laura’s
testimony was consistent with Roussel’s testimony. Therefore, the evidence was sufficient to
support a finding that Roussel did not commit second degree assault.
D. CONCLUSION
In summary, the jury could have inferred from Gary’s testimony that Roussel charged
him and knocked him to the ground and disbelieved Roussel’s testimony that Gary fell down on
his own. At the same time, the jury could have believed Roussel’s testimony that he grabbed the
walking stick from Gary and threw it away and disbelieved Gary’s testimony that Roussel used
the walking stick to choke him. If the jury evaluated the evidence in this manner, they would
have convicted Roussel only of fourth degree assault and could not have convicted Roussel of
second degree assault.

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The majority opinion seems to assume that the jury’s only choice was between believing
Gary’s entire testimony or believing Roussel’s entire testimony. That is not the law. Evaluating
witness testimony is not an all or nothing proposition. A jury is entitled to base its verdict on a
finding that witness testimony is partially credible and partially not credible. As the Supreme
Court noted in Fernandez-Medina, we must consider “all the evidence that is presented at trial”
when determining whether an inferior degree instruction should have been given. Id.
Based on all of the evidence presented at trial, I believe that the trial court erred in
refusing to give Roussel’s proposed instruction on the inferior degree offense of fourth degree
assault. Therefore, I would reverse and remand for a new trial.
___________________________
MAXA, A.C.J.