       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                           DIVISION ONE

 THE STATE OF WASHINGTON,                     No. 79346-2-I

                          Respondent,

               v.                             UNPUBLISHED OPINION

 ALBERTO L. DIAZ-BARRIENTOS,

                           Appellant.

       BOWMAN, J. — Alberto L. Diaz-Barrientos appeals his jury conviction for

domestic violence felony violation of a no-contact order. He argues the trial court

erred when it denied his motion to suppress all evidence obtained during a

warrantless search of his home. He contends the court admitted police body-

camera recordings in violation of the Washington privacy act (WPA), chapter

9.73 RCW. He also argues the court erred in denying his motions for mistrial

based on the victim’s alleged improper trial testimony. Finally, he claims

cumulative error deprived him of his right to a fair trial. We affirm.

                                        FACTS

       On January 16, 2018, Seattle Municipal Court issued a domestic violence

no-contact order prohibiting Diaz-Barrientos from having any contact with V.N. for

five years. The order prohibited Diaz-Barrientos from assaulting, “directly” or
No. 79346-2-I/2


“indirectly” contacting, and coming within 500 feet of V.N. Diaz-Barrientos signed

and acknowledged receipt of a copy of the no-contact order.

       At approximately 8:00 p.m. on April 13, 2018, V.N. called 911 to report

that she “got beat up really bad” by her ex-boyfriend, with whom she had a no-

contact order, and that she was about to “have a seizure.” V.N. told the 911

operator that her ex-boyfriend was looking for her and that she was hiding under

a car. Seattle Police Officer Brandon McDougald and Officer William Kohn

responded to the scene. Both officers were equipped with body cameras that

captured “a chest level view of everything” the officers saw and heard.

       Officer McDougald’s body camera captured a shivering V.N. who was

wearing nothing but a long T-shirt. To Officer McDougald, V.N. “seemed

disoriented” and he could tell that she had “some major injuries on her face.” He

saw that “her lip was swelling and bleeding, and . . . her left eye was swelling and

badly bruised.” V.N. told Officer McDougald that her ex-boyfriend Diaz-

Barrientos assaulted her and then “pointed down towards the apartment

complex” where Diaz-Barrientos lived. She said that she escaped by jumping off

the apartment balcony and hiding under a car.

       Officer McDougald confirmed the no-contact order and went to the

apartment address listed in the order to search for Diaz-Barrientos. The

apartment was 300 to 400 feet away from where the officers found V.N. At the

apartment, a man who identified himself as “Diaz-Barrientos’ father” answered

the door. The man had difficulty communicating in English. Officer McDougald

did not verify that the man was actually Diaz-Barrientos’ father. Officer




                                         2
No. 79346-2-I/3


McDougald asked the man if police “could check the residence for his son and he

agreed.” Officer McDougald did not confirm Diaz-Barrientos’ father had the

authority to give consent to search the apartment or tell him that he could refuse

the search.

        The police walked through the residence. Officer McDougald observed

the living area was in “disarray,” with the bed “all torn apart” and knocked over

items. The officers did not locate Diaz-Barrientos in the apartment or

surrounding area.

        Two days later on April 15, Officer Michael Fabbricante responded to an

anonymous 911 call and found Diaz-Barrientos at the apartment. He confirmed

Diaz-Barrientos’ identity by looking at his driver’s license. Police officers

searched the apartment again.

        The State charged Diaz-Barrientos by amended information with one

count of domestic violence felony violation of a no-contact order “between April

12, 2018 and April 13, 2018.” He pleaded not guilty.

        During pretrial motions, Diaz-Barrientos moved to suppress the officers’

body-camera recordings and to suppress all evidence obtained in an unlawful

search of his apartment on April 13.1 The court denied Diaz-Barrientos’ motion to

suppress the evidence obtained during the April 13 warrantless search of his

apartment as well as his request to suppress the body-camera recordings.2

However, the court granted Diaz-Barrientos’ ER 404(b) motion in limine to


        1
         Diaz-Barrientos also moved to suppress all evidence obtained in the April 15, 2018
search of his apartment. The court did not admit this evidence at trial.
        2
        The court ordered the State to redact portions of the body-camera recordings for trial to
comply with hearsay requirements.


                                                3
No. 79346-2-I/4


exclude any evidence concerning his criminal history unless it became relevant

for impeachment purposes.

        Several witnesses testified during the two-day jury trial. Officer Kohn

testified that on April 13, 2018, he responded to V.N.’s 911 call reporting

domestic violence assault. Officer Kohn testified that he wore a body camera

during the investigation and the State played portions of the video for the jury.

Officer McDougald authenticated the portion of his body-camera recording that

the State played for the jury and described V.N.’s injuries when he found her on

April 13. Officer McDougald testified about investigating Diaz-Barrientos’

address and searching his apartment.

        Detective Melody Rios authenticated the January 16, 2018 Seattle

Municipal Court domestic violence no-contact order, V.N.’s 911 call, and Diaz-

Barrientos’ driving record and driver’s license. Officer Fabbricante testified that

he “c[a]me into contact with” Diaz-Barrientos at his apartment on April 15, 2018

and viewed Diaz-Barrientos’ government-issued photo identification.3

        Dr. Bjorn Watsjold, an emergency physician at Harborview Medical

Center, testified about his treatment of V.N.’s injuries on April 13, 2018. He said

that V.N. told medical personnel “that she had been hit” in the face and abdomen

with “fists” and “a stick,” that “she had been choked, and that at some point she

had fled from an assailant and jumped out a window.” She identified the person

that assaulted her as her “partner or an ex-partner.” Some of her injuries,




        3
           Officer Fabbricante did not testify that he was responding to a 911 call on April 15 or
that officers searched Diaz-Barrientos’ apartment that day.


                                                  4
No. 79346-2-I/5


including “bruises and the injuries to the shins, the knees,” were “consistent with

having fallen from . . . a height or landing on things on the way down.”

       During her trial testimony, V.N. described her history with Diaz-Barrientos,

what happened on the night of April 13, and that despite the no-contact order,

she was trying to give him a second chance to have a relationship. Diaz-

Barrientos twice moved for a mistrial, claiming that V.N.’s testimony violated the

pretrial ruling precluding comment on Diaz-Barrientos’ criminal history. The court

denied both motions but gave a curative instruction after the second motion to

strike and disregard V.N.’s improper testimony.

       Diaz-Barrientos did not testify at trial and the defense rested without

calling any witnesses. In closing, Diaz-Barrientos argued that V.N.’s “story

doesn’t make sense” and that the State did not present any evidence that Diaz-

Barrientos and V.N. were together in his apartment on April 13, 2018.

       A jury convicted Diaz-Barrientos as charged of felony violation of a no-

contact order. By special verdict, the jury found the crime was an aggravated

domestic violence offense. The trial court imposed a 20-month standard-range

sentence. Diaz-Barrientos appeals.

                                    ANALYSIS

The WPA

       Diaz-Barrientos argues the court’s admission of the police body-camera

recordings depicting police interaction with V.N. violated the WPA because the

officers failed to advise V.N. that she was being audio recorded as required by




                                         5
No. 79346-2-I/6


RCW 9.73.090(1)(c).4 We disagree.

        The WPA makes it “unlawful” for any person to intercept or record a

private communication “without first obtaining the consent of all the persons

engaged in the conversation.” RCW 9.73.030(1). “Any information obtained in

violation of RCW 9.73.030 . . . shall be inadmissible in any civil or criminal case

in all courts of general or limited jurisdiction in this state.” RCW 9.73.050.

        Here, Diaz-Barrientos claims that all police recordings must “strictly

conform” to the requirements in RCW 9.73.090(1)(c). However, the plain

language of RCW 9.73.090(1)(c) does not apply to situations involving police

body-camera recordings:

        Sound recordings that correspond to video images recorded by
        video cameras mounted in law enforcement vehicles. All law
        enforcement officers wearing a sound recording device that makes
        recordings corresponding to videos recorded by video cameras
        mounted in law enforcement vehicles must be in uniform. A sound
        recording device that makes a recording pursuant to this subsection
        (1)(c) must be operated simultaneously with the video camera
        when the operating system has been activated for an event. No
        sound recording device may be intentionally turned off by the law
        enforcement officer during the recording of an event. Once the
        event has been captured, the officer may turn off the audio
        recording and place the system back into “pre-event” mode.
               ....
               A law enforcement officer shall inform any person being
        recorded by sound under this subsection (1)(c) that a sound
        recording is being made and the statement so informing the person
        shall be included in the sound recording, except that the law
        enforcement officer is not required to inform the person being
        recorded if the person is being recorded under exigent
        circumstances. A law enforcement officer is not required to inform
        a person being recorded by video under this subsection (1)(c) that
        the person is being recorded by video.


        4
          Even though Diaz-Barrientos was not a participant in any of the body-camera
recordings, he still “has standing to object to use of evidence obtained in violation of the [WPA].”
State v. Williams, 94 Wn.2d 531, 534, 545-46, 617 P.2d 1012 (1980).


                                                  6
No. 79346-2-I/7


       Diaz-Barrientos asks us to interpret the plain language of the statute to

include application to body-camera recordings. But unambiguous statutory

language is not subject to interpretation; the meaning is derived entirely from the

subject matter and context. State v. Sunich, 76 Wn. App. 202, 206, 884 P.2d 1

(1994). We may not read unwritten language into a statute. State v. Malone,

106 Wn.2d 607, 610, 724 P.2d 364 (1986). We construe statutes to avoid

rendering any word or provision meaningless. State v. Contreras, 124 Wn.2d

741, 747, 880 P.2d 1000 (1994). Privacy protections under the WPA are

statutory in nature. Expansion of those protections must come from the

legislature.

       In State v. Clayton, 11 Wn. App. 2d 172, 452 P.3d 548 (2019), review

denied, No. 97991-0 (Wash. July 10, 2020), 2020 WL 3888316, Division Three of

our court reached the same conclusion. There, multiple police officers

responded to investigate a report of shots fired. Clayton, 11 Wn. App. 2d at 174.

“Three officers had active body cameras recording the investigation, but none of

the residents were advised of that fact.” Clayton, 11 Wn. App. 2d at 174.5 The

trial court denied Clayton’s motion to suppress, ruling that “the investigation did

not involve a private conversation.” Clayton, 11 Wn. App. 2d at 174-75, 177.

Affirming the trial court’s decision, Division Three concluded, “The [WPA] does

not address police body cameras. It is up to the legislature to extend the

protections of the act to the use of those cameras if it so desires.” Clayton, 11

Wn. App. 2d at 180.



       5
           Emphasis added.


                                          7
No. 79346-2-I/8


        The trial court did not violate the WPA in admitting the police body-camera

recordings.

Unlawful Search

        Diaz-Barrientos also argues that the trial court erred when it denied his

motion to suppress evidence the officers obtained during a warrantless search of

his apartment on April 13, 2018.6 The State concedes that “the officers’ entry

was improper and their observations inside the apartment should have been

suppressed.”

        Warrantless searches are per se unreasonable under article I, section 7 of

our state constitution7 unless they fall within an established and well-delineated

exception to the warrant requirement. State v. Ross, 141 Wn.2d 304, 312, 4

P.3d 130 (2000). Consent to search by a person that is authorized to do so is

one such exception our courts recognize. State v. Mathe, 102 Wn.2d 537, 541,

688 P.2d 859 (1984).

        To obtain valid consent, police must “inform the person from whom
        consent is sought that he or she may lawfully refuse to consent to
        the search and that they can revoke, at any time, the consent that
        they give, and can limit the scope of the consent to certain areas of
        the home.”

Mayfield, 192 Wn.2d at 877 n.1 (quoting State v. Ferrier, 136 Wn.2d 103, 118,

960 P.2d 927 (1998)). Accordingly, if “the police choose to conduct a search

without a search warrant based upon the consent of someone they believe to be




        6
          Diaz-Barrientos does not challenge evidence obtained during the April 15, 2018 search
of his apartment because that evidence was not introduced at trial.
        7
         Article I, section 7 provides broader protection than the Fourth Amendment to the
United States Constitution. State v. Mayfield, 192 Wn.2d 871, 878, 434 P.3d 58 (2019).


                                               8
No. 79346-2-I/9


authorized to so consent, the burden of proof on issues of consent . . . is on the

police.” State v. Morse, 156 Wn.2d 1, 15, 123 P.3d 832 (2005).

       Because the evidence supports the State’s acknowledgment that the

officers did not “establish that [Diaz-Barrientos’ father] had the authority to

consent” to a search of the apartment or “inform [him] that he could refuse

consent,” we accept the State’s concession of error. And because evidence

obtained directly or indirectly from an unlawful search or seizure must be

suppressed under the fruit of the poisonous tree doctrine, the court erred in

denying Diaz-Barrientos’ motion to suppress that evidence. Mayfield, 192 Wn.2d

at 888-89.

       Constitutional error is presumed prejudicial, but we apply a harmless error

analysis when the trial court admits evidence that is the product of a warrantless

search. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985). A

constitutional error is harmless if we are “persuaded beyond a reasonable doubt

that the jury would have reached the same result in absence of the error.” State

v. Fisher, 185 Wn.2d 836, 847, 374 P.3d 1185 (2016). In determining whether

constitutional error is harmless, we consider “whether the untainted evidence is

so overwhelming that it necessarily leads to a finding of guilt.” Fisher, 185 Wn.2d

at 847.

       Here, the overwhelming untainted evidence supports the jury finding Diaz-

Barrientos guilty of felony violation of the no-contact order. To convict Diaz-

Barrientos of felony violation of a no-contact order, the State must prove beyond




                                          9
No. 79346-2-I/10


a reasonable doubt:

               (1) That between April 12, 2018 and April 13, 2018, there
        existed a no-contact order applicable to the defendant;
               (2) That the defendant knew of the existence of this order;
               (3) That on or about said date, the defendant knowingly
        violated a provision of this order;
               (4) That:
                      (a) The defendant’s conduct was an assault or
                      (b) The defendant’s conduct was reckless and
        created a substantial risk of serious physical injury to another
        person; and
               (5) That the defendant’s act occurred in the State of
        Washington.[8]

        At trial, defense counsel told the jury, “It’s not going to be a question

whether [V.N.] was assaulted” and, “You’re going to see evidence of a no-contact

order.” Diaz-Barrientos narrowed his defense to the sole issue of whether he

was at the apartment with V.N. on the night of April 13, and defense counsel

argued the evidence “doesn’t put him and her together that night.”

        The court admitted as exhibits a certified copy of the January 2018

domestic violence no-contact order as well as the recording of the 911 call V.N.

made requesting help on April 13. The State played the recording of the 911 call

for the jury. The 911 call established that V.N. told the operator that she “got

beat up really bad” by “[m]y ex-boyfriend.”

        The court admitted as an exhibit and the State played for the jury the

recording of Officer Kohn’s body camera. The recording established that V.N.

identified Diaz-Barrientos as the “boyfriend” that hit her on April 13:

                [OFFICER KOHN]: So what’s your boyfriend’s name?
                [V.N.]: His name is —

        8
           To determine whether this violation constituted a “domestic violence” offence, a special
verdict form asked the jury, “Were Alberto L[.] Diaz-Barrientos and [V.N.] members of the same
family or household prior to or at the time the crime was committed.”


                                                10
No. 79346-2-I/11


               [OFFICER KOHN]: Can you spell his last name?
               [V.N.]: — Alberto. Alberto.
               [OFFICER KOHN]: Spell his last name for me.
               [V.N.]: A — A-l-b-e-r-t-o.
               [OFFICER KOHN]: And first name?
               [V.N.]: Diaz.
               [OFFICER KOHN]: Spell it for me.
               [V.N.]: That’s all I know. Alberto Diaz. Alberto Leonardo
       Diaz.

The court also admitted a copy of Diaz-Barrientos’ driver’s license, which

corroborated V.N.’s testimony that she fled from a nearby apartment where her

ex-boyfriend—the assailant—lived. Diaz-Barrientos’ driver’s license showed his

address was in the direction that V.N. pointed and only 300 to 400 feet away

from where the responding officers first contacted V.N..

       When she testified, V.N. described how Diaz-Barrientos became enraged

by jealousy after “looking through my phone” and seeing phone numbers for

male friends and family members. V.N. testified that he proceeded to “attack”

her “for no reason . . . physically and mentally and verbally.” V.N. told the jury

how Diaz-Barrientos hit her “multiple times” in the face with “his fists,” “choked”

her “with a sheet,” “kicked” and “dragged” her by her hands, and threw “stuff” at

her. V.N. testified that she told Diaz-Barrientos to stop several times “but he

refused to” and seemed to “enjoy[ ] hitting me, just like it’s fun.” And she

described how she tried to leave but Diaz-Barrientos “didn’t want me to,” so she

escaped by “jump[ing] off the balcony” wearing only “a regular shirt, with nothing

on the bottom,” and hiding under a car. V.N. testified that she “remember[ed]

exactly” that Diaz-Barrientos was the person who assaulted her on the night of

April 13, 2018.




                                         11
No. 79346-2-I/12


       Additionally, Dr. Watsjold testified that while treating her at Harborview

Medical Center for the injuries she suffered on April 13, V.N. reported her “ex-

partner” assaulted her. And his physical examination of V.N. corroborated her

testimony that she jumped off a balcony to escape Diaz-Barrientos:

               A.      For us, [the ambulance record showed] only that she
       had jumped out of a window running from an assailant. I didn’t get
       a lot of detail as far as why she jumped out or how she landed or
       other things that might be relevant.
               Q.      Did you observe any injuries that supported that?
               A.      The bruises and the injuries to the shins, the knees,
       the inside of the upper arms, would all potentially be consistent with
       having fallen from a fight — a height or landing on things on the
       way down.

       Finally, Officer Fabbricante testified that on April 15, 2018, he contacted

Diaz-Barrientos at the apartment listed on Diaz-Barrientos’ driver’s license and

that Diaz-Barrientos “told me he loved” V.N.

       We conclude beyond a reasonable doubt that because the overwhelming

untainted evidence supports the jury finding that Diaz-Barrientos assaulted V.N.

on April 13 and that his contact with her violated a valid no-contact order, any

error related to Officer McDougald’s description of the interior of Diaz-Barrientos’

apartment was harmless.

Motions for Mistrial

       Diaz-Barrientos argues that the trial court erred in denying his motions for

a mistrial. We review a court’s denial of a motion for mistrial for abuse of

discretion. State v. Greiff, 141 Wn.2d 910, 921, 10 P.3d 390 (2000). A court

abuses its discretion when its decision is manifestly unreasonable, based on




                                         12
No. 79346-2-I/13


untenable grounds, or made for untenable reasons. State v. Barry, 184 Wn. App.

790, 797, 339 P.3d 200 (2014).

       “The trial court should grant a mistrial only when the defendant has been

so prejudiced that nothing short of a new trial can ensure that the defendant will

be fairly tried.” State v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012) (citing

State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989)). We will reverse a

decision denying a mistrial only if there is a substantial likelihood the irregularity

prompting the motion affected the jury’s verdict. State v. Rodriguez, 146 Wn.2d

260, 269-70, 45 P.3d 541 (2002). In making that determination, a court

considers (1) the seriousness of the irregularity, (2) whether the improper

statement was cumulative of other evidence properly admitted at trial, and (3)

whether an instruction to disregard the statement could have cured the

irregularity. State v. Escalona, 49 Wn. App. 251, 254, 742 P.2d 190 (1987)

(citing State v. Weber, 99 Wn.2d 158, 165-66, 659 P.2d 1102 (1983)).

       I. First Motion

       On direct examination, the prosecutor questioned V.N. about the April 13

assault and inquired about the location of Diaz-Barrientos’ apartment:

               Q.     Okay. You said you were celebrating [Cambodian
       New Year] with him.
               A.     Yes, instead of being with my family.
               Q.     And when you say him, do you mean Alberto?
               A.     Yes.
               Q.     And where were you with him?
               A.     I was at his house.
               Q.     And do you remember where that is located? Do you
       remember the street?
               A.     I remember that we were spending time together. It
       was — it was so romantic and everything, and so I just started
       falling asleep and everything just happened, just happened out of



                                          13
No. 79346-2-I/14


        the blue. Like, it’s hard to remember, because I — I try not to, but it
        just happened so fast.
               Q.     And I know this is really hard.
               A.     I gave him a chance when he got out.
               Q.     I’m just going to stop you for just a second, okay?
                              [DEFENSE COUNSEL]: I’m going to object,
        Your Honor.
               Q.     (BY [PROSECUTOR])              I’m just going to —
                              THE COURT: Overruled. Get some water
        and some tissue, a little break.
               Q.     (BY [PROSECUTOR])              [V.N.], there’s some tissue
        behind you, okay, and I’m going to pour you some water and bring
        it up.
               A.     I’m fine.
                              THE COURT:             Just give you a minute.
                              [PROSECUTOR]: And Your Honor, may I
        approach?
                              THE COURT:             Yes, you may.
                              [DEFENSE COUNSEL]: Your Honor, can I
        ask for a sidebar?
                              THE COURT:             No. We’ll have to do it
        outside the presence of the jury. Is it. . .
                              [DEFENSE COUNSEL]: Yes.[9]

        After the court excused the jury, defense counsel requested a mistrial,

arguing that V.N. “referring to when he got out of jail” was a violation of the

pretrial order prohibiting ER 404(b) evidence.10 The prosecutor argued that

V.N.’s “mention was so brief. She did not specifically state that he got out of jail,”

and recommended “a limiting instruction . . . rather than a mistrial, given how

brief the mention was and how vague it was.” The court denied the request for a

mistrial because “the reference was vague enough and fast enough it did not

unduly prejudice” Diaz-Barrientos. The court also declined to give a limiting

instruction, explaining, “I don’t want to draw further attention to it.”



        9
            Ellipsis in original; emphasis added.
        10
          ER 404(b) prohibits evidence of prior misconduct offered as substantive evidence.
State v. Wilson, 60 Wn. App. 887, 891, 808 P.2d 754 (1991).


                                                    14
No. 79346-2-I/15


      II. Second Motion

      During defense counsel’s cross-examination of V.N., the following

exchange took place:

               Q.    So, I wanted to just talk to you about the no-contact
      order. You knew about the no-contact order back in April of 2013,
      right — or 2018?
               A.    Well, answer that question.
               Q.    Well. . .
               A.    Yes, I knew about that.
               Q.    Okay. You also know that — you knew at the time
      that if you guys had contact, that Alberto can get in a lot of trouble,
      right?
               A.    I understand that. But can I say something?
               Q.    It was a —
               A.    Yes, I knew that.
               Q.    Do you understand that?
               A.    I knew about that, but I quashed it, yeah.
               Q.    Okay. You quashed it?
               A.    I quashed it when I gave him a chance on December
      when I came. Yeah, I gave him a chance. Yes, I did.
               Q.    You — you went to his house on April 13th — or April
      13, 2018. That’s what you told the police officers?
               A.    I went to the house on April 13th? No. He checked in
      my phone call. He called me and so I went there. Yes, of course,
      because he called me. He just got out of jail in March, and so I
      went to his house because I felt sorry for him. Yes, I did.
                             [DEFENSE COUNSEL]: Your Honor.
                             THE COURT: All right. The jurors would
      please put your note pads on your chairs and return to the jury
      room, please.[11]

      Defense counsel moved a second time for a mistrial, arguing that V.N.’s

testimony again violated the court’s pretrial order. The court denied the motion

but struck V.N.’s answer and instructed the jury as follows:

      So, there was a question asked of [V.N.] regarding the no-contact
      order, and her response, everything in that response is stricken.
      You are to disregard her answer to that question and any testimony
      that followed from that answer.


      11
           Ellipsis in original; emphasis added.


                                                   15
No. 79346-2-I/16


       Diaz-Barrientos claims that V.N.’s testimony on direct and cross-

examination constitutes a serious irregularity because it impermissibly shifted the

jury’s attention to his propensity for criminality. We disagree. Here, the State

charged Diaz-Barrientos with domestic violence felony violation of a no-contact

order. At issue was whether he contacted and assaulted V.N. on April 13, 2018.

V.N.’s testimony was unrelated to whether Diaz-Barrientos violated the no-

contact order as charged and did not amount to propensity evidence.

       Neither was the testimony a direct violation of the court’s motion in limine

precluding testimony about Diaz-Barrientos’ criminal history. “[T]he fact that

someone has been in jail does not necessarily mean that he or she has been

convicted of a crime.” State v. Condon, 72 Wn. App. 638, 649, 865 P.2d 521

(1993) (ambiguous statement about defendant having been in jail did not to

warrant a mistrial); see also Hopson, 113 Wn.2d at 284-86 (statement that victim

knew defendant “ ‘three years before he went to the penitentiary the last time’ ”

did not materially affect the trial since there was no information concerning the

nature or number of convictions).

       Finally, although the testimony was not cumulative of other evidence, the

court instructed the jury to disregard the improper portions of V.N.’s testimony.

We presume the jury follows the instructions of the court. State v. Montgomery,

163 Wn.2d 577, 596, 183 P.3d 267 (2008). Diaz-Barrientos relies on Escalona

and State v. Miles, 73 Wn.2d 67, 436 P.2d 198 (1968), to argue the court’s

curative instruction could not fix this irregularity. Such reliance is misplaced.




                                         16
No. 79346-2-I/17


       In Escalona, the State charged the defendant with second degree assault

for threatening the victim with a knife. Escalona, 49 Wn. App. at 252. The victim

testified that Escalona “ ‘already has a record’ ” and “ ‘had stabbed someone.’ ”

Escalona, 49 Wn. App. at 253. We held this was propensity evidence because a

jury could conclude that Escalona “acted on this occasion in conformity with the

assaultive character he demonstrated in the past.” Escalona, 49 Wn. App. at

256.

       In Miles, the State charged the defendants with robbery. Miles, 73 Wn.2d

at 67-68. The defendants challenged evidence of the contents of a “Teletype

message” from the Yakima County Sheriff’s Office describing two men wanted in

a similar crime of robbery, their vehicle, and their intent to commit another

robbery in Spokane. Miles, 73 Wn.2d at 68-69. In overturning the trial court’s

denial of the defendants’ motion for a mistrial, our state Supreme Court held that

the police officer’s testimony “concerning an alleged plan to perpetrate a robbery

like the one with the commission of which the defendants were charged” was “so

prejudicial in nature that its effect upon the minds of the jurors could not be

expected to be erased by an instruction to disregard it.” Miles, 73 Wn.2d at 71.

       The comments in this case do not rise to the serious irregularities in

Escalona and Miles. The trial court did not abuse its discretion in denying Diaz-

Barrientos’ motions for a mistrial.

Cumulative Error

       Finally, Diaz-Barrientos seeks reversal and a new trial under the

cumulative error doctrine. The cumulative error doctrine requires reversal when




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the combined effect of several errors denies the defendant a fair trial. State v.

Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006). “The doctrine does not apply

where the errors are few and have little or no effect on the outcome of the trial.”

Weber, 159 Wn.2d at 279. As discussed above, while the trial court erred in

admitting Officer McDougald’s testimony describing the condition of Diaz-

Barrientos’ apartment, the error was harmless and had no effect on the outcome

of trial. Diaz-Barrientos is not entitled to a new trial due to cumulative error.

       We affirm the jury conviction for domestic violence felony violation of a no-

contact order.




WE CONCUR:




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