13 July 1999

No. 1-98-3277WC

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

INDUSTRIAL COMMISSION DIVISION

BENNETT AUTO REBUILDERS,		)	Appeal from the Circuit,

)	Court of Cook County, Illinois 		Appellant,		)

v.					)	No. 96 L 051034

)

THE INDUSTRIAL COMMISSION
et
	)	H
onorable

al.
, (Douglas C. Siegele,	)	Joanne L. Lanigan

Appellee.)		)	Judge Presiding

_________________________________________________________________

JUSTICE HOLDRIDGE delivered the Opinion of the court:

_________________________________________________________________

Claimant, Douglas C. Siegele, filed a claim pursuant to the Illinois Workers' Compensation Act (the Act) (820 ILCS 305/1
et

seq.
) (West 1996)) seeking compensation for a low back injury he sustained on October 12, 1993, while employed by Bennett Auto Rebuilders (the employer).

The arbitrator found that claimant sustained accidental injuries, which arose out of and within the course of his employment, and which were causally connected to his October 12, 1993, accident.  The arbitrator awarded claimant temporary total disability (TTD) benefits, medical expenses, and denied his request for penalties.  Pursuant to section 8(a) of the Act (820 ILCS 305/8(a) (West 1996)), the arbitrator ordered the employer to provide written authorization for claimant to undergo a surgical procedure prescribed by orthopaedist Dr. George Miz.

The Illinois Industrial Commission (the Commission) affirmed and adopted the arbitrator's decision.  The circuit court of Cook County confirmed the Commission's decision.

On October 12, 1993, while claimant performed a front end alignment on a vehicle for the employer, he felt a snap in his low back.  He immediately experienced pain throughout his left side, mainly in the area of his left groin and low back.  He sought emergency room treatment at St. Francis Hospital (St. Francis) in Blue Island, Illinois.  He was given pain medication and advised to see a physician if his pain did not subside.

Thereafter, claimant began a course of treatment with Dr. Roy Lacey through March 9, 1994.  Although he underwent physical therapy, it failed to either improve or alleviate his pain.  An MRI of his low back revealed disc degeneration at L5-S1; small left foramina disc herniations at L3-L4 and L4-L5; and moderate left paracentral disc herniation at L5-S1.

In December 1993, Dr. Lacey referred claimant to general surgeon Dr. Kenneth Anderson, who diagnosed him with a pulled groin muscle and found no evidence of a hernia.  On December 11, 1993, Dr. Lacey released claimant to return to work with the light-duty restrictions of lifting no more than 20 pounds and no prolonged standing or bending until his return appointment on December 27, 1993.

In February 1994, Dr. Lacey referred claimant to neurologist Dr. Soo In Lee.  Although Dr. Soo In Lee's exam of claimant produced normal and unremarkable results, he did find pain distribution into the L2 area of claimant's left side, and he recommended physical therapy.

Also in February 1994, and at the employer's request, claimant was examined by orthopedic surgeon Dr. Sid John Shafer.  Dr. Shafer examined claimant again on August 1, 1994, and on June 5, 1995.  He concluded that claimant suffered a left groin strain, and was fit to return to work without the need for any additional medical treatment or surgery.

In April 1994, claimant was seen by Dr. Miz.  Claimant underwent additional physical therapy with no improvement.  In July 1994, claimant underwent a CT scan and myelogram that confirmed his previous MRI findings, and Dr. Miz diagnosed him with significant herniations in his low back at L5-S1 and L3-L4.  Dr. Miz prescribed a surgical lumbar microdiscectomy to both of claimant's affected levels in his low back.  The employer refused to authorize such surgical procedure, and claimant has not been released to return to work.

Claimant attempted to return to light-duty work in August 1994.  On August 4, 1994, claimant maintains that the employer sent him home, as there was no work available.  On August 5, 1994, claimant again reported to work and was told by the employer's president, Michael McCann (McCann) that documentation would be necessary before he would be allowed to return to work.

McCann testified that on August 5, 1994, claimant reported to work without any tools; said that he did not know why he was there; and indicated that he could not perform any work.  McCann stated that he had light-duty work available, and that he would have assigned someone to do any necessary lifting for claimant. McCann testified further that he was unaware of the name of claimant's treating physician, his physical restrictions, the fact that he was taking medication, and the fact that surgery was recommended as the only means to alleviate his pain.

The employer offered surveillance videotape evidence wherein Alan Brooks (Brooks) recorded claimant on August 23, 1994, and September 21, 1994.  Brooks acknowledged that he was not a physician; could not tell if claimant was in pain or on pain medication; and was unaware of any restrictions claimant might have been under at the time the videotape was made.  The arbitrator viewed 15-20 minutes of the 12 hour video tape, which showed claimant reaching down and picking up a small, hollow sheet metal tube for approximately two seconds.  Claimant was not shown performing any strenuous activities.

Claimant testified that he had not previously suffered any low back injury, nor had he suffered any injury since his October 12, 1993, accident.  He denied any lifting since October 12, 1993, with the exception of lifting paint cans and using tools and welding equipment.  He also denied moving building materials such as bricks, wood, or sheet metal.  He has trouble walking, standing, and sitting for long periods of time.

The arbitrator found claimant's testimony credible.  The arbitrator adopted the opinions and conclusions of Dr. Miz, and found that Dr. Shafer, in an attempt to categorize claimant's condition as a simple back strain or groin pull, ignored evidence of claimant's herniated discs.  The arbitrator concluded that claimant sustained accidental injuries, which arose out of and within the course of his employment, and which were causally connected to his October 12, 1993, accident.  The arbitrator awarded claimant $298.67 per week for 83 1/7 weeks in TTD benefits, $330 in medical expenses, and denied claimant's request for penalties.

  	The arbitrator determined that the employer failed to produce any credible evidence as to why Dr. Miz's recommended surgical procedure should not be authorized.  The arbitrator found such surgical procedure reasonable and necessary.  As a result, and pursuant to section 8(a) of the Act, the arbitrator ordered the employer to provide written authorization for claimant to undergo such surgical procedure.  The Commission affirmed and adopted the arbitrator's decision, and the circuit court confirmed the Commission's decision.

On appeal, the employer contends that the Commission erred in finding that claimant's low back condition was causally connected to his October 1993 accident, as the medical records of Drs. Lacey, Anderson, and Soo In Lee, all comport with Dr. Shafer's finding that no such causal connection existed.

The employer contends further that claimant's testimony, concerning the pain he felt after his accident and his return to work, was not credible and was rebutted by medical records and McCann's testimony, respectively.

A determination as to a causal connection is a question of fact to be decided by the Commission, which will not be disturbed unless it is against the manifest weight of the evidence,
i
.
e
. unless the opposite conclusion is clearly apparent.
Antonopoulos v. Industrial Comm'n
, 195 Ill. App. 3d 689, 693 (1990).  It is well settled that in workers' compensation cases it is the function of the Commission to decide questions of fact and causation, to judge witness credibility, and to resolve conflicts in evidence.
Mendota Township High School v. Industrial Comm'n
, 243 Ill. App. 3d 834, 836 (1993).

Here, the Commission adopted the arbitrator's specific finding that Dr. Shafer, in categorizing claimant's condition as a simple back strain or groin pull, disregarded the results of claimant's MRI, myelogram, and post myelogram CT scan, all of which evidenced significant findings of herniated discs.  The Commission adopted the arbitrator's opinion that claimant's testimony concerning the fact that he had neither previously suffered any low back injury, nor had he suffered any injury since his October 12, 1993, accident was credible.  The arbitrator noted that claimant underwent extensive physical therapy after his October 1993 accident, which failed to improve his condition.

Pursuant to
Mendota
, it was within the Commission's province to reject the opinions and conclusions of Dr. Shafer, and to find claimant's testimony credible.  Claimant's testimony, coupled with the MRI, myelogram, and post myelogram CT scan results, all of which consistently produced significant findings of herniated discs, support the Commission's causal connection finding.  Therefore, it cannot be said that such finding was against the manifest weight of the evidence.

Next, the employer contends that the Commission's future medical expense award was against the manifest weight of the evidence.  The employer notes that only Dr. Miz opined claimant was in need of surgery, while the opinions of Drs. Lacey, Anderson, and Soo In Lee support Dr. Shafer's conclusion that claimant was not in need of surgery.  The employer maintains therefore that the greater weight of the evidence established such surgical procedure was unreasonable and unnecessary.

Section 8(a) of the Act entitles a claimant to compensation for all necessary medical, surgical, and hospital services, thereafter incurred, which are reasonably required to cure or relieve the effects of injury.  See 820 ILCS 305/8(a) (West 1996).  Such prescribed services not yet performed or paid for are considered to have been "incurred" within the meaning of section 8(a).  See
Plantation Manufacturing Co. v. Industrial Comm'n
, 294 Ill. App. 3d 705, 710 (1997).

In this case, the Commission was presented with conflicting medical opinions concerning the necessity of claimant's surgery.  We recognize that it is within the Commission's province to weigh and to judge witness credibility, to resolve conflicts in medical testimony, and to choose among conflicting inferences therefrom, and we will not disturb the Commission's findings as to these issues, even though we might have decided differently on the same facts, unless such findings are against the manifest weight of the evidence.  See
Dexheimer v. Industrial Comm'n
, 202 Ill. App. 3d 437, 442 (1990).

The Commission adopted the arbitrator's acceptance of Dr. Miz's opinion that based upon the objective tests, a surgical lumbar microdiscectomy to both of claimant's affected levels in his low back would alleviate his condition of ill-being.  Pursuant to
Dexheimer
, it was within the Commission's province to do so, and to find that the prescribed surgical procedure was reasonable and necessary.  Therefore, it cannot be said that such decision was against the manifest weight of the evidence.

Lastly, the employer contends that the Commission's order requiring it to provide written authorization for claimant to undergo such surgical procedure directly contradicts this court's decision in
Plantation
.

In
Plantation
, as here, conflicting medical testimony was presented in regard to the need for a claimant's back surgery.  One physician opined that surgery offered a remote probability of relief and would be hazardous, while another physician recommended surgery based upon failed conservative treatments.  The employer refused to authorize payment of the procedure.  The Commission ordered the employer to provide written authorization to the surgeon and to pay all reasonable and necessary bills related to the surgery.

In
Plantation
, 294 Ill. App. 3d at 711-12, we refused to substitute our judgment for that of the Commission's judgment, and we held that it was within the Commission's province to adopt the medical opinion which recommended the claimant's surgery, and to find that such surgery was reasonable and necessary.  We ordered the employer to pay all reasonable costs in connection with the surgery, however, we eliminated the Commission's directive that the employer provide written authorization for the surgery.  In doing so, we noted that such written authorization would leave the employer with no recourse to challenge the reasonableness of the cost of surgery.

Our holding in
Plantation
, however, was based upon facts distinguishable from the instant case.
Plantation
 involved a post-arbitration petition under section 8(a) of the Act, and the request for surgery was made in a supplemental proceeding to the Commission.  All of the issues presented in
Plantation
 had been resolved, and the claimant received a permanency award.  The instant matter, on the other hand, involved a 19(b) arbitration hearing, and the issues regarding further TTD benefits or permanency remained open for determination in subsequent proceedings.  Therefore, the opportunity to challenge the reasonableness of the cost of the surgery in subsequent hearings is available to the employer.

In light of the fact that
Plantation
 is distinguishable from the instant case, we find that in the this matter the Commission's directive to the employer to provide written authorization for Dr. Miz's prescribed surgery was proper.

Based upon the foregoing, the circuit court of Cook County is affirmed.

Affirmed.

McCULLOUGH, P.J., and RAKOWSKI, COLWELL, and RARICK, JJ., concurring.


                                       COURT OF APPEALS
                                    EIGHTH DISTRICT OF TEXAS
                                         EL PASO, TEXAS

 MARCUS DAVON SHEPHERD A/K/A                          §
 MARCUS D. SHEPHERD,                                                   No. 08-07-00186-CR
                                                      §
                     Appellant,                                           Appeal from the
                                                      §
 v.                                                                     213rd District Court
                                                      §
                                                                     of Tarrant County, Texas
 THE STATE OF TEXAS,                                  §
                                                                          (TC#1048507D)
                     Appellee.                        §

                                              OPINION

          This is an appeal from a jury conviction for the offense of theft under $1,500 with the

allegation of two prior theft convictions. The jury assessed punishment at two years’ imprisonment

in the State Jail Division of the Texas Department of Criminal Justice, and a fine of $1,500. We

affirm.

                                 I. SUMMARY OF THE EVIDENCE1

          Michael Marquez testified that he was the grocery director at the Tom Thumb store on Hulen

and Bellaire Streets in Fort Worth, Texas and that on November 6, 2006, he observed Appellant

walking across the front of the store toward the exit. Appellant was holding crutches and was in the

company of a woman, Quillian Rockwell, who was using a motorized shopping cart. Another store

employee followed the two out of the store and saw them get into a gold Kia automobile.

          Marquez thought he recognized the pair from prior theft reports, and he reviewed the store’s

          1
          Appellant was indicted for two offenses, trial cause numbers 1048089D and 1048507D. On appeal the
case numbers are 08-07-00185-CR and 08-07-00186-CR. The cases were tried together and the evidentiary
summaries are combined in each opinion.
surveillance video.2 In the video, he saw Appellant and Rockwell at the section of the store where

the razors were located. Rockwell was pulling packages of razors from the shelf while Appellant

pointed out razors. Rockwell tucked the razors under her shirt and Appellant was looking at her

while she did so. Appellant was also looking about the store and they appeared to be working

together. The two left the store without paying for the razors and an inventory indicated that no

razors were paid for at that time. Marquez estimated that at least five and as many as thirty packages

of razors were taken. He stated the value of the razors was over one dollar and less than fifteen

hundred dollars. He testified he did not give permission to either Appellant or his companion to take

the razor blades.

       Patrick Worley testified that he was the store manager for the Tom Thumb store in Hurst,

Texas in Tarrant County and that on November 17, 2006, he noticed two people whom he recognized

from a store theft flyer he had received from another Tom Thumb store. Appellant and a woman

were milling about the over-the-counter medicine section of the store. They checked out at a

cashier’s station, and did not pay for any medication. Worley followed the pair into the parking lot

where he observed them get into a yellow Kia automobile. He took down the vehicle’s license plate

number.

       Worley then returned to the store to review the surveillance videotape. It showed that

Appellant was acting as a lookout while his companion was taking items off the shelf and concealing

them in her pants.3 Worley testified that at least four boxes and possibly as many as seven or eight

boxes of medication were taken. This was verified by a store inventory. He stated that the value of

the items taken was between one dollar and fifteen hundred dollars. He did not give permission for

       2
           The video was admitted into evidence and published to the jury.

       3
           The videotape was admitted into evidence and published to the jury.
the Appellant and his companion to take the medicines.

       Janie Ransom testified that her daughter, Quillian Rockwell, was Appellant’s girlfriend and

they had use of her gold Kia automobile.

       The police located the gold-colored Kia automobile at a Motel 6 in Fort Worth, Texas.

Appellant opened the door of the room and he was arrested on an outstanding arrest warrant.

Quillian Rockwell was found hiding underneath the bed in the room, and she was arrested.

                                              II. DISCUSSION

       In Issue One Appellant contends that the evidence is insufficient to support the conviction.

In reviewing the legal sufficiency of the evidence, we are constrained to view the evidence in the

light most favorable to the judgment to determine whether any rational trier of fact could find the

essential elements of the offense, as alleged in the application paragraph of the charge to the jury,

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979). More particularly, sufficiency of the evidence should be measured by the elements of the

offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d

234, 239-40 (Tex.Crim.App. 1997).4

       4
           The court’s charge to the jury contained the following instructions and application paragraph:

                 A person is criminally responsible as a party to an offense if the offense is committed by
       his own conduct, by the conduct of another for which he is criminally responsible, or both.
                 A person is criminally responsible for an offense committed by the conduct of another if,
       acting with intent to promote or assist the commission of the offense, he solicits, encourages,
       directs, aids, or attempts to aid the other person to commit the offense.
                 Mere presence alone will not constitute one a party to an offense.
                                                        . . .
                 Now bearing in mind the foregoing instructions, if you believe from the evidence beyond
       a reasonable doubt, that the defendant, Marcus Davon Shepherd, acting as a party as that term has
       been hereinbefore defined, on or about the 17th day of November, 2006, in Tarrant County, Texas,
       did then and there unlawfully appropriate, by acquiring or otherwise exercising control over
       property, to-wit: four boxes of over-the-counter medicine of the value of less than $1500, with
       intent to deprive the owner, Patrick W orkley, of the property, and that prior to the commission of
       the aforesaid offense, the defendant had twice been finally convicted of a grade of theft, to-wit: on
       the 11th day of February, 2002, in the County Criminal Court One of Tarrant County, Texas in
       Our role is not to ascertain whether the evidence establishes guilt beyond a reasonable doubt.

Dwyer v. State, 836 S.W.2d 700, 702 (Tex.App.–El Paso 1992, pet. ref’d). We do not resolve any

conflict in fact, weigh any evidence or evaluate the credibility of any witnesses, and thus, the

fact-finding results of a criminal jury trial are given great deference. Menchaca v. State ,901 S.W.2d

640, 650-52 (Tex.App.–El Paso 1995, pet. ref’d); Adelman v. State, 828 S.W.2d 418, 421

(Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991); Leyva v. State,

840 S.W.2d 757, 759 (Tex.App.–El Paso 1992, pet. ref’d); Bennett v. State, 831 S.W.2d 20, 22

(Tex.App.–El Paso 1992, no pet.). Instead, our only duty is to determine if both the explicit and

implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the

light most favorable to the verdict. Adelman, 828 S.W.2d at 421-22. In so doing, we resolve any

inconsistencies in the evidence in favor of the verdict. Matson, 819 S.W.2d at 843, quoting Moreno

v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). The trier of fact, not the appellate court, is

free to accept or reject all or any portion of any witness’s testimony. Belton v. State, 900 S.W.2d

886, 897 (Tex.App.–El Paso 1995, pet. ref’d).

       Without any specific contention, Appellant asserts that there is absolutely no evidence of any

theft by Appellant. However, we find that under the law of parties, there is sufficient evidence to

support the conviction. The store surveillance videotape shows Appellant acting as a lookout while

his companion is taking medication items off of the shelves and placing them into her pants. They

exited the store without paying for the merchandise. The value of the medication was between one

       Cause No. 0827955, and on the 22nd day of May, 2006 in the 371st District Court of Tarrant
       County, Texas, in Cause No. 0996077D, you will find the defendant guilty of the offense of theft
       under $1500 with two prior convictions for any grade of theft as charged in the indictment.
                Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will
       find the Defendant not guilty.
dollar and fifteen hundred dollars, and neither Appellant nor his companion had permission to take

the items. Issue One is overruled.

       In Issue Two Appellant asserts that the evidence is factually insufficient to support the

conviction. In reviewing factual sufficiency of the evidence to support a conviction, we are to view

all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7

(Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In performing

our review, we are to give due deference to the fact finder’s determinations. See Johnson, 23 S.W.3d

at 8-9; Clewis, 922 S.W.2d at 136. The fact finder is the judge of the credibility of the witnesses and

may “believe all, some, or none of the testimony . . . .” See Chambers v. State, 805 S.W.2d 459, 461

(Tex.Crim.App. 1991). Evidence is factually insufficient if it is so weak that it would be clearly

wrong and manifestly unjust to allow the verdict to stand, or the finding of guilt is against the great

weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. Thus, the question

we must consider in conducting a factual sufficiency review is whether a neutral review of all the

evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak

as to undermine confidence in the fact finder’s determination, or the proof of guilt, although

adequate if taken alone, is greatly outweighed by contrary proof. See id.

       Again, Appellant makes no specific argument in support of his contention that the evidence

is factually insufficient. During cross-examination of the complaining witness, Patrick Worley, it

appears that Appellant and his companion paid for something before they exited the store. However

Worley testified that his review of a videotape, his inventory, and his questioning of the cashiers,

established that the pair did not pay for medications. We find that the evidence was not so obviously

weak as to undermine confidence in the fact finder’s determination. Issue Two is overruled.

                                        III. CONCLUSION
       We affirm the judgment of the trial court.

                                              GUADALUPE RIVERA, Justice

July 31, 2009

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)


                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT

                             No. 04-1665

CSABA L. MAGASSY; FRANCES H. MAGASSY,

                                           Petitioners - Appellants,

           versus

COMMISSIONER OF INTERNAL REVENUE,

                                              Respondent - Appellee.

Appeal from the United States Tax Court.    (Tax Ct. No. 01-11982)

Argued:   May 25, 2005                      Decided:   July 26, 2005

Before WIDENER, WILKINSON, and NIEMEYER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Robert Doran Grossman, Jr., Las Vegas, Nevada, for
Appellants.   Samuel Ashby Lambert, UNITED STATES DEPARTMENT OF
JUSTICE, Tax Division, Washington, D.C., for Appellee. ON BRIEF:
Eileen J. O’Connor, Assistant Attorney General, Bruce R. Ellisen,
UNITED STATES DEPARTMENT OF JUSTICE, Tax Division, Washington,
D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Taxpayers     Csaba    and     Frances    Magassy    appeal    from   a

decision    of   the    Tax   Court   upholding      a   determination     by   the

Commissioner of Internal Revenue of deficiencies in their federal

income taxes for the years 1995, 1996, and 1997.                  The Tax Court

denied the Magassys deductions they claimed for expenses related to

the operation of their 108-foot motor yacht during the years 1995,

1996, and 1997 and for the loss incurred from the sale of the yacht

in 1997.    The Tax Court concluded that under § 183 of the Internal

Revenue Code, the Magassys did not have an "actual and honest

objective" of making a profit in operating and selling the yacht,

and that under § 1231 of the Internal Revenue Code, the yacht's

chartering activity prior to its sale did not constitute a "trade

or business."     Finding no error in the Tax Court's decision, we

affirm.

                                          I

            Csaba Magassy and his wife, Frances Magassy, of Potomac,

Maryland, filed joint tax returns for the years 1995, 1996, and

1997.     During the relevant years, Csaba Magassy was engaged in a

successful plastic surgery practice in the Washington, D.C. area,

and Frances Magassy was engaged as a housewife.                  In their income

tax returns, the Magassys deducted from their ordinary income

$602,605, $1,137,377, and $454,678, respectively, in losses from

the   operation    of    their    yacht.       In    addition,    they    deducted

                                         -2-
$1,931,292 from their 1997 ordinary income based on the loss they

incurred from the yacht's sale.    The Commissioner disallowed these

deductions and sent the Magassys a notice of deficiency on June 25,

2001, citing income tax deficiencies of $245,790, $364,462, and

$989,450 for 1995, 1996, and 1997, respectively.        The Commissioner

based the disallowances on Internal Revenue Code ("I.R.C.") §§ 162,

183, and 280A.

          The    Magassys   (hereafter   "Taxpayers")    appealed   this

determination to the Tax Court, and after a two-day trial at which

the parties called thirteen witnesses, the Tax Court issued a

decision in favor of the Commissioner.         The Tax Court denied

Taxpayers the annual expense deductions under I.R.C. § 183 and

analyzed the 1997 loss-on-sale deduction under I.R.C. § 1231. With

respect to the expense deductions, the Tax Court observed that

Treasury Regulation § 1.183-2(b) sets out nine nonexclusive factors

for consideration, see 26 C.F.R. § 1.183-2(b), and proceeded to

address each factor, apply the circumstances of Taxpayers' case,

and resolve the factor against Taxpayers.       The court ultimately

concluded that Taxpayers had no actual and honest objective of

making a profit in owning, operating, and selling the yacht during

the tax years in question.     Consistent with this conclusion, the

court then found that the chartering activity leading up to the

vessel's sale did not constitute a trade or business for purposes

of I.R.C. § 1231.

                                  -3-
               The   underlying     facts   were   undisputed.        Dr.    Magassy

purchased the yacht -- a 1963 108-foot Feadship -- in 1990 after

Mark Mogul, a real estate broker who worked for Dr. Magassy's

brother-in-law's real estate firm, Legum & Norman, had presented

Dr. Magassy with the opportunity.              Mark Mogul's father, Lee Mogul,

owned a yacht brokerage firm in Fort Lauderdale, Florida, that was

offering the yacht for sale.           The Moguls told Dr. Magassy that the

vessel was available for $1.625 million and presented him with a

survey conducted by American Marine Surveyors, dated February 28,

1990, which listed the yacht's fair market value at $2.4 million

and its replacement cost at over $9 million.                     The report from

American Marine Surveyors noted that the survey was conducted while

the vessel was afloat and that when the vessel was last hauled out

of the water, the hull was "Audio Gauged and [it] indicated no

appreciable wastage to the steel hull."

               Shortly after learning of the opportunity, Dr. Magassy

executed       a   contract   to    purchase    the   yacht   from    Lee    Mogul's

brokerage, Boats, Yachts & Ships, for $1.625 million and subject to

specified contingencies.             The parties also executed a separate

agreement reducing the purchase price to $1.3 million and providing

that     the       "sales   price    include[]     the   total       and    complete

refurbishment of [the] vessel at approximately $300,000."                     Thus,

$300,000 of the $1.3 million was to go to refurbishment of the

yacht.    The contract and separate agreement also provided for the

                                        -4-
payment of a $78,000 fee to Legum & Norman by Boats, Yachts &

Ships; an exclusive listing with Boats, Yachts & Ships and Legum &

Norman for any resale of the yacht; and payment to William Norman

(Dr. Magassy's brother-in-law) and Mark Mogul of 25% of any net

profits realized from such a sale.

           Dr. Magassy never personally inspected the yacht prior to

closing.   Instead, Norman traveled to Florida and reported back

that the yacht was "terrific, . . . looks great."   But Dr. Magassy

did obtain an additional survey, which was conducted by Alexander

& Associates on May 9, 1990, also while the vessel was afloat.   The

survey stated that the yacht's market value was $1.85 million, its

fully restored value was $3.2 million, and its replacement cost was

$8.7 million.

           Closing on the purchase of the vessel occurred on May 29,

1990, at which time Dr. Magassy also closed on a $1 million loan

from NCNB National Bank of Florida.   As of May 29, however, Boats,

Yachts & Ships apparently did not yet own the yacht.      Lee Mogul

purchased the yacht for Boats, Yachts & Ships on May 30 for $1

million, and its seller was required to pay the brokerage a

$245,621 commission.

           The vessel thereafter remained in Lee Mogul's care until

the end of January 1991.   Dr. Magassy saw the yacht for the first

time in July 1990, when he discovered that it was in a state of

total disrepair.    Upon returning in November 1990, Dr. Magassy

                                -5-
found that little progress had been made on its restoration, and he

learned from Lee Mogul that the full $300,000 designated for

restoration work had been spent.    Having lost confidence in Mogul,

Dr. Magassy decided to have the yacht moved to Angus Shipyard in

Bayou La Batre, Alabama, for continued restoration work.

           In July 1991, Dr. Magassy filed suit against Lee Mogul,

Mark Mogul, and Boats, Yachts & Ships to recover the $300,000

intended   for    repairs,   alleging   breach   of   contract,   unjust

enrichment, and conversion.     Dr. Magassy, however, was never able

to effect service on the defendants.       Moreover, in October 1991,

the Florida Secretary of State administratively dissolved Boats,

Yachts & Ships.

           At Angus Shipyard, the vessel was removed from the water

and extensive hull deterioration was discovered.         Despite Angus'

initial estimate for restoration work of $218,000, by November

1991, Dr. Magassy had already paid $428,648 and had been billed for

an additional $527,637.      When Dr. Magassy refused to pay, Angus

Shipyard filed a maritime lien against the vessel and a suit in

federal court to enforce the lien.      The parties ultimately settled

the suit in November 1992, with Dr. Magassy paying Angus Shipyard

$300,000 in cash and giving it a $180,000 promissory note.

     In May 1992, Dr. Magassy's accountant referred him to a law

firm for tax advice regarding the sale of the yacht, since by then

"[t]he combined acquisition and refurbishing costs of the [yacht]

                                  -6-
substantially exceed[ed] the boat's fair market value."                        The law

firm prepared a memorandum analyzing whether a loss realized on the

sale of the yacht could be treated as a "§ 1231 loss" -- that is,

whether the loss could be treated as an ordinary loss and used to

offset   Taxpayers'      unrelated       ordinary    income.         The   memorandum

concluded    that    "[i]n   order     to   qualify      for   section     1231    loss

treatment,    Dr.    Magassy     would    be   required      to     commence   a   boat

chartering business and use the [yacht] in that business prior to

the sale."

            Following this advice, in December 1994, Dr. Magassy

created S.M.S.M., Inc., a Florida subchapter S corporation, of

which he was the sole shareholder and director and his wife was the

secretary-treasurer, and he registered the corporation as a sales

and charter boat dealer.         Weeks later, he listed the yacht for sale

with Richard Bertram Yachts for $2.4 million. The following March,

he transferred the yacht's title to S.M.S.M., and S.M.S.M. borrowed

$874,000 to refinance and pay off the NCNB purchase-money loan.

Also   during     this   period,      S.M.S.M.      signed     an    agreement     with

Priscilla Yacht Management, whereby the yacht became part of

Priscilla's charter fleet, and the yacht was subsequently featured

in a number of print advertisements in chartering magazines.

S.M.S.M. maintained separate checking and credit card accounts,

and,   starting     in   1996,   an   employee      of   Dr.      Magassy's    medical

                                         -7-
practice began keeping computerized records associated with the

company.

            From     January   1995   until     April   1997,    the   yacht    was

chartered to paying customers approximately 20 times.                     It was

chartered    twice    to   Plastic    Surgery    Associates,     Dr.   Magassy's

medical practice. And members of the Magassy family used the yacht

on numerous other occasions.          Dr. Magassy's two sons were aboard

the yacht during two March 1995 sea trials and a June 1995 charter

by Plastic Surgery Associates.           One of his sons was also aboard

during a July 1995 charter.           Dr. Magassy's daughter was aboard

during one of the March sea trials.           Mrs. Magassy was aboard during

the first March sea trial, and both she and Dr. Magassy were aboard

during the second sea trial, which was a four-day trip from Fort

Lauderdale, Florida to Hurricane Hole, Bahamas.             On at least three

additional    occasions,       different     Magassy    family    members      took

personal vacations on board the yacht while it was in the Bahamas.

On a number of occasions Taxpayers held dinner cruises and cocktail

parties on the vessel, and on other occasions, members spent

daytime and evening hours partying on the yacht without staying

overnight.

             In April, 1997, Dr. Magassy sold the yacht for $1.1

million, realizing a substantial loss.

                                       -8-
                                   II

            Taxpayers contend that the Tax Court erred in several

respects.    First, Taxpayers argue that the Tax Court applied the

wrong legal standard to determine whether they had a profit motive

under I.R.C. § 183.      They assert that the Tax Court's language

reveals that it applied a "reasonable man" standard, erroneously

asking whether Taxpayers were reasonable to expect to make a

profit, rather than whether they actually and honestly had the

objective of making a profit.     Second, Taxpayers contend that the

Tax Court clearly erred in its factual finding that they lacked a

profit motive.    In particular, they assign error to (1) the Tax

Court's application of the nine Treasury regulation factors; (2)

its failure to specify the exact point at which they lost their

profit motive, which the Commissioner conceded existed in 1990; (3)

the Tax Court's consideration of the ownership and operation of the

vessel as discrete activities in the profit motive analysis; and

(4) its use of the fact that they listed the yacht for sale at a

loss as an indication of a lack of a profit motive.             Finally,

Taxpayers assert that the exclusion of some of Dr. Magassy's

testimony on hearsay grounds was an abuse of discretion.

                                   A

            Taxpayers   first   argue   that   "[t]he   key   issue   for

resolution by [the court of appeals] is whether the Tax Court

employed and applied the proper legal (profit motive) standard in

                                  -9-
deciding the case."    Noting that I.R.C. § 183 commands an inquiry

into whether Taxpayers had "an actual and honest objective of

making a profit," rather than whether a reasonable person would

have expected such a profit, they contend that the Tax Court in

this case erred by employing a "reasonable person" standard.

            Internal Revenue Code § 183, the "hobby loss" provision,

limits deductions from activities not engaged in for profit to the

extent of gross income derived from such activities.    26 U.S.C. §

183(b). Activities by an individual or a subchapter S corporation,

however, that are in fact engaged in for profit, are not subject to

that limitation, and losses incurred from such activities are

deductible from the taxpayer's ordinary income under I.R.C. §§ 162

and 212.    See 26 U.S.C. §§ 183(a), 183(c).

            The key under § 183(b) to whether a taxpayer may deduct

losses from ordinary income generally lies in the determination of

whether the taxpayer had a profit motive in engaging in the

activity.    The starting point for addressing that question is

Treasury Regulation § 1.183-2 which provides in part:

     The determination whether an activity is engaged in for
     profit is to be made by reference to objective standards,
     taking into account all of the facts and circumstances of
     each case. Although a reasonable expectation of profit
     is not required, the facts and circumstances must
     indicate that the taxpayer entered into the activity, or
     continued the activity, with the objective of making a
     profit. . . . In determining whether an activity is
     engaged in for profit, greater weight is given to
     objective facts than to the taxpayer's mere statement of
     his intent.

                                -10-
26 C.F.R. § 1.183-2(a); see also Faulconer v. Commissioner, 748

F.2d 890, 894-902 (4th Cir. 1984) (applying § 1.183-2(a)).

             Taxpayers in this case contend that various statements

that   the   Tax   Court   made   in    its   opinion   employing   the   term

"reasonable" indicate that the court ignored the proper legal

standard.     Our review of those statements, however, leads us to

conclude that, far from evidencing the employment of an erroneous

standard, the Tax Court's statements show its faithful application

of Treasury Regulation § 1.183-2(a) and Faulconer.              The Tax Court

was required to refer to "objective standards" and determine

whether "the facts and circumstances" of Taxpayers' case actually

supported the asserted profit objective.           26 C.F.R. § 1.183-2(a);

Faulconer, 748 F.2d at 894.            And the Faulconer Court made clear

that "[a] taxpayer's mere statement of intent is given less weight

than objective facts." 748 F.2d at 894. Taxpayers, instead, would

have   the   court   blindly   adopt     their   assertions    of   intent   as

sacrosanct.    Such an interpretation of the standard is contrary to

precedent and the regulations.          We conclude, accordingly, that the

Tax Court properly applied the governing legal standard in its

I.R.C. § 183 analysis.

                                        B

             Taxpayers next contend that the Tax Court improperly

found as fact that they lacked a profit motive.               We review these

                                       -11-
findings for clear error.            See Hendricks v. Commissioner, 32 F.3d

94, 97 (4th Cir. 1994).

               According to Treasury Regulation § 1.183-2(b), "[i]n

determining whether an activity is engaged in for profit, all facts

and circumstances with respect to the activity are to be taken into

account," and "[n]o one factor is determinative."                         26 C.F.R. §

1.183-2(b).         In addition, the regulation sets out nine factors for

consideration, although "it is not intended that only [those]

factors    .    .    .   are   to   be   taken   into      account   in    making    the

determination, or that a determination is to be made on the basis

[of] the number of factors" supporting a conclusion.                    Id.    In other

words, the regulation intends to be a wide-ranging qualitative

analysis.        See Faulconer,          748   F.2d   at   896-902     (applying     the

factors). The listed factors, "which should normally be taken into

account," are:

     (1)       Manner in which           the   taxpayer      carries      on   the
               activity. . . .

     (2)       The expertise of the taxpayer or his advisors. . .
               .

     (3)       The time and effort expended by the taxpayer in
               carrying on the activity. . . .

     (4)       Expectation that assets used                 in   activity      may
               appreciate in value. . . .

     (5)       The success of the taxpayer in carrying on other
               similar or dissimilar activities. . . .

     (6)       The taxpayer's history of income or losses with
               respect to the activity. . . .

                                          -12-
       (7)   The amount of occasional profits, if any, which are
             earned. . . .

       (8)   The financial status of the taxpayer. . . .

       (9)   Elements of personal pleasure or recreation. . . .

26 C.F.R. § 1.183-2(b).       In addition, "at all times, the taxpayer

has the burden of showing that the activity was engaged in for

profit."     Hendricks, 32 F.3d at 98.

             In its opinion, the Tax Court addressed each of the nine

factors and concluded that, based on the facts, each suggested the

absence of an actual and honest profit motive by the Taxpayers.            As

to factor (1), the Tax Court found that the Taxpayers' endeavor was

not conducted in a businesslike manner:            no business plans or

restoration budget was ever produced; no reasonable investigation

was made; and the restoration work was not properly monitored.              As

to factor (2), the court found that Taxpayers had no experience in

owning or investing in yachts and that those they relied on as

"experts" were all interested parties.         As to factor (3), the Tax

Court noted Taxpayers' lack of time devoted to the restoration and

chartering of the yacht.       As to factor (4), the Tax Court stated

that even though Taxpayers might have had an expectation in 1990

that   the   yacht   would   appreciate   in   value,   by   1995   any   such

expectation had evaporated, given the price at which the yacht was

listed for sale in 1994.        As to factor (5), the Tax Court noted

Taxpayers' lack of any former experience in yacht chartering or

restoration.      As to factor (6), the Tax Court observed that

                                   -13-
S.M.S.M. incurred substantial and mounting losses, year after year,

and that there was no way by which Taxpayers could honestly have

expected to generate positive net income from the chartering

activities. In addition, the Tax Court observed that the yacht was

listed for sale at a price at which it would have been impossible

for Taxpayers to have generated any income.           As to factor (7), the

Tax Court noted the existence of continuing losses from chartering

the yacht and the impossibility of Taxpayers' profiting from the

yacht's    sale.   As   to   factor   (8),   the     Tax   Court    pointed   to

Taxpayers' substantial income from sources other than the loss-

producing activity to "indicate that the activity [was] not engaged

in   for   profit[,]    especially    if     there    [were]       personal   or

recreational elements."       26 C.F.R. § 1.183-2(b)(8).             The court

noted that the significant losses of S.M.S.M. served to shield

Taxpayers' unrelated income from taxation.            And as to factor (9),

the Tax Court noted the inherent recreational element involved in

the ownership of a luxury motor yacht.          These findings are amply

supported by the record, and we hold that they appropriately lead

to the conclusions under Treasury Regulation § 1.183-2(b) that the

Tax Court reached.

            Taxpayers contend that in applying these factors, the Tax

Court was required to have identified the exact moment between 1990

and 1995, at which they lost their profit motive.            While Taxpayers

correctly note that the Commissioner conceded their genuine and

                                  -14-
honest   profit   motive   in    acquiring     the    yacht   in   1990,     they

themselves   concede   that     "every   tax   year    presents    a   new    and

different cause of action."       In this case, the Tax Court correctly

considered the factors relevant only to the three years for which

the Commissioner denied the deductions.

           Taxpayers also argue that the Tax Court erroneously

failed to consider ownership and operation of the vessel as a

single activity. They argue that if the ownership and operation of

the yacht are viewed together, their profit motive for the sale of

the vessel rendered any lack of profit motive for the chartering

operations irrelevant.     This argument, however, flies in the face

of the facts of this case.         There is no evidence to support a

profit motive for the sale of the vessel because by 1995, Taxpayers

had listed the vessel for sale at a price that made it impossible

for them to realize a profit.

           Taxpayers respond to this observation by contending that

listing the yacht for sale at a loss was not inconsistent with

their having a profit motive because "profit" in this case "is

synonymous with capital preservation." Their only support for this

argument, however, is Feldman v. Commissioner, 55 T.C.M. (CCH) 450

(1988), and that case is not on point.                 In Feldman, a case

involving the application of I.R.C. § 183 to a taxpayer's ownership

and chartering of a sailboat, the Tax Court merely stated that

"petitioner's actions in discontinuing operations after less than

                                    -15-
one charter season and putting the boat up for sale indicate that

tax motives were not uppermost in petitioner's mind."          Id. at 454.

"Had [Feldman] been primarily interested in reaping tax benefits,"

the Tax Court continued, "he would certainly have held the yacht

longer than the one charter season he did, before offering it for

sale."    Id.   That, however, is exactly what Taxpayers did in this

case.    They continued to refurbish, operate, and charter the yacht

at a loss, knowing that they would never be able to recoup those

losses at the time of the yacht's sale.

            For all of the reasons stated, we conclude that the Tax

Court did not clearly err in its findings of fact under I.R.C. §

183.

                                   C

            Finally, Taxpayers argue that the Tax Court erroneously

excluded certain of Dr. Magassy's testimony on hearsay grounds.

According to Taxpayers, this testimony should have been admitted to

establish Dr. Magassy's actual and honest belief regarding profit

motive.

       While Taxpayers' attorney was questioning Dr. Magassy as to

his conversations with Lee Mogul about chartering the yacht, the

attorney asked, "Do you remember how many weeks he said, for the

chartering?"      The   Commissioner   objected,   and   the   Tax   Court

sustained the objection on hearsay grounds.          Dr. Magassy then

testified that, based on his conversations with Lee Mogul, he

                                 -16-
thought the chartering was "[v]ery doable" -- that is, profitable.

The attorney then asked him if Lee Mogul "[told] [him] it was

doable?"   And the Tax Court sustained the Commissioner's objection

to that question as well.     Taxpayers argue that "[p]reventing [Dr.

Magassy] from testifying as to what was in his mind, which is the

only relevant issue, prevented the Tax Court from making a proper

factual finding."

            But Taxpayers' attorney never asked that the testimony be

admitted only for the purpose of showing Dr. Magassy's state of

mind.   Moreover, Dr. Magassy was permitted to testify to his state

of mind -- that he, based on his conversation with Lee Mogul,

thought that the chartering business could be profitable.           The Tax

Court's    evidentiary   rulings   did    not   amount   to   an   abuse   of

discretion.

                                   III

            Taxpayers failed to address directly the Tax Court's

disallowance of their deduction of the loss from the sale of the

yacht in 1997.      The deductibility of that loss is governed by

I.R.C. § 1231, which creates an even higher hurdle for Taxpayers

than does I.R.C. § 183.     Internal Revenue Code § 1231 allows a net

gain to be treated as a long-term capital gain, but allows a net

loss to be deducted from ordinary income.                See 26 U.S.C. §

1231(a)(1), (a)(2).      To qualify under I.R.C. § 1231, however, the

gain or loss must have been recognized "on the sale or exchange of

                                   -17-
property   used   in   [a]   trade   or   business."   26   U.S.C.    §

1231(a)(3)(A)(i) (emphasis added); id. § 1231(a)(3)(B).

           The Tax Court noted that "[i]n analyzing whether an

activity in connection with which property is sold constituted a

trade or business (for purposes of ordinary loss treatment under

section 1231), a taxpayer<s profit objective, or lack thereof,

relating to the activity is particularly significant."      The court

went on to conclude, "because of the lack of profit objective

associated with the charter of the [yacht], the charter activity

relating to the [yacht] . . . did not constitute a trade or

business, and the [yacht] does not qualify for treatment as trade

or business property under section 1231."

           Because the Tax Court correctly determined that Taxpayers

lacked a profit motive in operating and chartering the yacht, as we

have already noted, it must follow that the chartering activity

does not qualify as a trade or business under I.R.C. § 1231.         As

the Supreme Court stated in Commissioner v. Groetzinger:

     [N]ot every income-producing and profit-making endeavor
     constitutes a trade or business. . . . We accept the fact
     that to be engaged in a trade or business, the taxpayer
     must be involved in the activity with continuity and
     regularity and that the taxpayer's primary purpose for
     engaging in the activity must be for income or profit.
     A sporadic activity, a hobby, or an amusement diversion
     does not qualify.

480 U.S. 23, 35 (1987); see also Helvering v. Highland, 124 F.2d

556, 561 (4th Cir. 1942) (noting that "the profit motive and

presence of business-like policies should be given great weight" in

                                 -18-
determining whether an activity qualifies as a trade or business).

Thus, we conclude that the Tax Court did not err in its application

of I.R.C. § 1231.

                                                          AFFIRMED

                               -19-


                                                                                FILED
                                                                                COURT t'OF APPEALS
                                                                                C)!           1SlC    TI

                                                                                2014 JA W77              N 10: 23
                                                                                r   .   .

    IN THE COURT OF APPEALS OF THE STATE OF W                                                                   S IPS .   ON
                                                                                By_
                                            DIVISION II

STATE OF WASHINGTON,                                                   No. 43247 -1 - II

                                   Respondent;
                                                                 UNPUBLISHED OPINION
         V.

BRUCE ALBERT STEWART,

                                   0

         WORGEN, J. —      A jury convicted Bruce Albert Stewart of second degree assault based on

an attack against Richard Yanac. The State' s case against Stewart relied heavily on inculpatory

statements Stewart made to the investigating officer. Stewart appeals his conviction, alleging

that ( 1) an erroneous jury instruction relieved the State of its burden of proving recklessness

beyond   a reasonable    doubt; ( 2) prosecutorial misconduct infringed on his right to pre -arrest

silence; (    3) insufficient evidence supports his conviction and the admission of his inculpatory

statements; and ( 4) ineffective assistance of counsel deprived him of a fair trial. We affirm.

                                                  FACTS

         In June 2010, Yanac was assaulted in front of the residence of Judy Orr. Deputy Donald

Meserve responded to the assault and saw paramedics loading Yanac into an ambulance in front

of Orr' s house. Meserve asked Yanac what had happened, and Yanac stated that he had been

 jumped,"      but could not recall anything else. Verbatim Report of Proceedings ( VRP) at 104 -05.

Yanac    sustained severe    injuries.
No. 43247 -1 - H

        During his long recovery process, Yanac eventually recalled having seen Stewart outside

Orr' s house shortly before the injury. After Yanac discovered that he had to file a police report

in order to obtain assistance with his medical bills, he contacted police and spoke with Detective

Timothy Keeler.

        Based on his conversations with Yanac, Keeler unsuccessfully attempted to contact

Stewart by telephone. A few months later, Stewart appeared at the prosecutor' s office, where

Keeler arrested him. Keeler took Stewart to a conference room, read him the Miranda'

warnings, and interrogated him. Stewart waived his rights and made the inculpatory statements

described below.

        The prosecutor ultimately charged. Stewart with second degree assault. After a CrR 3. 5

hearing, the trial court determined that Stewart' s statements to Keeler were admissible. A jury

was selected and trial commenced on February 27, 2012.

        At trial, Yanac testified that he remembered arriving at Orr' s house on the day of the

assault and   seeing Stewart   approach   shortly before " the lights   went out."   VRP at 68 -69. He

found himself sitting on the ground when he regained consciousness, saw his smashed cell phone

nearby, and thought he " might have seen" Stewart again. VRP at 69, 82. Yanac then lost

consciousness again, and had no further memory of the events until he awoke on Orr' s couch.

        Yanac admitted that he did not know what caused the injuries or whether Stewart hit him.

Yanac explained that he had suffered from seizures " once or twice every six months or so" since

before the assault. VRP at 75 -76. The seizures caused him to lose consciousness, and he

sometimes could not remember what had happened.

 Miranda v. Arizona, 384 U.S. 436, 86 S. +Ct. 1602, 16 L. Ed. 2d 694 ( 1966).

                                                      2
No. 43247 -1 - II

         Keeler testified that, after initially denying involvement, Stewart eventually admitted that

he had followed Yanac to Orr' s house                and punched     him " about three times," although Stewart

also stated that he did not intend to hurt Yanac so badly. VRP at 96 -97. Stewart claimed he was

angry with Yanac because Yanac had visited Stewart' s girl friend and " made her feel

uncomfortable."              VRP at 97. Stewart stated that, after the assault, he warned Yanac to stay away

from his girl friend. Keeler referred briefly in his testimony to the fact that, prior to his arrest,

Stewart had failed to return a number of Keeler' s calls. The defense did not object.

         Meserve described Yanac' s visible injuries as bruising around the right eye and a large

lump on the left side of the forehead, and the trial court admitted photographs taken at the scene

by another officer. In response to the prosecutor' s questions, Meserve stated that he had asked

Yanac    what        had happened,     and that "[   h] e said he   was   jumped." VRP at 104. The defense did

not object.

         The         court   instructed the jury   on   the elements of second degree   assault: "   A person

commits the crime of assault in the second degree when he or she intentionally assaults another

and   thereby recklessly inflicts         substantial     bodily harm." . Supp. Clerk' s Papers at 43 ( Supp. CP).

The trial court instructed the jury on the definition of "recklessness" for purposes of causing

substantial bodily harm.

          A person is reckless or acts recklessly when he or she knows of and disregards a
          substantial risk that a wrongful act may occur and this disregard is a gross
          deviation from conduct that a reasonable person would exercise in the same
          situation.           Recklessness is also established if a person acts intentionally or
          knowingly.

Supp. CP        at   46; 11 Washington Practice, 'Washington Pattern             Jury Instructions: Criminal 10. 03,

at   150 ( 2d   ed.    1994) ( WPIC). The defense did not object.

                                                                3
No. 43247 -1 - II

           In closing argument, the prosecutor referred to the fact that Stewart had not returned

Keeler' s    calls,   describing     it   as "[   his]   choice."   VRP at 155. The defense did not object.

           The jury returned a guilty verdict, and Stewart timely appealed.

                                                              ANALYSIS

                                  I. THE TRIAL COURT' S RECKLESSNESS INSTRUCTION

           Stewart    contends      that the trial court' s instruction that "[ r] ecklessness also is established if

a person acts intentionally or knowingly" improperly created a mandatory presumption. Br. of

Appellant at 9 -12. He argues that a reasonable juror could have interpreted this instruction to

require finding recklessness as to the infliction of substantial bodily harm upon proof that

Stewart intentionally punched Yanac.

           As a threshold issue, because Stewart did not object to the trial court' s instruction

concerning recklessness, the question arises whether we should even consider the claim. RAP

2.5( a) allows appellate courts to decline to consider issues not properly raised in the trial court,

but provides an exception where a party raises a " manifest error affecting a constitutional right."

The State argues we should not consider Stewart' s claim because the alleged error was not

 manifest."        Br. of Resp' t at 6.

           The test under RAP 2. 5( a) often overlaps with the analysis of the merits of the claimed

error.     See State   v.    Walsh, 143 Wn.2d 1,            8, 17 P. 3d 591 ( 2001) ( in determining whether an error

is   manifest, we " preview[]             the merits of the claimed constitutional error to determine whether the

argument      is   likely   to   succeed ").      Therefore, we evaluate whether the instruction was erroneous,

and   if   so whether       the error     was " manifest."      To fall   within   the exception in RAP 2. 5( a), the

instruction must both be erroneous and manifest.

                                                                     M
No. 43247 -1 - H

         A "misstatement of the law in a jury instruction that relieves the State of its burden to

prove every element of the crime charged" generally requires reversal unless the State shows

beyond a reasonable doubt that the error slid not contribute to the verdict. State v. Thomas, 150

Wn.2d 821, 844 -45, 83 P.3d 970 ( 2004).              A court makes such a misstatement of the law by

giving an instruction which creates " a conclusive or irrebuttable presumption to find an element

of a criminal offense" upon proof of predicate facts. State v. Savage, 94 Wn.2d 569, 573, 618

P. 2d 82 ( 1980). An instruction creates such a presumption if "a reasonable juror might interpret

the   presumption as      mandatory."        State v. Beal, 128 Wn.2d 693, 701, 911 P. 2d 996 ( 1996).

         Our decisions reveal some disagreement as to whether the instruction given, former

WPIC 10. 03,        was erroneous.        Compare State v. Hayward, 152 Wn. App. 632, 645, 217 P.3d 354

 2009) ( finding      error because " the previous version of WPIC 10. 03 ( 1994) did not adequately

follow" the assault statute, as demonstrated in part by the subsequent change in the instruction)

with   State   v.   Holzknecht, 157 Wn.       App. 754,     765, 238 P.3d 1233 ( 2010) ( finding        no error and

noting that "[ c] larification of the standard instruction does not amount to an indictment of earlier

versions ") and       State   v.   Keend, 140 Wn.   App. 858, 868,       166 P. 3d 1268 ( 2007) ( rejecting an

argument identical to Stewart' s on the grounds that the to- convict instruction accurately set out

which mental state applied to the act as opposed to the result, and " the jury is presumed to read

 and   follow] the trial      court' s   instructions as   a whole,   in light   of all other   instructions "). We do

not reach the issue because even if the instruction were erroneous, the nature of the error was not

 manifest" for purposes of RAP 2. 5( a).

                                                               5
No. 43247 -1 - II

             A "manifest"     error results        in " actual   prejudice,"   namely " practical and identifiable

consequences"        at   trial.   State    v.   Gordon, 172 Wn.2d 671, 676, 260 P. 3d 884 ( 2011) ( internal

quotation marks omitted) (                quoting State v. O' Hara, 167 Wn.2d 91, 99, 217 P.3d 756 ( 2009)).

In O' Hara, however, our Supreme Court clarified that " to ensure the actual prejudice and

harmless error analyses are separate, the focus of the actual prejudice must be on whether the

error   is   so obvious on the record that the             error   warrants appellate review."     O' Hara, 167 Wn.2d

at   99 -100. Thus, " to determine whether an error is practical and identifiable, the appellate court

must place itself in the shoes of the trial court to ascertain whether, given what the trial court

knew     at   that time, the court         could have    corrected    the error."   O' Hara, 167 Wn.2d at 100.

             Based on what it knew in February 2012, the trial court would not have had the

opportunity to correct any potential error in the instruction absent a timely objection. Were we

to find it erroneous, we could nonetheless point to no consensus of opinion or controlling

authority establishing the error of the instruction. Nor is it so glaring as to promptly draw the

attention of any legally -
                         trained mind. Thus, for the trial court to properly conclude the

instruction created an impermissible presumption would have required some research and

analysis. It is unreasonable to expect a trial court to engage in that level of inquiry absent a

timely and specific objection. Any potential error was therefore not " manifest" within the

meaning articulated by the O' Hara court, 167 Wn.2d at 100, and we thus decline to consider the
                                      2
issue   under     RAP 2. 5(    a) .

2
     We note that the Hayward court held that the use of former WPIC 10. 03 was a manifest error
affecting a constitutional right. Hayward; 152 Wn. App. at 643 n.4 ( citing State v. Goble, 131
Wn.  App. 194, 202 -03, 126 P. 3d 821 ( 2005)). Hayward, however, was decided before our
Supreme Court clarified RAP 2.5' s use of "manifest" in O' Hara. Following O' Hara, our
analysis concludes that any error in the instruction by the trial court was not manifest under RAP

                                                                     Cei
No. 43247 -1 - II

                 II. PROSECUTORIAL MISCONDUCT AND COMMENT ON PRE -ARREST SILENCE

              Stewart argues that the prosecutor improperly elicited testimony concerning Stewart' s

failure to return Keeler' s calls, and improperly commented on this evidence in closing. Stewart

alleges this prejudiced him by infringing on his Fifth Amendment privilege against self-

incrimination. We disagree.

A.            Standard of Review

              An appellate court will generally reverse a conviction due to prosecutorial misconduct

only if the defendant establishes that the conduct was both improper and prejudicial. State v.

Gregory,        158 Wn.2d 759, 809, 858, 147 P. 3d 1201 ( 2006). We must consider the effect of a

prosecutor' s improper conduct in light of the full trial context: the evidence, issues, and

arguments presented in the case, and the instructions given to the jury. State v. Monday, 171

Wn.2d 667, 675, 257 P. 3d 551 ( 2011) (           citing State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221

 2006)).

              A defendant establishes sufficient prejudice to require reversal only by showing a

substantial likelihood the misconduct affected the verdict. Monday, 171 Wn.2d at 675 ( citing

State    v.    Yates, 161 Wn.2d 714, 774, 168      P. 3d 359 ( 2007)). Furthermore, failure to timely object

to   a prosecutor' s      improper   comment constitutes a waiver, unless         the   remark was "`   so flagrant

and     ill-intentioned that it    evinces an   enduring   and   resulting   prejudice "'   that no curative

instruction       could   have   remedied.   Gregory, 158 Wn.2d at 841 ( quoting State v. Stenson, 132

Wn.2d 668, 719, 940 P. 2d 1239 ( 1997)).            Further, even otherwise improper remarks do not

2. 5(   a).   Thus, for purposes of RAP 2. 5( a) we need not examine further whether it affects a
constitutional right.

                                                            7
No. 43247 -1 - II

require reversal, "   if they were invited or provoked by defense counsel and are in reply to his or

her acts and statements, unless the remarks are not a pertinent reply or are so prejudicial that a

curative   instruction   would   be ineffective." State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747

 1994).

          A prosecutor' s comment on pre -arrest silence violates a defendant' s Fifth Amendment

rights, and we review such misconduct under the constitutional harmless error standard.

Gregory, 158 Wn.2d at 839; State v. Easter, 130 Wn.2d 228, 238 -39, 242, 922 P.2d 1285 ( 1996).

Mere passing reference to pre -arrest silence, however, does not amount to a constitutional

violation, and thus does not merit reversal unless the defendant can show sufficient prejudice

under the usual prosecutorial misconduct standard discussed above. State v. Burke, 163 Wn.2d

204, . 16, 181 P. 3d 1 ( 2008).
     2

B.        Discussion

          The record shows that the prosecutor did not intentionally elicit or dwell on Keeler' s

testimony concerning Stewart' s failure to return calls:

          Q. And what happened when you met with Mr. Stewart?
          A. I let him know that I had previously tried to         contact   him —he hadn' t returned
          my   calls —   and informed him that there was probable cause for his arrest, and I
          arrested him.
          Q. When you arrest someone, that means they get handcuffed, right?

VRP at 90. In this exchange, the prosecutor did not even ask about Stewart' s failure to return

calls; he simply asked what happened when the officer met with Stewart. Without more, this can

hardly be said to be the intentional eliciting of testimony about not returning calls. Further, the

officer' s statement, "   he hadn' t   returned   my   calls" was not even responsive   to the question   posed
No. 43247 -1 - II

by the prosecutor as to what happened when the officer met with Stewart. It was the defendant' s

responsibility to object to a nonresponsive answer of the witness.

          Finally, this testimony qualifies at most as a passing reference to pre -arrest silence. See

Burke, 163 Wn.2d at 216 n.7 ( discussing the distinction between an improper comment on and a

passing   reference   to   pre -arrest silence and   compiling   cases);   State v. Lewis, 130 Wn.2d 700, 703-

04, 707, 927 P.2d 235 ( 1996) ( holding         that a police officer' s testimony that he told the defendant

that " if he was innocent he should just come in and talk to me about it" did not amount to a

comment on silence).         Therefore, because Stewart makes no showing that the prosecutor asked

any improper question or that the passing reference to pre -arrest silence caused prejudice, let

alone that a curative instruction could not have remedied any such prejudice,3 his claim

concerning Keeler' s testimony fails. See Burke, 163 Wn.2d at 221.

          We also find Stewart' s argument concerning the prosecutor' s remarks in closing

unpersuasive. The prosecutor' s statement that Stewart' s failure to " tell the police how he was

involved    with   the injuries to Mr. Yanac until many months had gone            by"   was "[   his] choice,"

VRP 155, also appears to qualify as a passing reference to pre -arrest silence because the

prosecutor mentioned it only once and did not suggest that the jury infer guilt from Stewart' s

lack of cooperation. See Burke, 163 Wn.2d at 216.

          More to the point, a prosecutor may present a fair response to defense counsel' s

arguments and argue that the evidence does not support a defense theory. Russell, 125 Wn.2d at

87. Here, the context makes clear that the prosecutor made the challenged argument in response

3
    Stewart merely    alleges   that "[ b] y calling ...   attention to Mr. Stewart' s failure to come forward
and cooperate in the investigation, the government improperly used his pre -arrest silence to
imply guilt." Br. of Appellant at 23.

                                                            X
No. 43247 -1 - II

to defense counsel' s contention that " recognizing [ that Stewart' s inculpatory] statement is made

eight months        later, it' s   not   exactly the smoking    gun   that the State implies."     Compare VRP at

150 with VRP at 155. Thus, the challenged remark plainly qualifies as a fair response to

argument made by defense counsel.

              Stewart shows neither improper conduct nor resulting prejudice. We thus reject

Stewart' s claim that prosecutorial misconduct deprived him of a fair trial.

                             III. SUFFICIENCY OF t4E EVIDENCE AND CORPUS DELICTI

              Stewart contends that the State failed to present sufficient evidence of causation and

recklessness, two essential components of second degree assault. Stewart first argues that these

alleged deficiencies alone require reversal. He also contends that the alleged evidentiary

deficiencies, combined with the absence of independent evidence that Stewart intentionally

assaulted Yanac, required exclusion of his confession under the corpus delicti rule.

              In evaluating the sufficiency of the evidence, we review the evidence in the light most

favorable to the State. State             v.   Ehrhardt, 167 Wn.     App.   934, 943, 276 P.3d 332 ( 2012) ( citing

State    v.   Drum, 168 Wn.2d 23, 34, 225 P. 3d 237 ( 2010)). We                  ask "`   whether any rational fact

finder    could    have found the         essential elements of   the   crime   beyond     a reasonable   doubt. "' Drum,

168 Wn.2d         at   34 -35 ( quoting State     v.   Wentz, 149 Wn.2d 342, 347, 68 P. 3d 282 ( 2003)). An

appellant who claims that insufficient evidence supports his conviction " admits the truth of the

State'   s evidence and all reasonable             inferences therefrom."       Ehrhardt, 167 Wn. App. at 943

 citing Drum, 168 Wn.2d at 35).

              Where " the inferences and underlying evidence are strong enough to permit a rational

fact finder to find guilt beyond a reasonable doubt, a conviction may be properly based on

                                                                10
No. 43247 -1 - II

pyramiding inferences."           State v. Bencivenga, 137 Wn.2d 703, 711, 974 P. 2d 832 ( 1999)

internal    quotation marks omitted).          Inferences drawn from circumstantial evidence " must be

reasonable and cannot          be based   on speculation."    State v. Vasquez, 178 Wn.2d 1, 16, 309 P.3d

318 ( 2013) ( citing       Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560

 1979)).    A jury may properly infer the mental element of an offense " from the conduct where it

is plainly indicated        as a matter of   logical probability." State v. Delmarter, 94 Wn.2d 634, 638,

618 P.2d 99 ( 1980).

        The corpus delicti rule requires the State to prove every element of the specific crime

charged by evidence independent of the defendant' s statement. State v. Brockob, 159 Wn.2d

311, 329, 150 P. 3d 59 ( 2006); State          v.   Dow, 168 Wn. 2d 243, 254, 227 P. 3d 1278 ( 2010). The

State must present evidence sufficient to establish each element of the crime by logical and

reasonable inferences consistent with guilt and inconsistent with a reasonable hypothesis of

innocence. Brockob, 159 Wn.2d at 327 -28. The independent evidence need only establish a

prima facie case, not " establish the corpus delicti beyond a reasonable doubt, or even by a

preponderance of           the proof."   State v. Meyer, 37 Wn.2d 759, 763 -64, 226 P.2d 204 ( 1951)

 quoted    in State   v.   Aten, 130 Wn.2d 640, 656, 927 P. 2d 210 ( 1996)).     Such a prima facie case,

furthermore, does not require evidence identifying the accused as the perpetrator; the State may

rely on the inculpatory statement itself to prove identity. Meyer, 37 Wn.2d at 763. In

considering whether sufficient evidence supports admission of a confession, we also review the

evidence in the light most favorable to the State. Brockob, 159 Wn.2d at 328.

           To establish the elements of second degree assault, the State had to prove that Stewart

intentionally assaulted Yanac and thereby recklessly inflicted substantial bodily harm. RCW

                                                             11
No. 43247 -1 - II

9A. 36. 021(   a).   Stewart did not raise a corpus delicti objection to the introduction of Keeler' s

testimony about Stewart' s confession and makes no argument that his corpus delicti challenge

may be raised for the first time on appeal under RAP 2.5. Therefore, we consider the corpus

delicti challenge to Stewart' s confession only in the context of Stewart' s claim of ineffective

assistance of counsel.

         Alternatively, were we to reach the corpus delicti issue on its merits, ample evidence
                                                            Meserve4

supports admission of           Stewart'   s confession.                described Yanac' s injuries, including

significant visible injuries to the face and forehead; laid the foundation for the admission of

photos showing those injuries; and testified that, as the paramedics loaded Yanac into the

ambulance, Yanac            stated   he had been " jumped."     Br. of Resp' t at 24. Because significant facial

bruising alone qualifies as substantial bodily harm, this suffices to establish the corpus delicti of

second   degree      assault.    See State    v.   McKtgue, 172 Wn.2d 802, 806, 262 P. 3d 1225 ( 2011); State

v.   Hovig,   149 Wn.       App.     1, 5, 13, 202 P. 3d 318 ( 2009);   State v. Ashcraft, 71 Wn. App. 444, 455,

859 P. 2d 60 ( 1993).         Thus, we conclude Stewart' s confession was properly admitted because the

State proved a prima facie case of second degree assault by independent evidence.

         With Stewart' s confession, the evidence showed that Stewart admitted to Keeler that he

followed Yanac to Orr' s residence and repeatedly punched Yanac because Yanac had made

Stewart' s girl friend feel uncomfortable. The State introduced photographs showing Yanac' s

4 Stewart also did not object to Meserve' s testimony. that Yanac stated he had been jumped.
Under RAP 2. 5(       we review alleged errors not objected to below only if they fall within one of
                      a),

the rule' s listed exceptions. See, e. g., State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 ( 1988).
Stewart makes no claim that the admission of Yanac' s statement about having been jumped falls
within any of these exceptions. Thus, we consider any challenge to that statement only in the
context of Stewart' s claim of ineffective assistance of counsel.

                                                              12
No. 43247 -1 - II

injuries shortly after the incident, including significant facial bruising. Yanac testified that he

saw Stewart approaching shortly before the incident and might have seen Stewart near him

during the events.

         From this evidence, a rational juror could infer that Stewart ( 1) punched Yanac on

purpose, (2) knew of a substantial risk that the punches would cause injuries resulting in

significant        disfigurement     or   impairment of     a   bodily   function, ( 3) disregarded that risk under

circumstances amounting to a gross deviation from the conduct of a reasonable person under the

circumstances, and finally (4) that Stewart' s punches actually did cause such injuries. This

evidence suffices to support Stewart' s conviction.

                                      IV. INEFFECTIVE ASSISTANCE OF COUNSEL

         Stewart alleges that his attorney' s performance was deficient by failing to object to ( 1)

the   admission of        Stewart'   s confession under         the corpus delicti   rule, ( 2)   the admission of police

testimony concerning the victim' s remarks following the assault, and ( 3) the prosecutor' s

reference to evidence of Stewart' s pre -arrest silence in closing. Stewart alleges that these

failures caused him prejudice because these challenges would have succeeded, effectively

excluding evidence essential to the State' s case.

A.           Standard of Review

             To prevail on a claim of ineffective assistance of counsel, an appellant must show

              1)   that   defense    counsel' s        conduct   was     deficient, i.e.,   that it fell below an
             objective     standard       of    reasonableness;     and (   2)   that the deficient performance
             resulted     in   prejudice,that there is a reasonable possibility that, but for the
                                               i.e.,
             deficient conduct, the outcome of the proceeding would have differed.

State   v.   Reichenbach, 153 Wn.2d 126, M, 101 P.3d 80 ( 2004) ( applying                           the test from

Strickland v. Washington, 466 U. S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984)). Thus,

                                                                   13
No. 43247 -1 - II

an appellant who bases an ineffective assistance claim on counsel' s failure to object to the

admission of evidence must show that the trial court would likely have sustained the objection

and that a more favorable outcome would have resulted absent that evidence. State v.

McFarland, 127 Wn.2d 322, 336, 337         n. 4,   899 P. 2d 1251 ( 1995). Furthermore, the appellant

only overcomes the strong presumption that counsel performed adequately by showing that " no

conceivable legitimate tactic" explains the attorney' s conduct. Reichenbach, 153 Wn.2d at 130.

B.       Discussion

         Stewart' s claim regarding the prosecutor' s comment on pre -arrest silence, addressed

above, has no merit. The prosecutor did nothing improper, so the trial court would have

overruled any objection. Furthermore, Stewart cannot show that the remarks had any effect on

the outcome of the trial.

         Without Stewart' s inculpatory statements to Keeler, on the other hand, the State' s case

would likely have collapsed. As discusser) above, however, a challenge to the admission of

Stewart' s inculpatory statements under the corpus delicti rule could only have succeeded without

Meserve' s testimony concerning Yanac' s statement, made shortly after the incident, that he had

been " jumped. "5 This statement, combined with the fact of Yanac' s injuries, gave rise to the

5
    Stewart argues that, without an " explanation as to what Yanac meant by the word `jumped, "'
no evidence establishes an   intentional   assault.    Br.   of   Appellant   at   21.   The claim has no merit.

A standard dictionary reveals that, when used as a transitive verb, the word "jump" commonly
      to attack suddenly or unexpectedly" or " pounce upon." WEBSTER' s TIC NEw
means "

INTERNATIONAL DICTIONARY 1225 ( 2002). Appellate courts presume that jurors understand

words in their ordinary meaning. See Strandberg v. N. Pac. Ry. Co., 59 Wn.2d 259, 263, 367
P.2d 137 ( 1961).

                                                       14
No. 43247 -1 - II

                                                                                6
reasonable      inference that   someone   had   perpetrated second   degree   assault.       Thus, the merit of

Stewart' s ineffective assistance claim depends on whether defense counsel' s failure to object to

Meserve' s testimony fell below an objective standard of reasonableness.

             The State argues that a hearsay objection to Meserve' s testimony would have been futile

because Yanac' s statement qualifies as an " excited utterance. ,7 Br. of Resp' t at 24. We agree.
Yanac' s statement that he had been " jumped" was made immediately after the assault as

paramedics were loading him into the ambulance. He had suffered severe injuries and was

obviously      under   the stress of this traumatic event at the time he said he was " jumped."           Knowing

the hearsay objection would likely have been overruled, declining to object to this excited

utterance falls within legitimate trial strategy. Stewart' s counsel conceivably made such a

calculation.

             Further, an examination of counsel' s cross examinations and closing argument shows that

the defense strategy aimed to exploit Yanac' s lack of credibility and the weakness of the State' s

evidence concerning causation by implying that Yanac only accused Stewart to get assistance

with medical bills resulting from unrelated injuries.         Raising the corpus delicti rule would likely

have prompted the State to present further testimony establishing that Yanac' s injuries resulted

not from a seizure but from an intentional assault. Such testimony would have undermined the

6 Furthermore, the injuries themselves may have sufficed to establish the corpus delicti. See
State   v.
                          App. 587, 598, 141 P. 3d 92 ( 2006) ( holding that " logical and
             Baxter, 134 Wn.

reasonable inference from the injury itself' established a prima facie case of second degree
assault because that injury was inconsistent with accident or self-infliction).
7 Under Washington evidence law, the rule against hearsay does not exclude a " statement
relating to a startling event or condition made while the declarant was under the stress of
excitement caused by the event or condition, or immediately thereafter." ER 803.

                                                         15
No. 43247 -1 - II

defense theory concerning causation. Thus, legitimate strategic considerations, apparent in the

record, justify defense counsel' s conduct.

        Stewart cannot show that defense Counsel' s performance fell below an objective standard

of reasonableness. Stewart' s hypothesized objections would almost certainly have been futile,

and the record reveals that legitimate strategic considerations support trial counsel' s decision not

to pursue them. We therefore reject Stewart' s ineffective assistance claim.

        Affirmed.

        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.

                                                   Y

                                                       B.T,Y,   GEIIXA.
                                                                          r .

                                                  16


30 So.3d 467 (2008)
BRENDA J. IRBY
v.
MONTGOMERY CITY-COUNTY PERS. DEP'T.
No. 2070431.
Court of Civil Appeals of Alabama.
August 1, 2008.
Decision of the Alabama Court of Civil Appeal Without Published Opinion Reh. denied.