                                                                                                                  FILED
                                                                                                          COURT   OF
                                                                                                               Di \i / j
                                                                                                                     S
                                                                                                                        APPEALS
                                                                                                         Z0111 AUG 26
                                                                                                                         NI II: 37
                                                                                                                        SCI•   GTQN




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                         DIVISION II

STATE OF WASHINGTON,                                                                  No. 44135 -7 -II


                                             Respondent,


         v.




CRYSTAL ANNMARIE LUTTRELL,                                                     UNPUBLISHED OPINION


                                              Appellant.


         JOHANSON, C. J. —                    Crystal Luttrell appeals her second degree assault with a deadly
                            1
weapon     conviction.          Luttrell       argues   that ( 1)   the trial court gave erroneous self defense jury
                                                                                                        -

instructions, (     2) the trial court abused its discretion when it failed to conduct a hearing to

determine juror       unfitness, (          3) the trial court abused its discretion when it admitted improper


opinion evidence, (        4) the prosecutor committed cumulative prejudicial misconduct, and ( 5) her


counsel was ineffective.


          We hold that ( 1) the trial court' s self -
                                                    defense jury instructions were proper and the legal

standard      was   manifestly             apparent   to the   average   juror, ( 2) the trial court did not abuse its


discretion    by declining            to   question a   juror, ( 3) Luttrell failed to preserve the alleged improper


opinion error       for   review, (        4) there was no cumulative error and Luttrell was not prejudiced by


1
    RCW 9A. 36. 021( 1)(        c);    RCW 9. 94A. 825.
No. 44135 -7 -II



any   possible     misconduct    by     the   prosecutor,   and (   5)   Luttrell fails to demonstrate ineffective


assistance of counsel. Accordingly, we affirm her conviction.

                                                       FACTS


                                                   I. BACKGROUND


         In November 2011, Summer Baldwin was at the Royal Room, a bar located in Longview,


Washington.        There, she encountered Luttrell, with whom she had previously worked at a strip

club.    Luttrell was accompanied by at least two other women, Laricia Shepard and Luttrell' s

       in
sister -    law.
            -       Baldwin    and   Luttrell   were not strangers —          one month earlier, the strip club had

fired Baldwin after she allegedly assaulted Luttrell and another dancer.
                                                      Shepard2

          After    a verbal confrontation with                      on the Royal Room' s dance floor, Baldwin


retreated outside.      The verbal confrontation between Baldwin and Shepard continued outside,


Luttrell stepped in, and at some point another bar patron alerted the bouncer, Brock Mudge, to

the   fight.   Mudge, an experienced bouncer accustomed to observing the patrons, had broken up

many     altercations   at   the bar.    Mudge     observed      Luttrell     and                  to- face"
                                                                                    Baldwin " face -           yelling at

each other, then Baldwin shoving Luttrell, and Luttrell striking Baldwin in the face twice with a

partially full beer bottle,     which    broke   and cut    Baldwin'     s   face. Report   of   Proceedings ( RP) ( Aug.


20, 2012) at 69. Mudge pulled Baldwin away and Luttrell left before police arrived.

          Longview Police Officer Michael Maini, the responding officer, took statements from

Mudge       and   Baldwin.     Subsequently, Detective Ralph Webb, the assigned investigator, located

Luttrell, who agreed to speak with him.




2 Luttrell was not involved in this confrontation on the dance floor; she was elsewhere in the bar.

                                                             2
No. 44135 -7 -II



                                                     II. PROCEDURE AND TRIAL


          The State charged Luttrell with second degree assault with a deadly weapon ( RCW

9A. 36. 021( 1)(      c);    RCW 9. 94A. 825) and third degree assault with criminal negligence ( RCW


9A.36. 031( 1)( d), ( f)).


          The trial court granted Luttrell' s motion in limine to prohibit witnesses from referring to

Baldwin      as "   the     victim."   Clerk'    s   Papers ( CP)         at   31.     But during testimony, the prosecutor and

the State'   s witnesses referred          to Baldwin         as "   the       victim"   three times       without objection.   3 On the

second    day    of   trial   and after   the   fourth time the State                referred   to Baldwin as " the    victim,"   Luttrell


objected, referencing her motion in limine. The trial court simply " agreed" with Luttrell without

admonishing the jury to disregard the term. Neither the prosecutor nor the State' s witnesses used

the term again when referring to Baldwin.

          Immediately after voir dire, the trial court notified the parties that a juror had overheard

Luttrell asking        another person, "[        W] hy did they           bring       up the    issue   about strippers[ ?]"   in the halls


outside    the   courtroom.         RP (   Aug.      20, 2012)       at   8.    The trial court noted that it did not seem like


the information             would " create   any issue"       and admonished               Luttrell. RP ( Aug. 20, 2012)          at   8.   In


its concluding instructions, the trial court instructed the jury that it could only consider evidence

presented      during testimony            and       during   the trial.         The court declined to conduct a hearing to

question the juror because it was concerned with drawing more attention to the issue and

worsening any potential problem.




3
    The   prosecutor referred          to Baldwin        once when posing a question to Officer
                                                          as "   the      victim"

Maini and then referred to " victims" generally in a second question posed to Officer Maini later
in the .direct. Detective Webb referred to Baldwin as " the victim" twice before Luttrell objected
to the use of the label.
                                                                          3
No. 44135 -7 -II



         During its case -in- chief, the State offered the testimony of four witnesses, including

Mudge       and      Detective Webb. Mudge testified that Luttrell hit Baldwin twice with the bottle and


that the bottle broke the second time. Mudge also testified that after the assault, Baldwin was not


responding to anything correctly, seemed dizzy, was swaying, and was not able to say a complete

sentence        without     stopping.      Luttrell did not object to the above testimony, and during cross -

examination she raised the possibility that intoxication could have caused Baldwin to appear

dizzy and sway. During redirect examination, Mudge testified that he had seen people drunk and

had   seen people " punch             drunk" from       being   struck.   RP ( Aug. 20, 2012)    at   82.   Luttrell objected


to the foundation for these               statements,    but the trial    court admitted     Mudge'   s   testimony "[ b] ased

on [ his]   training       and experience."      RP ( Aug. 20, 2012) at 83.

            Detective Webb testified that three days after the assault, Baldwin had bruising and

swelling        on   the   right side of   her face     and appeared      to be in   pain.   In contrast, Detective Webb


saw no apparent injuries or defensive, wounds on Luttrell that day, despite Luttrell' s claim that

Baldwin had attacked her. Luttrell did not object to this testimony.

            Luttrell testified in her own defense, recounting her version of November 6 and the prior

fight   with      Baldwin      at   the strip   club.    The State cross -examined Luttrell about inconsistencies


between her testimony               and   Mudge'   s   testimony. The court sustained objections to the following

questions:




            Q           You heard the testimony of Mr. Mudge yesterday; did you not?
            A           I heard it.
            Q           And he described a situation incredibly different than what you just
                        described. [ Objection]


                        Mr. Mudge described in Exhibit 6 that you were positioned on the outside
                        of Ms. Baldwin; correct?
            A           I wasn' t.

                        You weren' t. But Mr. Mudge did say that; didn' t he?

                                                                    4
No. 44135 -7 -II



               Objection]


RP (    Aug.       21, 2012)     at   141 -42.    The court sustained several other objections during the State' s

cross- examination.




              During closing argument, the trial court sustained Luttrell' s objections to some of the

prosecutor' s comments and statements.                      Luttrell     objected     to the State' s      comment, "   So she' s now


moved         from    a   swinging, punching           motion   to   a   stabbing     motion."       RP ( Aug. 21, 2012) at 159.

The     court       implicitly   sustained       the   objection and         admonished       the   jury   to " recall what the facts


are."        RP (   Aug.   21, 2012)     at   159.     Luttrell also objected to part of the State' s self -
                                                                                                           defense legal


argument, which the court sustained and then admonished the jury to disregard the argument.

              Both the State and Luttrell proposed jury instructions, including self -
                                                                                     defense instructions.

The court gave the following general self -
                                          defense instruction, jury instruction 17, based on 11

Washington Practice:                  Washington Pattern         Jury         Instructions:     Criminal 17. 02, at 253 ( 3d ed.


2008) ( WPIC):


                          The person using the force may employ such force and means as a
              reasonably prudent person would use under the same or similar conditions as they
              appeared  to the person, taking into consideration all                                   of    the   facts   and

              circumstances known to the person at the time of the incident.


CP     at    53.    In addition to jury instruction 17, the trial court also gave jury instruction 20, stating,

                          It is lawful for a person who is in a place where that person has a right to
              be and who has reasonable grounds for believing that he is being attacked to stand
              his ground and defend against such attack by the use of lawful force. The law
              does not impose a duty to retreat.

CP      at   56.    The    court also gave       jury instruction        18   on   necessary force.        Neither party objected to

any of the self -
                defense instructions.

              The jury convicted Luttrell as charged and she now appeals the conviction.



                                                                         5
No. 44135 -7 -II



                                                            ANALYSIS


                                                       I. JURY INSTRUCTIONS


          Luttrell argues that the trial court failed to properly instruct the jury on the law of self -

defense      when     it   omitted     the   phrase " and prior         to"    from the fourth paragraph of WPIC 17. 02


because the      correct      legal    standard was not "`         manifestly        apparent '     to the     average   juror.   Br. of


Appellant       at   11 ( quoting State         v.   McCreven, 170 Wn.               App.    444, 462, 284 P. 3d 793 ( 2012),


review    denied, 176 Wn.2d 1015 ( 2013)).                  We disagree.


                                      A. STANDARD OF REVIEW AND RULES OF LAW


          We review a jury instruction challenge de novo and evaluate the jury instruction " in the

context of      the instructions        as a    whole."     State v. Benn, 120 Wn.2d 631, 654 -55, 845 P. 2d 289,


cert.   denied, 510 U. S. 944 ( 1993).               Jury instructions are sufficient when they allow the parties to

argue their theories of the case, they are not misleading, and they properly inform the jury of the

applicable      law    when read as a whole.              McCreven, 170 Wn.                 App.   at   462.    Jury instructions on

     defense must
self -                      do   more   than adequately convey the                  law;   they   must make      the "' relevant legal



standard      manifestly       apparent '       to the   average    juror.      McCreven, 170 Wn. App. at 462 ( quoting

State   v.   LeFaber; 128 Wn.2d 896, 900, 913 P. 2d 369 ( 1996),                              abrogated on other grounds by

State   v.   O' Hara, 167 Wn.2d 91, 217 P. 3d 756 ( 2009)).                         A jury instruction that misstates the law

on self -
        defense is an error of constitutional magnitude that an appellant can raise for the first

time on appeal.            RAP 2. 5(   a)(   3); State v. Kyllo, 166 Wn.2d 856, 862, 215 P. 3d 177 ( 2009).


                                                            B. ANALYSIS


             Luttrell cites to McCreven to support her assertion that the trial court' s self -
                                                                                              defense

instruction did        not make       the    legal   standard "`   manifestly        apparent '     to the   jury.   Br. of Appellant


at   10 ( quoting McCreven,                  170 Wn.      App.     at       462).    But McCreven is distinguishable.                 In


                                                                        6
No. 44135 -7 -II



McCreven, we held that self defense jury instructions that heightened the level of injury feared
                            -

by    the defendant     from "   injury"      to "    great personal          injury" and lowered the State' s burden- to

disprove the defense      misstated      the legal                       defense.
                                                        standard of self -                  170 Wn. App. at 461, 466 -67.

         Here, unlike McCreven, the trial court did not increase the .level of fear of injury Luttrell

must have had to invoke self -
                             defense or otherwise misstate the law of self defense, and did not
                                                                           -


lower the burden         of   proof     on   the      State.      Instead the general self -
                                                                                           defense instruction here


eliminated     the   optional phrase " and            prior    to"    in the last sentence of the pattern instruction' s


fourth   paragraph: "     The    person [     using] [    or] [   offering to use] the force may employ such force

and means as a reasonably prudent person would use under the same or similar conditions as

they appeared to the person, taking into consideration all of the facts and circumstances known to

the   person at   the time     of [ and prior        to] the incident.          WPIC 17. 02.      The failure to include this


language did not prohibit or deter the jury from considering the prior assault in determining

whether      Luttrell   was   acting in           defense.
                                             self -                  While it    omitted " and prior         to" from the pattern


instruction, the trial court explicitly instructed the jury that it was to consider " all of the facts and

circumstances        known to the      person at       the time       of   the incident."   CP   at   53 (   emphasis added).   In


addition, this instruction still, required the State to disprove self -
                                                                      defense beyond a reasonable

doubt.


          When read as a whole, the trial court' s jury instruction correctly stated the law, did not

restrict Luttrell' s ability to argue her theory of the case, and made it "manifestly apparent" that

the   jury   could consider     the   prior assault      in their deliberations. We presume that juries follow all


the instructions given unless there is affirmative evidence that a jury disregarded a trial court' s

instructions. State      v.   Brunson, 128 Wn.2d 98, 109 -10, 905 P. 2d 346 ( 1995) (                         citing State v. Lord,

117 Wn.2d 829, 861, 822 P. 2d 177 ( 1991),                           cent.   denied, 506 U. S. 856 ( 1992)).          There is no

                                                                      7
No. 44135 -7 -II



affirmative evidence that the jury disregarded the court' s instructions. Accordingly, we hold that

the trial court' s instructions on self -
                                        defense were a proper statement of the law and that the legal


standard of self -
                 defense was manifestly apparent to the jury.

                                                      II. JUROR FITNESS


         Next, Luttrell argues that the trial court denied her due process when it failed to conduct a


hearing after a juror notified the court that she heard information about Luttrell outside of the

courtroom.      Specifically,       she argues      that the trial court ( 1)         should have conducted a hearing to

determine      whether       the juror was         fit to   serve       and (   2)   should have questioned the juror to


determine whether the information she heard outside the courtroom would influence her

decision. We conclude that the trial court did not abuse its discretion when it retained the juror


without questioning her.

                                   A. STANDARD OF REVIEW AND RULES OF LAW


         We review a trial court' s decision to hold a hearing or excuse a juror for abuse of

discretion.     State   v.   Jorden, 103 Wn.          App.    221, 226, 11 P. 3d 866 ( 2000), review denied, 143


Wn.2d 1015 ( 2001).           We will not impose a mandatory format for establishing such a record and

we defer to the trial court' s discretion to hear and resolve the issue in a way that avoids tainting

the juror and creating prejudice against either party. Jorden, 103 Wn. App. at 229.

         It is the duty of the trial court to dismiss any juror who, in the court' s opinion, is unfit as

a juror as a result of bias, prejudice, indifference, inattention, or any physical or mental defect

that   would   interfere      with " proper and efficient           jury    service."     RCW 2. 36. 110.     RCW 2. 36. 110


and CrR 6. 5 place a continuing obligation on the trial court to excuse any juror who is unfit and

unable   to    perform       the   duties   of a   juror.    Jorden, 103 Wn.             App.   at   227.   But neither RCW


2. 36. 110 nor CrR 6. 5 requires the trial court to conduct a hearing. See CrR 6. 5; Jorden, 103 Wn.

                                                                    8
No. 44135- 7- 11



App.    at    227.    A trial court does not abuse its discretion by retaining a juror when the court' s

reasoning is grounded on a tenable basis and there is no evidence in the record of juror
misconduct.          State      v.   Morfin, 171 Wn.             App.      1,       12, 287 P. 3d 600 ( 2012), review denied, 176


Wn.2d 1025 ( 2013).


                                                                  B. ANALYSIS


             Luttrell   relies on      State v. Elmore, 155 Wn.2d 758, 123 P. 3d 72 ( 2005), to support her


contention that the trial court should have conducted a hearing. Elmore requires that when faced

with questions of juror fitness, the trial court must ( 1) try to resolve any issue by reinstructing the

jury;   and    if reinstruction is       not effective, (             2) conduct a " limited" inquiry that is narrowly focused

on "   the    conduct      of   the jurors        and   the   process           of   deliverations."      155 Wn.2d      at   774.   But the


Elmore       rule applies when          the trial   court        is   dismissing       a   juror. 155 Wn.2d     at   767. Here, the juror


was retained without anybody questioning her.

             Instead, we turn to Morfin from Division Three of this court, which dealt with the trial

court   retaining a juror             after   a   complaint            that the      juror   refused    to deliberate.    The trial court


determined that the juror               was still       fit to    serve and          declined      to interview the juror.     Morfin, 171


Wn.     App.    at   12.   Division Three refused to impose a duty to conduct a hearing or interview of a

juror when a trial court retains a juror and limited the second prong of Elmore to those cases

which    involve dismissal             of a   juror. Morfin, 171 Wn.                   App.   at   11 - 12. Division Three held that the


trial court did not abuse its discretion when it retained the juror, that it grounded its reasoning on

a tenable basis, that it had instructed the jury on its duty to deliberate, and that there was no

evidence in the record that the juror was unfit to continue serving on the jury. Morfin, 171 Wn.

App. at 12.



                                                                                9
No. 44135 -7 -II



              Here, the trial court determined that the juror' s exposure to the " issue about strippers" did

not make         that   juror   unfit   to   serve.   RP ( Aug. 20, 2012)     at   8. There was no extensive questioning


or   investigation        on    the   record.     In its concluding instructions, the trial court instructed the jury

that


                      i] t is your duty to decide the facts in the case based upon the evidence
              presented to you during this trial... .

                      The evidence that you are to consider during your deliberations consists of
              the testimony that you have heard from the witnesses, stipulations and the exhibits
              that I have admitted during the trial. If evidence was not admitted or stricken

              from the record, then you are not to consider it in reaching your verdict.

CP     at    34. There was no evidence in the trial record that the juror engaged in misconduct or was


unfit to serve because of bias.

              Because this issue does not involve juror dismissal, the trial court was not required to

conduct an extensive investigation into the juror' s fitness to serve. There is no evidence that the

trial       court' s    admonishments           and   instructions failed to remedy any           potential   issue —thus, a


hearing        was not required.             Accordingly, we hold that the trial court did not abuse its discretion

when it declined to hold a hearing to investigate the juror' s fitness to serve on the jury.

              Next, Luttrell argues that case law requires the trial court to question the juror to

determine         whether       the     extrinsic     information   about "   strippers"     influenced their   verdict.   We


conclude that the information about strippers that the juror overheard was not extrinsic


information because witnesses testified at trial that both Luttrell and Baldwin worked at a strip

club and, therefore, the trial court did not abuse its discretion when it declined to question the

juror in these circumstances.


              Extrinsic evidence is defined as information that is outside all the evidence admitted at

trial, either orally or           by    document.       Richards    v.   Overlake    Hosp.   Med. Ctr.,   59 Wn. App. 266,

                                                                    10
No. 44135 -7 -II



270, 796 P. 2d 737 ( 1990),       review    denied, 116 Wn.2d 1014 ( 1991).                  There is no presumption of


prejudice when extrinsic evidence            is    factually   developed    at   trial.    United States v. Hall, 85 F. 3d


367, 371 ( 8th Cir. 1996) (      citing United States v. Cheyenne, 855 F. 2d 566, 568 ( 8th Cir. 1988)).

         In asserting            defense,
                            self -           Luttrell       disclosed the " issue          about    strippers"   during trial

because the prior assault occurred at the strip club which employed both Luttrell and Baldwin as

exotic   dancers.    The parties extensively developed the " issue about strippers" at trial; therefore, it

was not extrinsic evidence and this eliminates any presumption of prejudice the evidence may

have had.


         Because the " issue about strippers" was not extrinsic evidence and because the trial court


properly acted to avoid any potential prejudice any questioning might cause, we hold that the

trial court did not abuse its discretion when it retained the juror without questioning.

                        III. OPINION TESTIMONY AND USE OF THE TERM " VICTIM"

         Luttrell argues ( 1)      that Mudge provided improper expert opinion testimony about the

source    of   Baldwin'   s   dizziness and stumbling; (             2) that by his descriptions of their injuries,

Detective Webb provided improper opinion testimony about which of the women were attacked;

and ( 3) that the State' s witnesses commented on Luttrell' s guilt by referring to Baldwin as " the

victim."       We   conclude    that Mudge'       s   testimony   was proper      lay     opinion   testimony.    We further


conclude that Webb' s testimony did not result in manifest constitutional error, and having failed

to object, Luttrell cannot obtain review of Webb' s testimony for the first time on appeal. Finally,

while    the   references     to Baldwin    as "      the victim" violated the trial court' s order, Luttrell cannot


 show that the term' s use materially affected the trial' s outcome here. We reject Luttrell' s claims

 as to improper testimony.



                                                                11
No. 44135 -7 -II



                                            A. STANDARD OF REVIEW AND RULES OF LAW


                The trial court has wide discretion to determine the admissibility of evidence, and the

trial court' s decision whether to admit or exclude evidence will not be reversed on appeal unless


the     appellant can establish              that   the trial court abused           its discretion."       State v. Demery, 144 Wn.2d

753, 758, 30 P. 3d 1278 ( 2001).                       Furthermore, we generally do not consider issues for the first

time on         appeal unless         the    alleged error      is   a " manifest error        affecting a    constitutional right."    RAP


2. 5(   a)(   3);     State    v.    McFarland, 127 Wn.2d 322, 332 -33,                               899 P. 2d   1251 ( 1995).      Not all


constitutional               errors    are    reviewable         under        RAP     2. 5(   a)(   3),   only those that are manifest

constitutional errors.                State    v.   Kirkman, 159 Wn.2d 918, 935, 155 P. 3d 125 ( 2007). " Manifest"


requires            that   the defendant      show actual prejudice.               Kirkman, 159 Wn.2d at 935; McFarland, 127

Wn.2d          at    333.     To determine whether an error is manifest, we preview the merits of the claimed


error     to determine              whether   the argument will              succeed.      State v. Walsh, 143 Wn.2d 1, 8, 17 P. 3d


591 ( 2001).


               No witness may testify, directly or indirectly, to the guilt of the defendant. State v. Black,

109 Wn.2d 336, 348, 745 P. 2d 12 ( 1987).                                Testimony that does not directly comment on the

defendant' s guilt or veracity, helps the jury, and is based on inferences from the evidence is not

improper opinion testimony. State v. Johnson, 152 Wn. App. 924, 930 -31, 219 P. 3d 958 ( 2009).

               Impermissible opinion testimony regarding the defendant' s guilt may be reversible error

because such evidence violates the defendant' s constitutional right to a jury trial, which includes

the independent determination                        of   the   facts   by   the   jury.   Kirkman, 159 Wn.2d           at   927.   But a lay

witness may testify to opinions or inferences that are based upon rational perceptions, that help

the jury understand the witness' s testimony, and that are not based upon scientific or specialized

knowledge.                 ER 701.      To determine whether lay opinion testimony is permissible, we consider

                                                                              12
No. 44135 -7 -II



the   circumstances of         the   case and "`(       1) the type   of witness     involved, ( 2) the specific nature of the


testimony, ( 3)       the   nature of the charges, (        4) the type of defense, and ( 5) the other evidence before

the trier of    fact. "' Demery, 144 Wn.2d                at   759 ( internal   quotation marks omitted) (    quoting City of

Seattle   v.   Heatley,       70 Wn.      App.    573, 579, 854 P. 2d 658 ( 1993), review denied, 123 Wn.2d 1011


 1994)).


                                                     B. MUDGE' S TESTIMONY


          Luttrell first argues that Mudge' s testimony about Baldwin' s dizziness was improper

expert opinion that violated Luttrell' s right to trial by a jury and her due process right to a fair

trial.   We conclude that Mudge' s testimony was permissible lay opinion testimony and that the

trial court did not abuse its discretion by admitting Mudge' s testimony.

           Mudge testified that after another bar patron alerted him to the confrontation outside


between Luttrell and Baldwin, he saw Luttrell and Baldwin " face -to- face" arguing. RP ( Aug. 20,

2012) at 69. He testified that he saw Baldwin push Luttrell and saw Luttrell hit Baldwin with the

       full
almost -          beer bottle.           Mudge attempted to separate the women, and Luttrell hit Baldwin a

second     time,      breaking       the bottle.        After Baldwin was hit with the bottle, Mudge described


Baldwin        as "   shaky" and "        dizzy" and although she never appeared to lose consciousness, she

seemed " affected             by   the   head."    RP (   Aug.   20, 2012)      at   72.    Baldwin was swaying, had a hard

time completing             sentences, and appeared             to be in   shock.     On cross -examination, Luttrell asked


Mudge if alcohol consumption could cause a person to sway and appear dizzy, and Mudge

responded        that    it    could.       But    on    redirect   examination,           Mudge testified that he was well


accustomed to seeing people drunk and seeing people physically struck, and understood the

difference.       Mudge' s training and experience as a bouncer led him to believe that Baldwin was

  punch    drunk."      RP ( Aug. 20, 2012) at 82.

                                                                      13
No. 44135 -7 -II



            Lay   witnesses      may     testify   to       opinions or      inferences      that   are "(   a) rationally based on the

perception of       the    witness, (    b) helpful to a clear understanding of the witness' testimony or the

determination of a fact in issue, and ( c) not based on scientific, technical, or other specialized


knowledge         within   the   scope of rule       702."        ER 701.          For example, a lay witness may draw on his

or her own observations to express an opinion on another person' s intoxication. Heatley, 70 Wn.

App.    at   580.     A lay witness may also draw on his practical experience or familiarity with a

particular subject.         See State      v.   Ortiz, 119 Wn.2d 294, 308 -09, 831 P. 2d 1060 ( 1992) ( tracker' s


lay    opinion      testimony         permissible       based         on   training    and    experience          as   a   tracker);   State v.


Hernandez,          85    Wn.     App.      672,     676,        935       P. 2d    623 (    1997) (    lay opinion admissible as

circumstantial evidence of identity of a drug).

            Applying the Demery factors here shows that Mudge' s statements were exactly the sort

of    lay   opinion      testimony      that ER 701            is intended to         allow.    First, Mudge was a lay witness.

Second, while he drew on his practical experience as a bouncer, he personally saw Baldwin

immediately after she was struck with the bottle, and derived his opinion that Baldwin was

 punch       drunk" from these          personal observations.                  RP ( Aug. 20, 2012)          at   82. Third, Luttrell was


charged with second and third degree assault, and Mudge provided an eye- witness account of the


fight, testifying that he saw Luttrell strike Baldwin with the beer bottle and that Baldwin was

affected after being hit. Fourth, Luttrell argued that she had struck Baldwin in self defense, and
                                                                                      -

Mudge' s testimony helped the jury to determine whether Luttrell used reasonable force against

Baldwin.       Finally, the other evidence before the jurythe remainder of Mudge' s testimony, the

testimonies of Detective Webb, Officer Maini, and Baldwin, and the photographs of Baldwin

after   the attack —       gave the jury ample basis to independently assess Mudge' s opinion and reach

its   own conclusions            as   to Luttrell'      s    guilt.    It is also significant that the defense attorney, by

                                                                           14
No. 44135- 7- 11



raising the possibility that Baldwin may have been intoxicated, opened the door to Mudge' s

redirect testimony of other reasons that Baldwin might have been dizzy and swaying.

           Ultimately, while Mudge' s opinion that being struck by the beer bottle caused Baldwin' s

dizziness supports a guilty finding, Mudge' s testimony did not impinge on the province of the

jury    and   was     not    improper.         Mudge never made an explicit or near- explicit comment on


Luttrell'   s guilt or whether           he believed Baldwin. Luttrell cannot show that the trial court abused


its discretion by admitting Mudge' s testimony, and we reject her claim.

                                              C. DETECTIVE WEBB' S TESTIMONY


           Luttrell argues that Detective Webb gave improper opinion testimony in violation of her

right to a trial by jury and to a fair trial when he testified that Baldwin appeared to have injuries

while     Luttrell did      not.    We conclude that Detective Webb' s testimony was not improper opinion

testimony and that Luttrell cannot show manifest constitutional error to merit review.

           Opinion testimony by a law enforcement officer may be especially prejudicial because

the    officer' s   testimony      carries a " special    aura   of   reliability," Kirkman, 159 Wn.2d at 928, but it is


not improper when a law enforcement officer testifies to protocol used during an investigation.

Kirkman,       159 Wn.2d            at    930 -31.     In Kirkman, our Supreme Court held that a detective' s


testimony as to the interview protocol he employed, and how he used the interview protocol, was

not    improper      opinion       testimony.        159 Wn.2d   at    931.   Such testimony does not carry a " special

aura of     reliability." Kirkman, 159 Wn.2d at 931.


            Detective Webb testified that                 when    he interviewed Baldwin, she had bruises and


appeared      to    be in   pain.        In contrast, he testified that when he interviewed Luttrell, she had no

apparent      injuries   or   defensive       wounds.     Detective Webb did not comment on the credibility of

Baldwin or Luttrell, and never stated or implied that he believed Luttrell to have assaulted

                                                                  15
No. 44135 -7 -II



Baldwin. The credibility and truthfulness of Baldwin and Luttrell remained a matter for the jury

to determine.


         Thus, Detective Webb'        s   testimony    was not        improper     opinion   testimony. Again, Luttrell

failed to object to Detective Webb' s testimony and cannot show that the testimony was improper

or prejudicial.    Accordingly, Luttrell fails to show that Detective Webb' s testimony constituted

manifest constitutional error to merit review.


                                      D. USE OF THE TERM " THE VICTIM"


         Luttrell argues that the prosecutor and the State' s witnesses improperly commented on

Luttrell'   s guilt when   they   referred   to Baldwin        as "   the   victim"   during testimony.      We conclude


that although the     reference    to Baldwin        as "   the   victim"    violated the trial court' s order, it was


harmless error.


         When an error is not of constitutional magnitude, it is harmless unless there is a


reasonable     probability that the   error   materially       affected     the   outcome of   the trial.   State v. Tharp,

96 Wn. 2d 591, 599, 637 P. 2d 961 ( 1981); accord State v. Halstien, 122 Wn.2d 109, 127, 857


P. 2d 270 ( 1993).    The improper admission of evidence constitutes harmless error if the evidence


is of minor significance in reference to the overall, overwhelming evidence as a whole. See State

v.   Thomas, 150 Wn.2d 821, 871, 83 P. 3d 970 ( 2004); State v. Bourgeois, 133 Wn.2d 389, 403,


945 P. 2d 1120 ( 1997).


            First, we note that the trial court here granted Luttrell' s motion in limine to prohibit


witnesses     from referring to Luttrell      as "   the    victim."    Therefore, any violation of this order was

improper. Luttrell asserts that the repeated use of "the victim" when referring to Baldwin was an

improper comment on her guilt and therefore prejudicial.




                                                               16
No. 44135 -7 -II



           In State     v.    Albino, 130 Conn.          App.   745, 760, 24 A.3d 602 ( 2011), the Connecticut Court


of Appeals held that when the defendant asserts a self -
                                                       defense claim, it is an improper comment

on    guilt   when      a prosecutor          uses   a   term like "     victim."      There, the prosecutor used the term


 victim"      27 times throughout the trial                  and    used " victim"       in   conjunction       with " murder"    and



 murder weapon."                  Albino, 130 Conn.        App.     at   766.   Nonetheless, the court held that while the


prosecutor' s use of "the victim" was improper, the error was harmless. Albino, 130 Conn. App.

at   778. Here, the four references to Baldwin as " the victim" over two days were sporadic. When


the term was used, it was used by Detective Webb to describe his investigation steps and by

State'   s counsel (         1)   when asking Officer Maini about his investigation steps and ( 2) a general

reference to victims Officer Maini has observed during his employment as a law enforcement

officer.


           This case is more similar to State v. Rodriguez, 107 Conn. App. 685, 946 A.2d 294,

certification       denied, 288 Conn. 904 ( 2008), discussed                      by   Albino.       130 Conn. App. at 761 -62.

There, the       prosecution            sporadically     referred   to the complaining             witness    as "   the victim" while



questioning two          of       its   witnesses.   Rodriguez, 107 Conn.           App.      at   701 -02.    The court there held


that the sporadic use, combined with evidentiary basis for the jury to find that the complaining

witness was a victim, did not prejudice the defendant. Rodriguez, 107 Conn. App. at 701 -03.

           As in Rodriguez, there was ample evidentiary basis for the court to find that Baldwin was

a victim. _First,            Mudge testified that he witnessed the assault and saw Luttrell strike Baldwin


twice     with    the    beer bottle.           Second, although Baldwin shoved Luttrell first, there was no


evidence that Baldwin continued to attack Luttrell or that Baldwin had a weapon or anything that

she could use as a weapon against                    Luttrell. Third, all of the witnesses testified about Baldwin' s


injuries,     and   the State           admitted photographic evidence of              the injuries.      Finally, Luttrell herself

                                                                         17
No. 44135 -7 -II



admitted to confronting Baldwin on November 6 and swinging a beer bottle at Baldwin after

Baldwin shoved her.


         In addition to the evidence presented at trial, the trial court likely cured any potential

harm in its instructions to the jury to disregard any remarks, statements, and arguments made by

the   attorneys   because they      were not evidence.       And we presume that jurors follow instructions.


Brunson, 128 Wn.2d at 109.


         The four references to Baldwin here as " the victim" violated the trial court' s order and,


thus, were improper; but any error was harmless because there was substantial evidence that

Luttrell did    not act   in   self defense.
                                    -           In light of the entire record, the use of the term " the victim"


by the prosecutor and the State' s witnesses did not materially affect the trial outcome.

Accordingly       we   hold that the four       references   to " the   victim"   in violation of the court' s order


were harmless error.


                                       IV. PROSECUTORIAL MISCONDUCT


         Luttrell argues that the prosecutor committed prosecutorial misconduct during testimony

and               arguments and      that the   cumulative effect of      the   misconduct prejudiced   her.   While
      closing


there may have been instances of misconduct during testimony and closing argument, we hold

that Luttrell fails to demonstrate cumulative error or that any alleged error had a substantial

likelihood of affecting the verdict.

                                  A. STANDARDS OF REVIEW AND RULES OF LAW

          To prevail on her claim of prosecutorial misconduct, Luttrell must establish that the

prosecutor' s conduct was both improper and prejudicial. State v. Gregory, 158 Wn.2d 759, 809,

 147 P. 3d 1201 ( 2006).          If Luttrell can establish that the conduct was improper, we review the


conduct for prejudice under one of two different standards. State v. Emery, 174 Wn.2d 741, 760-

                                                             18
No. 44135 -7 -II



61,   278 P. 3d 653 ( 2012).                    Where a defendant timely objects to the alleged instances of

misconduct,          the defendant must show that the prosecutor' s misconduct had a substantial

likelihood      of   affecting the   jury' s         verdict.   Emery,      174 Wn.2d    at   760. Where a defendant fails to


object to alleged misconduct, the defendant waives the error unless he or she can show that the


misconduct was so flagrant and ill intentioned that .no instruction could cure the prejudice and


that the    prejudice       had   a "`    substantial      likelihood       of   affecting the    jury   verdict. "'   Emery, 174

Wn.2d      at   761 ( quoting State             v.   Thorgerson, 172 Wn.2d 438, 455, 258 P. 3d 43 ( 2011)).                   We


review alleged improper statements in the context of the entire argument, the issues in the case,

and evidence presented at trial. Gregory, 158 Wn.2d at 810.

                                                                B. ANALYSIS


                                           1.    COMMENT ON WITNESS CREDIBILITY


         First, Luttrell asserts that the prosecutor committed misconduct by asking Luttrell to

affirm   Mudge'       s   testimony. Even if it was improper for the prosecutor to ask Luttrell to affirm

Mudge' s earlier testimony, we hold that the misconduct did not have a substantial likelihood of

affecting the jury' s verdict.

           It is prosecutorial misconduct to ask one witness if another witness is lying, and asking a

defendant to         comment on          the credibility        of another witness      is    prejudicial.   State v. Ramos, 164


Wn.    App.     327, 334, 263 P. 3d 1268 ( 2011).                     But it is not misconduct for a prosecutor to ask a


witness if another witness is mistaken. Ramos, 164 Wn. App. at 334.

           Here, the prosecutor did not ask Luttrell if Mudge was mistaken or probe into the

differences between Luttrell'               s and      Mudge'    s   testimony. Instead, he asked her to affirm Mudge' s


testimony, which seems to straddle the line of impropriety by asking the defendant to comment

on Mudge' s credibility.

                                                                       19
No. 44135 -7 -II



           The   prosecutor           told Luttrell, " And      he described a situation incredibly different than what

you    just described."           RP ( Aug. 21, 2012)          at    141 -42. After the trial court sustained the defense' s


objection,      the   prosecutor        then   asked    Luttrell, " But Mr. Mudge did say that; didn' t he ?"                 RP ( Aug.

21, 2012)       at    142.    Defense         counsel    objected        before      she   could respond.    The jury never heard

Luttrell' s     affirmation           of or    comments      on      Mudge'      s   testimony.    Additionally, the trial court

precluded the prosecution from following that line of questioning and instructed the jury to

consider only the evidence they saw and heard at trial.

           As    a    result,     Luttrell     was    not   prejudiced          because ( 1)    counsel timely objected before

Luttrell   gave       any    response        to the   prosecution' s questions             regarding Mudge'     s   testimony, ( 2) the


jury    did    not    hear    or      consider      any potentially         prejudicial       testimony,    and (   3)   the trial   court



sustained Luttrell' s objections, disallowing the prosecution to pursue any questioning about

Mudge'     s   testimony.         Accordingly, we hold that while the prosecutor may have asked Luttrell to

comment on Mudge' s testimony, Luttrell fails to show that any misconduct by the prosecutor

prejudiced her or had a substantial likelihood of affecting the verdict.

                                               2. ARGUING FACTS NOT IN EVIDENCE


           Luttrell next argues that the prosecutor committed misconduct by arguing facts not in

evidence        during       closing         argument    when        he    stated     that Luttrell "   moved from a swinging,

punching        motion       to   a   stabbing      motion,"    and that the remarks were designed to make Luttrell


appear more violent.                  RP (   Aug.   21, 2012)       at   159.    We hold that even if it was improper for the


prosecutor to argue that Luttrell made a " stabbing" motion with the beer bottle, the remarks did

not have a substantial likelihood of affecting the verdict.

           In light of the strong evidence presented that ( 1) Mudge saw Luttrell hit Baldwin with the

beer bottle; ( 2) there was no evidence Baldwin had a weapon; and ( 3) Mudge was cut sometime


                                                                          20
No. 44135 -7 -II



while   he    was    removing Baldwin from the                assault,     the brief    reference      to the " stabbing motion,"



the objection to which was sustained by the judge, did not have a substantial likelihood of

affecting the verdict. After defense' s objection, the court admonished and instructed the jury that

the arguments and remarks of the attorneys were not evidence and that they could not consider

them    in their deliberations.            We     presume    that the     jury   followed the instructions.          Brunson, 128


Wn.2d      at   109.     We hold that even assuming the remarks were improper, they did not have a

substantial likelihood of affecting the jury verdict.

                                                  3.   SELF- DEFENSE ARGUMENTS


         Luttrell       asserts     that the     prosecutor (   1)   misstated the law of self -
                                                                                               defense during closing

argument when he argued that Luttrell could have left the bar to avoid the fight, and ( 2) shifted


the burden of proof during rebuttal argument when he argued that Luttrell had to use necessary

force to                defense.
             claim self -                  We conclude that ( 1) any error regarding Luttrell' s ability to retreat

was    cured    by     the "   no   duty   to   retreat"   instruction, and ( 2) the prosecutor' s rebuttal statements


about necessary force were reasonable inferences from the evidence. Accordingly, we hold that

the prosecutor' s argument was not improper.


             A prosecutor must confine his argument to the law stated in the trial court' s instructions,

and when the prosecutor mischaracterizes the law, reversal is required if there is a substantial


likelihood that the misstatement affected the jury verdict and denied the defendant a fair trial.

State   v.    Gotcher, 52 Wn.           App.     350, 355, 759 P. 2d 1216 ( 1988); State v. Estill, 80 Wn.2d 196,


 199, 492 P. 2d 1037 ( 1972).                   Once the defendant produces some evidence of self -
                                                                                                  defense, the


burden       of proof    is    on                              defense.
                                    the State to disprove self -                    State v. Walden, 131 Wn.2d 469, 473,


932 P. 2d 1237 ( 1997).                A defendant is       entitled      to   a " no   duty   to   retreat"   instruction when the




                                                                     21
No. 44135 -7 -II



evidence      indicates that flight            was a reasonable alternative.           State v. Williams, 81 Wn. App. 738,

742, 916 P. 2d 445 ( 1996).


          The trial court instructed the jury that

                         i] t is lawful for a person who is in a place where that person has a right to
          be and who has reasonable grounds for believing that he is being attacked to stand
          his ground and defend against such attack by the use of lawful force. The law

          does not impose a duty to retreat.

CP at 56. The trial court also instructed the jury on necessary force, stating,

                        Necessary        means      that,    under the        circumstances        as they reasonably
          appeared           to the   actor at   the time, (   1) no reasonably effective alternative to the use
          of force appeared to exist and ( 2) the amount of force used was reasonable to
          effect the lawful purpose intended.


CPat54.


          Luttrell did not object to either instance of misconduct she alleges here; therefore, she


waived the error unless she can prove that the misconduct was so flagrant and ill intentioned that

no    instruction       could cure       the   prejudice and       that the     prejudice   had    a "'   substantial likelihood of


affecting the      jury       verdict. '    State v. Lindsay, 171 Wn. App. 808, 836 -37, 288 P. 3d 641 ( 2012)

 internal     quotation marks omitted) (              quoting In re Pers. Restraint of Glassmann, 175 Wn.2d 696,

704, 286 P. 3d 673 ( 2012)),               rev 'd on other grounds,         180 Wn. 2d 423, 326 P. 3d 125 ( 2014). First,


during closing argument, the prosecutor argued that it was a reasonable alternative for Luttrell to

leave the conflict instead of remaining and that she could not have felt she was in danger because

it   was "[   t] hree    girls against one girl."           RP (   Aug.   21, 2012)    at   166.    Assuming without deciding

that the prosecutor' s argument improperly implied Luttrell was under a duty to retreat, the error

was     harmless.        The    court    instructed the     jury   that Luttrell    had   no   duty   to   retreat.   The purpose of


the "   no
              duty      to   retreat"    instruction is to      prevent     a   jury   from "   erroneously conclud[ ing] that

 defendants] used more force than was necessary because they did not use the obvious and

                                                                     22
No. 44135 -7 -II



reasonablreffective alternative of retreat."              Williams, 81 Wn.           App.   at   744.    That is, the " no duty

to retreat" instruction is tailored to curing the exact error Luttrell complains of. Not only was the

misconduct not so flagrant and ill intentioned that an instruction would not have cured it, but the


proper curative instruction was given. This court presumes that the jury followed its instructions.

State   v.    Grisby,   97 Wn.2d 493, 499, 647 P. 2d 6 ( 1982),                  cert.   denied, 459 U. S. 1211 ( 1983).


Accordingly, Luttrell fails to meet her burden and she waived any error concerning the duty to

retreat.



           Next, in     rebuttal   argument,   the      prosecutor      stated, "[   Luttrell o] nly gets to claim self -

defense if the force is       not more   than is necessary."             RP (   Aug.     21, 2012)      at   184.   Earlier in his


initial closing remarks, the prosecutor correctly argued that instruction 18, the definition of

 necessary,"       required that there appeared to Luttrell to be no " reasonably effective alternative" to

striking Baldwin. RP ( Aug. 21, 2012)              at   165; CP    at   54.   It was the State' s theory of the case that

the assault was not self defense because Luttrell used more force than necessary to repel the
                         -

perceived danger when she repeatedly struck Baldwin with the bottle and that because she used

more force than was necessary, she could not assert self -
                                                         defense. Accordingly, we hold that the

prosecutor' s remarks were not improper because the State is given wide latitude to argue

reasonable inferences from the evidence and the law.

                                               4. CUMULATIVE ERROR


             Luttrell asserts that the cumulative nature of the prosecutor' s misconduct denied her a fair

trial and requires reversal of the verdict. We disagree.


             Under the cumulative error doctrine, we may reverse a conviction when the combined

effect of errors during trial denied Luttrell her right to a fair trial even if each error standing

alone      would    be harmless.      State   v.   Greiff,   141 Wn.2d 910, 929, 10 P. 3d 390 ( 2000).                        But


                                                              23
No. 44135 -7 -II



cumulative error does not apply where the errors are few and have little to no effect on the

outcome of the trial. Greiff, 141 Wn.2d at 929.

         While           there   were    two     instances   of   possible   prosecutorial    misconduct —when     the



prosecutor asked Luttrell to comment on Mudge' s testimony and when he inserted the " stabbing"

remarks during closing argumenttogether they did not prejudice Luttrell because counsel made

timely   objections, and           the trial   court gave curative admonishments or          instructions. Because the


possible errors were few and Luttrell cannot demonstrate that the misconduct had an effect on

the outcome of the trial, we hold that there was no cumulative error and that Luttrell received a

fair trial.


                                        V. INEFFECTIVE ASSISTANCE OF COUNSEL


          Luttrell argues that her counsel was ineffective when he failed to object to improper


opinion testimony and all instances of prosecutorial misconduct, and when he failed to propose

proper instructions and to object to improper self -
                                                   defense instructions. Again, we disagree.

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

deficient performance and resulting prejudice; failure to show either prong defeats this claim.

State   v.   McNeal, 145 Wn.2d 352, 362, 37 P. 3d 280 ( 2002).                   Counsel' s performance is deficient


when     it falls below          an objective standard of reasonableness.         State v. Stenson, 132 Wn.2d 668,


705, 940 P. 2d 1239 ( 1997),             cert.   denied, 523 U. S. 1008 ( 1998).    Matters that go to trial strategy

or   tactics   do   not constitute       deficient   performance.      State v.. Hendrickson, 129 Wn.2d 61, 77 -78,


917 P. 2d 563 ( 1996).             Prejudice occurs when, but for the deficient performance of counsel, there


is a reasonable probability that the outcome of the trial would have been different. Hendrickson,

 129 Wn.2d          at    78.    There is a strong presumption that counsel' s performance was effective.

Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984).

                                                                  24
No. 44135 -7 -II


            Here,   defense   counsel   vigorously     defended Luttrell, cross -examining witnesses and


objecting at several points during testimony, not least of which was an objection to the State.

asking Luttrell to       comment on     credibility   of another witness.     There was no need for defense


counsel to object to or propose alternate jury instructions because the jury instructions were

proper.      Finally, we cannot say that the decision to object or not to object was not a tactical

decision. We do        not review   tactical decisions    for ineffective   assistance claims.   Strickland, 466


U.S.   at   689; Hendrickson, 129 Wn.2d          at   77 -78.   Even if defense counsel' s actions were not


tactical, Luttrell has not proven that but for her counsel' s performance, the jury verdict would

have been different. Accordingly, we hold that Luttrell received effective assistance of counsel.

            We affirm.


            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.




We concur:




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