State of Washington v. John J. Woods

FILED OCTOBER 20, 2026 In the Office of the Clerk of Court WA State Court of Appeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No. 40673-3-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) JOHN J. WOODS, ) ) Appellant. ) MURPHY, J. — John Woods was convicted, after a jury trial, of first degree assault, second degree assault, and harassment, with a finding that each crime involved domestic violence against an intimate partner. We affirm. BACKGROUND Loretta Woods shared an apartment in Spokane with her husband, John Woods, and a roommate. On December 12, 2023, at around 11:00 p.m., Loretta returned home after working a shift at a local restaurant. After the couple’s roommate went to bed, Loretta told Woods she no longer loved him and wanted to end their 20-year marriage. Woods agreed to leave the apartment but asked to prepare something to eat first. He poured oil into a pot and began heating it to a boil, ostensibly to cook fish fillets he had taken out of the freezer—something Loretta had never seen him do before. Putting the frozen fillets in a pot of boiling oil was also contrary to the product’s packaging instructions. No. 40673-3-III State v. Woods Loretta sensed trouble and was quickly becoming fearful. She expressed concern about the boiling oil to Woods, who replied, “‘Since you’re so fucking scared[] I’m going to do something to you. I’ll cut it off, I won’t cook.’” Verbatim Rep. of Proc. (VRP) (June 25, 2024) at 164. While continuing to argue, Woods turned off the stove. Loretta tried to pour the hot oil down the drain, but Woods smacked the pot, splashing oil toward her face. Woods then grabbed the pot and “started flinging the oil” at Loretta. VRP (June 25, 2024) at 164. He continued by pouring oil on her from the pot. Loretta retreated to the living room. Woods followed her and beat her with the pot and “busted” her head causing a laceration. VRP (June 25, 2024) at 166. Oil on the floor and the small size of the apartment made it difficult for Loretta to get away from Woods. Loretta ran toward the apartment’s front door. Woods caught up to Loretta before she reached the door, grabbed her shirt and ripped it off, and then went back to the kitchen where he retrieved a knife. Loretta then ran outside with Woods, knife in hand, chasing and threatening to kill her. Loretta later testified that, given what had just transpired, she “absolutely believed he would have done it.” VRP (June 25, 2024) at 171- 72. She managed to elude Woods long enough to circle back to the apartment, get back inside, and lock the door with Woods still outside. Loretta and her roommate called 911. A CD containing audio of the call was admitted into evidence at trial. By the time law enforcement officers reached the apartment, Woods was no longer there. 2 No. 40673-3-III State v. Woods One of the responding officers testified that: It was obvious that [Loretta] had been burned. Her injuries were significant. I recall her right arm seeing the skin that should have been attached to where biceps skin should be folded down, rolling down and being in a clutch by her elbow. .... I believe she was in shock. I mean, she was visibly upset, crying, and just lots of pain. VRP (June 25, 2024) at 274. Loretta was treated by emergency medical personnel, interviewed by law enforcement, and then transported to the hospital for further care. Woods was found and arrested by law enforcement after a search of the area. He told officers he “snapped” and “lost control” and “threw a pot of hot oil” at Loretta, while at the same time expressing that he was “very concerned about the safety of his wife, [and] wanted to know what hospital she was going to and if [he] could get . . . in contact with her.” VRP (June 26, 2024) at 301-02. On December 13, 2023, the State charged Woods with one count of first degree assault (Woods’s use of the hot oil and pot), one count of second degree assault (Woods chasing Loretta with the knife), and one count of harassment (Woods threatening to kill Loretta). The State alleged an aggravating circumstance that each crime involved domestic violence against an intimate partner. Trial commenced in late June 2024. Loretta testified that the oil was “so hot it was burning [her] skin off,” VRP (June 25, 2024) at 165, and “[i]t felt like [her] skin 3 No. 40673-3-III State v. Woods was melting off [her] body,” VRP (June 25, 2024) at 181. The jury was shown pictures taken of Loretta from the night of the incident, the next day, and the following week. Loretta described that she suffered burns to both arms, chest, armpit, neck, and back, with the jury seeing photographs documenting these burns. The jury also saw pictures of the laceration on her forehead. Loretta recounted the difficulty she experienced treating the burns because the dressings she needed to wear would stick to her skin and the blisters would drain but immediately come back. Approximately one month after being burned, Loretta started having pain in her right forearm and it was turning blue. She went to the emergency room where she was diagnosed with a blood clot in a major artery inside her forearm. Two surgical procedures were performed over the span of a week, the first on an emergent basis to clear the blockage in the artery. Loretta showed jurors the scars on her right arm from the hot oil burns, scars from the surgical incisions, as well as the scar on her forehead where the pot struck her. She testified she had ongoing medical appointments to treat her injuries. Loretta said she suffered scarring to: “[m]y back, my left arm, my right arm, so everywhere.” VRP (June 25, 2024) at 196. Christopher Ward, M.D., the vascular surgeon who treated Loretta when she experienced the blood clot, testified at trial. He affirmed that a blood clot (embolism) 4 No. 40673-3-III State v. Woods can be life threatening. Loretta was referred to Dr. Ward by the emergency room because “[s]he had acute, meaning sudden, blockage of an artery, producing pain, discoloration, and decreased sensation consistent with a limb-threatening problem.” VRP (June 25, 2024) at 139. If left untreated, Loretta would have been at “high risk” of losing fingers or the hand. VRP (June 25, 2024) at 146. Loretta was “taken to the operating room urgently” for surgery to clear the blockage. Ex. 37 at 2. Dr. Ward testified the burns sustained by Loretta on December 13 appeared “mostly healed, but there was obvious evidence of an injury, and so the skin was abnormal, red, and there was still some flaking.” VRP (June 25, 2024) at 141. In the days after the initial surgery, Loretta experienced complications with pain and redness around the incision and Dr. Ward took her back to surgery for an incision and drainage procedure to clean the wound. Dr. Ward’s “number one diagnosis” for what caused Loretta’s post- operative infection was “ongoing inflammation from the burn.” VRP (June 25, 2024) at 144. He explained that a burn damages the skin, and compromised skin makes people vulnerable to infection. Dr. Ward referred Loretta to a hematologist to evaluate why she formed the blood clot. After “a pretty extensive search,” the hematologist did not find a blood clotting disorder and determined Loretta’s “arterial blockage was a result of the inflammation from the burn.” VRP (June 25, 2024) at 146. Ward agreed with this diagnosis. On cross- 5 No. 40673-3-III State v. Woods examination, Dr. Ward acknowledged it was possible that something else caused the blood clot. On redirect, however, he confirmed that testing by the hematologist did not reveal any other causes of the clot. The law enforcement officer who was the first to arrive at the apartment described the case as “violent and extreme.” VRP (June 25, 2024) at 265. As noted previously, he recalled looking at Loretta’s right arm and “seeing the skin that should have been attached to where biceps skin should be folded down, rolling down and being in a clutch by her elbow.” VRP (June 25, 2024) at 274. Another officer testified that when he entered the apartment, he saw Lorretta’s arm was red and blistering. About an hour later, when this same officer saw Loretta at the hospital, he noted the blisters had increased in size. Woods testified during the defense case-in-chief. He said that Loretta “kept hollering” and saying: “‘He’s going to burn me. He’s going to burn me.’” VRP (June 26, 2024) at 316-17. Woods responded, “‘Well, if you’re going to throw it, well, then I’ll throw it.’” VRP (June 26, 2024) at 316. Woods said he “snapped” and “just threw [the oil],” because he “wasn’t thinking.” VRP (June 26, 2024) at 318. He claimed throwing the oil at Loretta was not intentional. Woods claimed that he just wanted Loretta to stop hollering. When asked if he thought there was a chance the oil might have hit someone, he answered, “No. I wasn’t even thinking of—I really wasn’t even thinking let alone, 6 No. 40673-3-III State v. Woods you know, what I’m saying? I just—I was like, I don’t know, man. I was—I just threw it.” VRP (June 26, 2024) at 325. He denied hitting Loretta in the head with the pot but agreed the laceration of her forehead was caused by the pot. Woods’s counsel proposed, and the trial court gave, an instruction to the jury on third degree assault as a lesser included crime to first degree assault. Woods’s counsel did not propose a lesser included second degree assault instruction. In closing argument, Woods’s counsel did not contest Loretta’s injuries, acknowledging they looked painful. Counsel’s argument was that the evidence did not show Woods committed an intentional act; rather, he was negligent, which was consistent with third degree assault. A jury found Woods guilty as charged and by special verdict that Woods and Loretta were intimate partners. Woods timely appeals. ANALYSIS Woods makes four assignments of error on appeal: (1) there was insufficient evidence to support a conviction for first degree assault, (2) the trial court failed to issue a unanimity jury instruction, (3) ineffective assistance of counsel, and (4) prosecutorial misconduct. Woods also makes additional claims of error in a statement of additional grounds for review. We address these claims in the order presented. 7 No. 40673-3-III State v. Woods 1. Sufficiency of the evidence—great bodily harm Woods contends the evidence presented at trial was insufficient to prove that Loretta’s injuries rose to the level of “great bodily harm,” an essential element of the crime of first degree assault. RCW 9A.36.011(1)(d). Due process requires that the State prove each element of a charged offense beyond a reasonable doubt. State v. Chacon, 192 Wn.2d 545, 549, 431 P.3d 477 (2018). In a challenge to the sufficiency of the evidence, a reviewing court must determine, after viewing all the evidence in a light most favorable to the State, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Roberts, 5 Wn.3d 222, 231, 572 P.3d 1191 (2025); State v. Townsend, 147 Wn.2d 666, 679, 57 P.3d 255 (2002). A sufficiency claim admits the truth of the State’s evidence, drawing all reasonable inferences in the State’s favor and interpreting those inferences most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We defer to the fact finder to resolve conflicting testimony and to weigh evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). An essential element of first degree assault is that the defendant “[a]ssaults another and inflicts great bodily harm.” RCW 9A.36.011(1)(d). “‘Great bodily harm’ means bodily injury [(1)] which creates a probability of death, or [(2)] which causes significant serious permanent disfigurement, or [(3)] which causes a significant permanent loss or 8 No. 40673-3-III State v. Woods impairment of the function of any bodily part or organ.” RCW 9A.04.110(4)(c); see also 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 2.04, at 41 (5th ed. 2021) (WPIC). Our Supreme Court has recognized a three-level hierarchy of bodily harm. State v. Stubbs, 170 Wn.2d 117, 128 n.8, 240 P.3d 143 (2010) (quoting RCW 9A.040.110(4)). “‘Bodily injury,’ ‘physical injury,’ or ‘bodily harm,’” the lowest tier, “means physical pain or injury, illness, or impairment of physical condition.” RCW 9A.04.110(4)(a). “‘Substantial bodily harm,’” the middle tier, “means bodily injury which involves a temporary but substantial disfigurement, or which causes temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part.” RCW 9A.04.110(4)(b). “‘Great bodily harm’” is the highest tier and “encompasses the most serious injuries short of death.” Stubbs, 170 Wn.2d at 128. The three ways to prove great bodily harm are not alternative means of committing first degree assault. State v. Laico, 97 Wn. App. 759, 762-64, 987 P.2d 638 (1999). Rather, the definition of “great bodily harm” in RCW 9A.04.110(4)(c) is simply that: definitional. Jury unanimity on the existence of great bodily harm does not require unanimity as to which prong applies. Id. at 762. Woods contends that the State did not present sufficient evidence of great bodily harm under any part of the definition, claiming: (1) the medical testimony confirmed only 9 No. 40673-3-III State v. Woods a limb-threatening condition that, if left untreated, could result in loss of Loretta’s fingers or hand, (2) the State offered no testimony on the extent, seriousness, or permanence of the scars, and thus no proof of significant serious permanent disfigurement, and (3) the record contained no evidence of a significant permanent loss or impairment of any body part or organ. Viewing the evidence in the light most favorable to the State, the record was insufficient to prove Loretta’s injuries created a probability of death. While Dr. Ward did testify that a blood clot can be life threatening, he did not testify that Loretta’s blood clot was life threatening. Without a particularized link, the record contains insufficient evidence to show Loretta suffered an injury creating a probability of death. Similarly, the evidence was insufficient to prove a significant permanent loss or impairment of the function of any body part or organ. While Loretta did testify that she needed ongoing medical care, she did not describe what that ongoing care involved. Dr. Ward testified to Loretta’s complications from the burns that caused the blood clot and the skin vulnerability such that she was prone to infection, but the State did not provide evidence on whether Loretta’s injuries caused permanent functional loss or impairment. For example, there was no testimony about whether Loretta suffered nerve damage causing chronic pain or loss of sensation, or if contractures from the scarring restricted her movement, or if vascular compromise resulted in a medical probability that 10 No. 40673-3-III State v. Woods she would continue to develop blood clots. Thus, while there was evidence of ongoing issues as a result of the burns, the State did not present evidence on whether Loretta’s injuries caused permanent functional loss or impairment. The evidence was, however, sufficient to prove significant serious permanent disfigurement. “Significant serious permanent disfigurement” is not further defined by statute or published Washington case law. On appeal, the parties focus their arguments on two decisions of this court: (1) State v. Hill, 48 Wn. App. 344, 739 P.2d 707 (1987), and (2) State v. Gomez-Hernandez, No. 42781-8-II (Wash. Ct. App. July 2, 2013) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2042781-8- II%20Unpublished%20Opinion.pdf. Hill involved a conviction for vehicular assault and whether the victim’s injuries “constituted ‘serious permanent disfigurement’ or ‘[s]erious bodily injury’ within the meaning of [former] RCW 46.61.522(2) [(1983)].” 48 Wn. App. at 346 (first alteration in original) (some quotation marks omitted). Thus, Hill does not directly address “great bodily harm” or what constitutes “significant serious permanent disfigurement.” The Hill court did, however, acknowledge that other jurisdictions had defined “disfigurement” as “‘that which impairs or injures the beauty, symmetry or appearance of a person or thing; or that which renders unsightly, misshapen, or imperfect, or deformed in some manner.’” 48 Wn. App. at 347 (some quotation marks omitted) (quoting Gillman v. Gillman, 319 11 No. 40673-3-III State v. Woods So.2d 165, 166 (Fla. Dist. Ct. App. 1975)); see also State v. Atkinson, 113 Wn. App. 661, 667, 54 P.3d 702 (2002) (citing Hill, 48 Wn. App. at 347; BLACK’S LAW DICTIONARY 420 (5th ed. 1979)). In Hill, the victim suffered “lacerations to her face including a 4-inch-long L-shaped laceration to her forehead, a deep puncture wound to her inner thigh, a gash on her right ankle, a sprained toe, and major chest contusions.” 48 Wn. App. at 345-46. This court held the State presented sufficient evidence of serious permanent disfigurement where the treating physician testified the scars were permanent and the court had the opportunity to view the victim’s scars during trial. Id. at 347. In Gomez-Hernandez, this court reversed a first degree assault conviction, finding that insufficient evidence supported the “great bodily harm” element. No. 42781-8-II, slip op. at 1-2. There, an emergency room doctor testified the victim suffered a one- centimeter wide stab wound to the back of the neck that penetrated three and a half inches deep. Id. at 3. The doctor testified that, although such an injury was “potentially very life threatening” depending on the angle of the knife, the victim’s injury was not life threatening and she would have a “pretty minimal” permanent scar. Id. This court held that a “pretty minimal” scar was not what the legislature contemplated as significant serious permanent disfigurement. Id. at 6. Here, Loretta suffered extensive hot oil burns covering her right and left arms, chest, neck, and back. The medical record admitted into evidence from Loretta’s initial 12 No. 40673-3-III State v. Woods visit to the emergency room showed the reason for the visit as “Burn (Adult – Major >5% Of Body Surface),” with a diagnosis of second-degree partial-thickness burns. Ex. 36 at 1, 7. The jury heard one law enforcement officer describe seeing the skin that should have been attached to the bicep instead “folded down, rolling down and being in a clutch” at her elbow, VRP (June 25, 2024) at 274, and another officer describe Loretta’s arm and chest as “red” and “blistering” and that the blisters had noticeably increased in size by the time Loretta reached the hospital, VRP (June 25, 2024) at 285, 294. The jury saw photographs of the immediate blistering and peeling, as well as follow-up photographs from the next day and following week. Dr. Ward, who saw Loretta just over a month after she was burned, noted “obvious evidence of an injury and the skin was abnormal, red, and there was still some flaking.” VRP (June 25, 2024) at 141. Dr. Ward testified that, due to her severe burns, Loretta formed a blood clot that necessitated surgery, and she could have lost fingers or the hand if left untreated. Her skin was compromised because of the burns to the extent that her body was vulnerable to infection. This resulted in the need for a second surgery. During trial, six months after the subject events, Loretta showed the jury her scars, so that the jurors could evaluate for themselves the severity and degree of her disfigurement. In closing argument, defense counsel agreed that Loretta’s injuries looked painful. 13 No. 40673-3-III State v. Woods The jury was entitled to reasonably infer Loretta’s injuries caused significant serious permanent disfigurement, weighing all testimony and Loretta’s physical demonstration of her scars when it reached its conclusion. 1 See State v. Homan, 181 Wn.2d 102, 106, 330 P.3d 182 (2014) (“[W]e must defer to the trier of fact for purposes of resolving conflicting testimony and evaluating the persuasiveness of the evidence.”), abrogated on other grounds by Roberts, 5 Wn.3d 222; see also State v. Gantt, 29 Wn. In WPIC 2.03.01, the definitional instruction on “substantial bodily harm,” 1 the Washington Supreme Court Committee on Jury Instructions commented: Caution should be used in applying the definition of “substantial bodily harm” to similar terms such as “serious physical injury” that are otherwise undefined. In two cases, courts held that jurors should not be specifically instructed with a definition for “serious physical injury.” State v. Taitt, 93 Wn.[]App. 783, 970 P.2d 785 (1999); State v. Welker, 37 Wn.[]App. 628, 683 P.2d 1110 (1984). Because there is no statutory definition of this precise term, the courts held that jurors should be instructed only on the definition for “physical injury,” leaving jurors to use their common sense in determining whether a physical injury is serious. State v. Taitt, 93 Wn.[]App. at 791-92; State v. Welker, 37 Wn.[]App. at 638 n.2. In contrast, in a case that involved sufficiency of the evidence in a competency proceeding and not involving jury instruction, the court found no error in using “substantial bodily harm” to define “serious bodily harm,” finding “no meaningful difference” between the two terms. Born v. Thompson, 117 Wn.[]App. 57, 73, 69 P.3d 343 (2003), reversed on other grounds, 154 Wn.2d 749, 117 P.3d 1098 (2005). Although this comment was confined to substantial bodily harm, the same principle applies for great bodily harm: it should be left to the common sense of jurors to determine whether a physical injury is significant and serious. 14 No. 40673-3-III State v. Woods App. 2d 427, 444, 540 P.3d 845 (2024). Viewing the evidence in the light most favorable to the State, a rational jury could find, beyond a reasonable doubt, that Woods inflicted great bodily harm under the significant serious permanent disfigurement prong of the statute. 2. Unanimity instruction Woods argues that the trial court violated his right to a unanimous jury verdict by failing to give a unanimity instruction for first degree assault, claiming the State did not elect between the hot oil burns and the pot strike causing a forehead laceration. He claims the State instead “lumped the two acts together.” Appellant’s Opening Br. at 32. We review de novo, as a question of law, whether the trial court should have given a unanimity instruction. State v. Lee, 12 Wn. App. 2d 378, 393, 460 P.3d 701 (2020). “Criminal defendants have a right to a unanimous jury verdict.” State v. Rodriquez, 187 Wn. App. 922, 936, 352 P.3d 200 (2015) (citing WASH. CONST. art. I, § 21; State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994)). Defendants may raise a unanimity challenge, which is of constitutional magnitude, for the first time on appeal. RAP 2.5; State v. Bobenhouse, 166 Wn.2d 881, 893, 214 P.3d 907 (2009). Generally, when there is evidence of multiple acts that could support the crime charged, either the State must elect which act the jury should consider in its deliberations or the trial court must instruct the jury to unanimously agree on a specific criminal act. 15 No. 40673-3-III State v. Woods State v. Christian, 18 Wn. App. 2d 185, 208, 489 P.3d 657 (2021). Failure to do so can result in constitutional error because it is possible some jurors relied on one act and some relied upon another act, which would render verdict not unanimous. Id. However, election by the State or a unanimity instruction is required “only when the State presents evidence of several distinct criminal acts.” State v. McNearney, 193 Wn. App. 136, 141, 373 P.3d 265 (2016). Election or a unanimity instruction is not needed if the defendant engaged in multiple acts that form a single continuing course of criminal conduct. Christian, 18 Wn. App. 2d at 208. Essentially, the jury does not need to be unanimous regarding which acts in a continuing course of conduct support the conviction. See id. In determining whether multiple acts form a continuing course of conduct, we consider the facts in a commonsense manner. Id. We determine whether the acts (1) were against the same victim, (2) occurred in the same place, (3) occurred within the same time period, and (4) were committed for the same objective. Id. “Assault can be a continuing course of conduct crime.” Rodriquez, 187 Wn. App. at 937. The evidence here showed a single, continuous violent episode by Woods inside the apartment—splashing and pouring hot oil followed immediately by beating Loretta with the same pot. These acts occurred in rapid succession, in virtually the same location, using the same instrument, against the same victim, and with the single objective of inflicting significant serious injury. There was no meaningful temporal break, change 16 No. 40673-3-III State v. Woods in location, or intervening event that separates the acts into distinct criminal transactions. Instead, what occurred constituted a single, ongoing enterprise with the objective of harming Loretta during the argument. The acts were not separated in a manner requiring election. The facts concerning first degree assault did not support multiple acts necessitating an unanimity instruction. Woods argues that the State’s decision to charge him with second degree assault for his actions outside the apartment (chasing Loretta with a knife) prove that his actions inside the apartment required a unanimity instruction. We do not give credence to Woods’s distinction. The first degree assault charge required the State prove Woods intended to inflict great bodily harm. In contrast, the separate second degree assault charge required the State to prove Woods assaulted Loretta with a deadly weapon: the knife. The pouring of the hot oil and the subsequent striking with the pot were not several distinct criminal acts; they were part of one indivisible assault. The resulting burns and head laceration were simply evidence of the severity of that single assault. The trial court properly instructed the jury on the elements of first degree assault. Because the evidence established a continuing course of conduct, the State was not required to elect between the hot oil burns and the head laceration, and no unanimity instruction was needed. 17 No. 40673-3-III State v. Woods 3. Ineffective assistance of counsel—lesser included offense Woods claims his counsel was ineffective for failing to request an instruction on second degree assault as a lesser included offense to the first degree assault charge. To prevail on this claim, Woods must show both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). If one prong of the Strickland test fails, then this court need not address the remaining prong. State v. Crow, 8 Wn. App. 2d 480, 507, 438 P.3d 541 (2019). Representation is deficient if, after considering all the circumstances, it falls below an objective standard of reasonableness. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011). An individual alleging ineffective assistance of counsel must overcome a strong presumption that their counsel’s performance was reasonable. Id. “When counsel’s strategy can be characterized as legitimate trial strategy or tactics, performance is not deficient.” State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009). Prejudice occurs when, but for counsel’s deficient performance, there is a reasonable probability the outcome at trial would have been different. See State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). Woods argues the evidence in his case applied more aptly to second degree assault than to first degree assault. Jury instructions satisfy the defendant’s constitutional right to a fair trial if they “accurately inform the jury of the relevant law and permit each party to 18 No. 40673-3-III State v. Woods argue their theory of the case.” State v. Henderson, 192 Wn.2d 508, 512, 430 P.3d 637 (2018). A defendant is entitled to an instruction on a lesser included offense if (1) the elements of the lesser offense are necessary elements of the charged offense, and (2) the evidence supports the inference that the lesser crime was committed. State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). In order to convict Woods of first degree assault, the jury was required to find Woods assaulted Loretta with “intent to inflict great bodily harm,” and the assault “resulted in the infliction of great bodily harm.” CP at 133 (jury instruction 8); see also RCW 9A.36.011(1)(a). “A person is guilty of assault in the second degree if [they], under circumstances not amounting to assault in the first degree: . . . [i]ntentionally assaults another and thereby recklessly inflicts substantial bodily harm.” RCW 9A.36.021(1)(a). “‘Substantial bodily harm’ means bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part.” RCW 9A.04.110(4)(b) (emphasis added). The element of an intentional assault in second degree assault is also a necessary element of the greater crime of first degree assault. The evidence presented to the jury clearly supported an inference that Woods committed an intentional assault on Loretta. And it was unchallenged at trial that Loretta’s injuries were at least a temporary but substantial disfigurement. Given the evidence presented on intent 19 No. 40673-3-III State v. Woods and substantial bodily harm, Woods would have been entitled to a second degree assault instruction had he sought one. However, “a defendant who is entitled to lesser included instructions may choose to forgo such instructions nevertheless.” Grier, 171 Wn.2d at 42. An all or nothing strategy is a legitimate trial strategy. Grier, 171 Wn.2d at 37-39. During his testimony, Woods characterized his role in the incident involving the hot oil as a negligent act rather than an intentional one. He denied intentionally throwing the oil, telling jurors he only wanted Loretta to stop yelling and referred to himself as an “idiot[]” for what took place. VRP (June 26, 2024) at 343. During closing argument, defense counsel reinforced this theme: What I’m arguing is that he acted negligently, that his behavior was inside a gross deviation from the standard of care that any reasonable person would have exercised, a reasonable person in this small space would have not had a pot of oil, thrown it to the right of them knowing there’s other individuals there. But that is different than specifically intending to hit [Loretta] with that oil, so I’m asking you to convict him of third-degree assault on Count 1 and not first-degree assault. He told you he messed up, but he did not intend to douse her with oil. .... . . . Again, I’m not telling you to view things wrong. I’m asking you to separate the three counts and use this to guide you. I would argue the evidence, the testimony, the photographs suggest the oil was thrown negligently, a gross deviation from what a reasonable person would do and not an intentional assault. VRP (June 26, 2024) at 403-04. Thus, counsel argued Woods only acted negligently and lacked the intent necessary to be convicted of first degree assault. 20 No. 40673-3-III State v. Woods Woods’s testimony and his counsel’s closing argument show a mutual commitment to the case theory that Woods acted negligently and not intentionally. Given the evidence presented at trial, this strategy was reasonable. In not requesting a second degree assault instruction, and focusing on third degree assault as a lesser included crime, 2 the jury was left to determine whether Woods’s actions constituted an intentional assault that resulted in great bodily harm, or if Woods was acting negligently when he flung hot oil. Had defense counsel asked for a second degree assault instruction, that would have undermined the strategy that Woods was simply negligent. As Woods has not shown his counsel’s performance was deficient, we do not analyze actual prejudice. 4. Prosecutorial misconduct For the first time on appeal, Woods alleges the prosecutor committed misconduct during closing argument by stating facts not in evidence and misstating the law. We analyze a prosecutor’s comments during closing argument “in the context of the whole argument, the issues of the case, the evidence addressed in argument, and the instructions given to the jury.” State v. Scherf, 192 Wn.2d 350, 394, 429 P.3d 776 (2018). 2 “A person commits the crime of assault in the third degree when he or she with criminal negligence, causes bodily harm accompanied by substantial pain that extends for a period sufficient to cause considerable suffering. CP at 145 (jury instruction 20); see also RCW 9A36.031(1)(f). 21 No. 40673-3-III State v. Woods The defendant bears the burden of proving (1) improper conduct by the prosecutor, and (2) the misconduct caused prejudice. State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009). If no objection is made during trial, any claim of error is waived unless the prosecutor’s remark is so flagrant and ill intentioned that it causes prejudice that could not have been neutralized by a curative instruction. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994). Although a prosecutor has wide latitude during closing argument to draw reasonable inferences from the evidence, “it is improper for a prosecutor to argue from facts not in the evidence.” State v. Perkins, 97 Wn. App. 453, 459, 983 P.2d 1177 (1999). 4.1 Causal relationship between burns and blood clot Woods claims the State argued facts not in evidence when the prosecutor stated Loretta’s burns caused the blood clot. Dr. Christopher Ward, the vascular surgeon who treated Loretta for the blood clot in her arm, testified about his postoperative referral of Loretta to a hematologist: Q. And did [the hematologist] make any determinations as to what likely caused that blood clot? A. She did. Q. And what was her determination? A. After a pretty extensive search for a blood clotting disorder, she did not find one, and so her determination was that the patient’s arterial blockage was a result of the inflammation from the burn. Q. And based on your training and experience, do you agree with [the hematologist’s] diagnosis? 22 No. 40673-3-III State v. Woods A. I do. VRP (June 25, 2024) at 145-46. On cross-examination, Dr. Ward acknowledged that it was possible something else led to the arterial blockage. On redirect, he confirmed that testing was completed to rule out other causes and he “could not identify” another cause. VRP (June 25, 2024) at 150. During closing argument, the prosecutor said: “And then we have the blood clot. So not only does she have to deal with the burn healing, but the burn then caused a blood clot, a blood clot that had to have surgery, not once, but twice, to relieve.” VRP (June 26, 2024) at 387. The prosecutor fairly summarized the evidence and drew reasonable inferences. The prosecutor’s statement does not constitute misconduct. 4.2 Characterization of skin as an organ Woods also argues that it was misconduct for the prosecutor to argue that skin is an organ, claiming this fact was not supported by the evidence presented at trial. In closing, the prosecutor argued: “We know that the skin is an organ of the body, and we know that for that period of time, at least until it heals, it’s not even capable of doing its function, which is to protect you.” VRP (June 26, 2024) at 391. During Dr. Ward’s testimony, he did not explicitly define skin as being an organ. However, Dr. Ward did explain that skin is “your first defense against an infection,” and explained how burn damage increases a person’s vulnerability to infection and bacteria. VRP (June 25, 2024) 23 No. 40673-3-III State v. Woods at 144-45. This testimony supports the reasonable inference that skin functions as a “bodily part or organ.” Even if the characterization was imprecise, any prejudice was curable. Had Woods objected, the prosecutor could have simply pivoted to say, “bodily part,” a term that plainly encompasses skin under the statutory definition of “great bodily harm” found in RCW 9A.04.110(4)(c). Woods could not reasonably argue skin is not a part of the body. 4.3 Word omission Finally, Woods argues the prosecutor omitted the word “permanent” when reciting the loss or impairment prong of the great bodily harm definitional instruction. During closing argument, the prosecutor stated: Great bodily harm is . . . a significant, serious, permanent disfigurement. There’s a lot of big words here. You’ll get the instructions, so