State v. Osman

192 Wash.App. 355

366 P.3d 956

STATE of Washington, Respondent,

v.Harun Mohamed OSMAN, Appellant.

No. 71844–4–I.

Court of Appeals of Washington, Division 1.

Jan. 25, 2016.

Lila Jane Silverstein, Oliver Ross Davis, Washington Appellate Project, Seattle, WA, for Appellant.

Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, Seattle, WA, Rod H. Scarr, Attorney at Law, King Co. Pros. Aty., Seattle, WA, for Respondent.

SCHINDLER, J.

¶ 1 Harun Mohamed Osman seeks reversal of the assault in the fourth degree jury conviction. Osman contends that during closing argument, the prosecutor improperly shifted the burden of proof, and the court erred in sustaining the State's objection and impermissibly limited the scope of the defense closing argument. We hold the prosecutor properly argued reasonable inferences from the evidence and did not improperly shift the burden of proof to the defense. We conclude the court erred in sustaining the objection to the description of the meaning of "abiding belief" as inaccurate and limited the scope of the defense argument. However, because the error was harmless beyond a reasonable doubt, we conclude the jury verdict would have been the same absent the error, and affirm.

FACTS

¶ 2 After returning from work on November 29, 2012, Tammy Maxwell asked her son Nicholas to drop her off at the Castaway Tavern while he went to the library. Maxwell sat at the bar and had a couple of drinks. Harun Mohamed Osman approached Maxwell and offered to buy her another drink. Shortly thereafter, Nicholas sent Maxwell a text message that he was outside in the parking lot.

¶ 3 Maxwell got up, put down her drink, and left. Osman followed Maxwell outside and asked her to sit in his car and talk. In an effort to get him to leave her alone, Maxwell said she agreed to sit in his car and talk. Maxwell told Nicholas to wait and "she would be right back."

¶ 4 A few minutes later, Osman drove out of the Castaway Tavern parking lot at a high speed. Nicholas called Maxwell on her cell phone. Before the phone disconnected, Maxwell yelled Nicholas should follow the car. Nicholas tried calling back a number of times. At one point, the call connected and he heard Maxwell demanding Osman give her cell phone back.

¶ 5 At approximately 11:00 p.m., Federal Way Police Department Officer Chris Martin, Officer Gabriel Castro, and Officer Robert Guillermo detained suspects in a stolen vehicle. When Officer Martin heard someone screaming for help from across the intersection, he ran in the direction of the screams.

¶ 6 As Officer Martin ran into a parking lot behind an espresso stand and a McDonald's, he saw a car "parked nose in." A female, later identified as Tammy Maxwell, was sitting in the driver's seat of the vehicle with her legs hanging out. A man, later identified as Harun Mohamed Osman, was "standing over her punching her" in the face with a closed fist. Officer Martin ordered Osman to stop hitting Maxwell. When Osman "came out" of the car, he had a torn white bra strap in his hand. Officer Martin said Maxwell was "afraid, crying, [and] upset." Officer Martin saw marks on her face, and Maxwell had broken several acrylic fingernails. Officer Martin detained Osman until Officer Castro and Officer Guillermo arrived. Officer Castro took photographs of Maxwell's facial injuries and her torn clothing. Maxwell gave the police a written statement under penalty of perjury. The next morning, Maxwell realized she lost a hoop earring during the "struggle" with Osman.

¶ 7 On December 4, Detective Raymond Unsworth executed a warrant to search Osman's car. Detective Unsworth found a wallet between the driver's seat and the center console. Detective Unsworth later found a hoop earring on the floorboard of the driver's side of the car.

¶ 8 The State charged Osman with unlawful imprisonment, felony harassment, and assault in the fourth degree. Osman entered a plea of not guilty.

¶ 9 A number of witnesses testified during trial including Maxwell, her son Nicholas, Officer Martin, Officer Castro, Officer Guillermo, and Detective Unsworth. The court admitted into evidence a number of photographs. The defense did not call any witnesses. The defense theory was that Maxwell willingly got into the car, Osman did not threaten to kill Maxwell, and because it was a mutual struggle, Osman did not commit assault.

¶ 10 Maxwell testified that she worked as an in-home caregiver for persons with disabilities and the elderly. Maxwell said that on November 29, 2012, she was very affected by a terminally ill client she worked with at the end of the day. When Maxwell got home, she asked Nicholas to drop her off at the Castaway Tavern while he was at the library. Maxwell said she sat at the bar and had a few drinks. Maxwell testified that Osman approached her and tried "to strike up a conversation" and buy her a drink. Maxwell testified Osman was insistent and she was "annoyed."

You know, he kept saying, you know, I'd like to talk to you, I want to talk to you, I'd like to get to know you, I want to talk to you....

....

... He wasn't taking no for an answer. I finished my drink and he offered to buy me another drink and I told him that I can get my own drink and he was like no, let me get it. And I was like no I can get it myself. And he just basically told the bartender, no, I've got her drink. And the bartender made the drink for me and sat it down and ... so then I just went ahead and I was like fine, I'll just drink the drink figuring that maybe that'll let it be.

It didn't. It continued. He continued talking.

¶ 11 After Nicholas sent a text that he was in the parking lot, Maxwell left. Maxwell said Osman followed "right behind." She said Osman opened the door to his car and "kept asking me to sit and talk with him, would I sit and talk with him." Maxwell testified she agreed to sit in the car. "Really to be honest because he was bothering me and it was like if this just would be just done.... [I]t was very persistent. It wasn't to where I could say, could you just leave me alone."

¶ 12 According to Maxwell, after Osman "shut the door," she "wanted to get back out of the car" but "couldn't figure out how to open the door because the door was locked." Maxwell testified that Osman said, "[J]ust sit and talk for a minute, just sit and talk," but then he started the car and said, "I'm just going to take you to your son it's raining." Maxwell testified that she said, "[N]o, it's just right there I can walk. I don't want you to start the car. I don't want you to take me over there."

¶ 13 Maxwell said Osman "put the car in reverse and just tore out of the parking lot." Maxwell testified she was "yelling on the phone, Nick, follow us, Nick, follow us," and Osman said, "[I]f your son follows us I'll kill him too." Maxwell testified she fought the whole time and was doing everything she could to get out of the car, but Osman was "trying to keep me in my seat."

He kept grabbing me around this side, on the waist, on the breast area, trying to hang on to me.

....

... I was trying to get out, like I was trying to open the door to jump out of the car. And he was trying to keep me in my seat.

¶ 14 Maxwell testified Osman "turned in to this dark area by McDonalds" and when he stopped the car, she got out. Maxwell said that as she "started to run towards the McDonalds," Osman came "around the front of the car onto my side and he was trying to stop me. And get me back in the car." Maxwell testified that after Osman grabbed her cell phone and walked to the driver's side of the car, she reached around Osman as he "leaned into the driver's side" of the car to "grab[ ] my phone back and struggled with him."

¶ 15 Maxwell said that just before the police officers arrived, Osman "punched me in the side of the face" and "got me pretty good." Maxwell testified, in pertinent part:

I was seriously shaken. I—he had hit me here in the face so that was sore and red. He tore my clothes, like on the side here. And my bra was broken. The bra clasp had cut into me so I was bleeding. I was very shaken. Very, very shaken.

... [M]y hands hurt because I had fought so—like broke several of—I had acrylic nails, I had broke several nails in the argue—in the fight. I lost an earring.

¶ 16 On cross-examination, Maxwell testified that while at the Castaway Tavern, "I was on my third drink" and "feeling tipsy." Maxwell said what happened is "kind of fuzzy" and she did not know how she "ended up in his car." Maxwell admitted that according to her written statement, she "got into his car so we [could] talk." Maxwell also admitted she gave Osman her cell number and she did not tell the police that Osman threatened to kill her. In the written statement, Maxwell said Osman told her, "I don't want to beat you down but I will."

¶ 17 Nicholas testified that Maxwell told him she was going to talk to Osman in his car "for about a minute." Nicholas said that after about five minutes, the car "pulled out in a hurry." When Nicholas called Maxwell on her cell phone, he heard them arguing about whether she had taken Osman's wallet.

I heard talk about money and something about him accusing her of taking money and her saying, I don't have your money, I don't have your money. And then he was like, he said something else about, yeah you do and where's my money?

¶ 18 Nicholas testified that when he called back, he heard his "mom saying stop the car, stop the car. And she was like, let me out. And then all I heard was Nick, come get me, help, Nick, come get me. Then I heard [Osman] say, if he comes I'll kill him too." After the phone disconnected, Nicholas tried to call back a number of times. When he "tried one more time," he "got an answer, and then it sounded like she was on speaker and all I heard her saying was give me my phone."

¶ 19 On cross-examination, Nicholas testified Maxwell and Osman left the tavern together, and Maxwell "appeared normal," not "scared" or "angry," and was "[i]n fact, ... smiling." Nicolas testified Maxwell...