 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                      )
                                                 No. 73252-8-
                     Respondent,          )
                                                 DIVISION ONE                            c

                                                                                 C*'*»
             W                            1
             V.                           )
                                                                                         r-'i
                                                 UNPUBLISHED OPINION
                                                                                         "•1
CRYSTAL ANASTASIA HUNTER,                 )
                                                                                 o       "-




                    Appellant,            )

TOMPALL ROSS LORAH-HEGGEN,                )
AND EACH OF THEM,                         )
                                                 FILED: June 20, 2016
                     Defendant.           )



      Trickey, J. — Crystal Hunter appeals her conviction of taking a motor

vehicle without permission in the second degree. Hunter contends that the trial

court improperly denied her motion for a mistrial after a police officer testified at

trial that Hunter had an unrelated warrant at the time of this incident. The trial

court properly exercised its discretion when it denied Hunter's motion. We affirm.
                                      FACTS

       Early in the morning on June 25, 2013, Jesus Arreola Ochoa awoke to the
sound of his car being started. The car, a 1992 black Honda Accord, was parked
outside of Ochoa's house. Ochoa had not given anyone permission to take his

car. Upon hearing the noise, Ochoa ran outside and saw his car being driven
away. He returned inside and called the police.

       A few weeks later, on the night of July 14, 2013, an officer with the King

County Sheriff's Office was on patrol in White Center when he saw a dark-
colored Honda traveling at a high rate of speed.        The car did not have any
No. 73252-8-1 / 2


taillights or brake lights. The officer stopped the car and came into contact with a

male driver and a female passenger who was later identified as Hunter. The

officer asked the driver for his license, registration, and proof of insurance. The

driver did not have any of the requested paperwork. The officer then asked the

driver to turn the car off.   The driver reached down to the floor of the car,

retrieved a screwdriver, inserted it into the ignition, manipulated the rods, and

complied with the officer's request.

       Soon after, the police dispatcher notified the officer that the car had been

reported stolen. The registered owner of the car was Ochoa. Additional officers

arrived, and they detained both the driver and Hunter. On further inspection of

the car, the officers noticed several hand tools lying on the passenger-side

floorboard, heavy damage to the steering column, exposed wiring, and a missing

ignition cylinder.

       Based on these events, the State charged Hunter with one count of taking

a motor vehicle without permission in the second degree. Before trial, Hunter

moved in limine to exclude evidence of prior bad acts under ER 404(b) and prior

convictions under ER 609. The State indicated that it did not intend to offer such

evidence absent testimony from Hunter. The case proceeded to a jury trial.

       During the State's case in chief, a deputy police officer testified that

Hunter had an "unrelated warrant" out of Renton at the time of the traffic stop.

Specifically, when testifying about his encounter with Hunter, the following

exchange occurred:

       [Prosecutor]: And, so in—once you had contact with the defendant,
       what did you do after that?
No. 73252-8-1 / 3




       [Deputy]: Urn, after I had contacted [sic] with her? I tried to confirm
       a- a unrelated warrant she had, out of Renton.

       [Defense attorney]: I would object.

       [Court]: Sustained.M

       After the State rested, Hunter moved to strike the deputy's testimony

about her unrelated warrant. The trial court granted this motion.        Hunter also

proposed a limiting instruction, instructing the jury to disregard the testimony.

The court agreed to give Hunter's proposed limiting instruction. Finally, Hunter

moved for a mistrial based on witness misconduct. The court denied this motion

on the basis that there was no misconduct and the officer's statement was

inadvertent.

       At the close of the case, the court instructed the jury.          The court's

instructions included Hunter's proposed limiting instruction.        The jury found

Hunter guilty as charged.

       Hunter appeals.

                                     ANALYSIS

       Hunter's sole challenge on appeal is to the trial court's denial of her

motion for a mistrial. She contends that the trial court abused its discretion when

it denied this motion, because the deputy's statement deprived her of her right to

a fair trial. We disagree.

       "A trial court has broad discretion to rule on irregularities during the course

of a trial." State v. Wade. 186 Wn. App. 749, 773, 346 P.3d 838, review denied.

184 Wn.2d 1004, 357 P.3d 665 (2015). The trial court is in the best position to

1 Report of Proceedings (RP) (Feb. 4, 2015) at 79-80.
                                           3
No. 73252-8-1/4



determine whether the irregularity caused prejudice. Wade. 186 Wn. App. at

773. The court should grant the mistrial "'only when the defendant has been so

prejudiced that nothing short of a new trial can insure that the defendant will be

fairly tried.'" Wade. 186 Wn. App. at 773 (quoting State v. Kwan Fai Mak. 105

Wn.2d 692, 701, 718 P.2d 407 (1986)).

       We review the trial court's denial of a motion for a mistrial for abuse of

discretion. State v. Emery. 174 Wn.2d 741, 765, 278 P.3d 653 (2012). A trial

court abuses its discretion if its decision is manifestly unreasonable or based on

untenable grounds. Wade. 186 Wn. App. at 773.

       To determine whether a trial irregularity warrants a new trial, we examine

(1) the seriousness of the irregularity, (2) whether it involved cumulative

evidence, and (3) whether the trial court properly instructed the jury to disregard

it. Emery. 174 Wn.2d at 765.       Denial of a mistrial should be overturned only

when there is a "'substantial likelihood'" that the error affected the jury's verdict.

State v. Rodriguez. 146 Wn.2d 260, 269-70, 45 P.3d 541 (2002) (internal

quotation marks omitted) (quoting State v. Russell. 125 Wn.2d 24, 85, 882 P.2d

747(1994)).

       Here, the irregularity is the statement by the deputy that Hunter had an

"unrelated warrant" at the time of the traffic stop.       This testimony was not

cumulative with any other evidence admitted at trial. The fact that this statement

was made by a police officer, a professional witness, suggests that the

irregularity was serious. State v. Gamble. 168 Wn.2d 161, 178, 225 P.3d 973
No. 73252-8-1 / 5


(2010). As does the fact that the statement violated the court's pretrial ruling

excluding evidence of Hunter's prior bad acts. Gamble. 168 Wn.2d at 178.

       However, an unintentional introduction of inadmissible testimony is less

serious than an intentional one.     Gamble. 168 Wn.2d at 178.        In this case, the

deputy's testimony was inadvertent. Further, the statement was not a direct

reference to a prior conviction or crime.      Rather, the deputy's statement was

ambiguous and fleeting.        It did not indicate that Hunter had the propensity to

commit the charged crime. See State v. Condon. 72 Wn. App. 638, 649, 865

P.2d 521 (1993). Nor was it likely to make a significant impression on the jurors.

The seriousness of the statement is minimized by these factors and by the other

evidence presented at trial.

       Moreover, the trial court instructed the jury to disregard this testimony.

The court's curative instruction stated:

       Testimony occurred at trial that suggested the defendant may have
       had an outstanding warrant at the time she was arrested. The
       testimony was objected to and has now been stricken. There is no
       evidence in this case the defendant may have had any warrant.
       The jury shall disregard anything that was said on the subject and
       shall not consider it in deciding this case.121

Juries are presumed to follow the court's instructions. State v. Kirkman. 159
Wn.2d 918, 928, 155 P.3d 125 (2007). As a result, there is not a substantial

likelihood that the deputy's statement affected the jury's verdict.

       For these reasons, we conclude that the deputy's statement was not so

serious as to warrant a mistrial. The court's curative instruction was sufficient to




2 Clerk's Papers (CP) at 31.
No. 73252-8-1 / 6


alleviate any prejudice that may have resulted. The trial court did not abuse its

discretion.


       Hunter relies on State v. Escalona. 49 Wn. App. 251, 742 P.2d 190

(1987), to argue that the irregularity could not be cured. In that case, the State

charged Escalona with second-degree assault with a deadly weapon—a knife.

49 Wn. App. at 252.     At trial, the victim stated that he was afraid because

Escalona "'has a record and had stabbed someone.'" 49 Wn. App. at 253. The

trial court denied Escalona's motion for a mistrial and instructed the jury to

disregard the testimony. 49 Wn. App. at 253. On appeal, this court concluded

that the trial court abused its discretion in denying Escalona's mistrial motion,

because the irregularity was "extremely serious" given the paucity of credible

evidence, the testimony was not cumulative, and the irregularity could not be

cured by the instruction. 49 Wn. App. at 255-56. We reasoned:

       [D]espite the court's admonition, it would be extremely difficult, if
       not impossible, in this close case for the jury to ignore this
       seemingly relevant fact. Furthermore, the jury undoubtedly would
       use it for its most improper purpose, that is, to conclude that
       Escalona acted on this occasion in conformity with the assaultive
       character he demonstrated in the past.

49 Wn. App. at 256.

       Escalona is distinguishable from the present case. There, the victim's

testimony indicated that Escalona had committed a crime similar to the one for

which he was on trial. Thus, the statement was extremely prejudicial, because it

was likely that the jurors would conclude that Escalona had a propensity for

committing that type of crime. Here, in contrast, the deputy did not indicate that

Hunter had a propensity to take motor vehicles without permission or that she
No. 73252-8-1 / 7


had ever been convicted of a similar crime.      Further, unlike in Escalona. the

witness's testimony did not constitute the State's entire case against Hunter.

Here, any prejudice resulting from the vague reference to the "unrelated warrant"

was cured by the court's instruction to disregard the testimony.

      We affirm the judgment and sentence.




                                                       )/\J<*y         ACJ
WE CONCUR:




 S^r^/w^VL                                     $?JLi-*VcfL9*> ,\
