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        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



In re the Detention of:                              No. 72003-1-1


H.N.,                                                DIVISION ONE


                     Appellant.
                                                     PUBLISHED


                                                     FILED: July 6, 2015




        Cox, J. — H.N. appeals the order committing her to involuntary treatment.

The trial court did not abuse its discretion when it admitted as substantive

evidence e-mailed screenshots of text messages that a medical expert used as

part of her opinion testimony. The evidence was sufficient to support the trial

court's finding of fact that H.N. posed a likelihood of serious harm to herself. The

allegedly improper closing argument of the prosecutor did not violate H.N.'s right

to due process. We affirm.

        The material facts are largely undisputed. H.N. is a college student who

was less than 21 years of age at the time of the events leading to this case. She

worked at part time jobs, and she had two roommates who worked with her at

one of her jobs.

        After midnight on a night in May 2014, H.N.'s two roommates returned

home to discover her unconscious on the floor and lying in a pool of her own
No. 72003-1-1/2



vomit. Nearby there was an empty bottle of wine, an empty bottle of Nyquil, and

a partially empty bottle of vodka. H.N. briefly awoke but then passed out again.

One roommate called 911, and medics responded to the scene.

         Designated mental health professionals involuntarily detained H.N. for

treatment on May 3, 2014. Thereafter, the State petitioned for up to 14 days of

additional inpatient treatment, pursuant to the involuntary treatment act, RCW

71.05.


         On May 7, 2014, the court conducted a hearing on the petition. At the

hearing, the State presented the testimony of H.N.'s two roommates, H.N.'s best

friend, ST., and a psychologist who evaluated H.N. at the hospital.

         The psychologist testified as an expert. Part of her testimony was based

on what purported to be e-mailed screenshots of text messages between H.N.

and her boyfriend, "A." These messages were exchanged on the night her

roommates found her unconscious on the floor, lying in a pool of her vomit. The

psychologist read several of these text messages into the record. Over H.N.'s

objection on the basis of lack of foundation, the court admitted this evidence.

         H.N. testified on her own behalf but presented no other evidence. She

presented no evidence to challenge the authenticity of the e-mailed screenshots

of the text messages.

         In closing argument, the prosecutor argued, "[W]hen we kind of peel back

the layers and we point out all of the people who are perceived to care greatly
about [H.N.], versus who appeared besides [H.N.] herself to advocate for her
No. 72003-1-1/3


release, I think that the evidence certainly weighs in favor of keeping her in the

hospital."1 Defense counsel did not object.

      After the hearing, the trial court found that H.N. suffered from a mental

disorder and presented a likelihood of serious harm to herself. The court entered

an order committing H.N. for involuntary treatment for a period of 14 days. The

court later entered supplemental findings of fact and conclusions of law.

       H.N. appeals.

                                    MOOTNESS


      A threshold question is whether this case is now moot because the 14-day

period of involuntary treatment has passed and this court can no longer give

effective relief. The issues before us are of continuing and substantial public

interest. Moreover, the involuntary commitment order may have future collateral

consequences for H.N. Accordingly, we reach the issues despite this case being

technically moot.

       "A case is moot if a court can no longer provide effective relief."2 As a

general rule, an appellate court will not review a moot case.3 But this court may

review a moot case if it presents issues of continuing and substantial public

interest.4 In deciding whether a case presents issues of continuing and

substantial public interest three factors are determinative: "'(1) whether the issue



       1 Report of Proceedings (May 7, 2014) at 101.

       2 Orwick v. City of Seattle. 103 Wn.2d 249, 253, 692 P.2d 793 (1984).

       3ld,

       4 Westerman v. Cary. 125 Wn.2d 277, 286, 892 P.2d 1067 (1994).
No. 72003-1-1/4


is of a public or private nature; (2) whether an authoritative determination is

desirable to provide future guidance to public officers; and (3) whether the issue

is likely to recur.'"5 A fourth factor that "may also play a role" is "'the level of

genuine adverseness and the quality of advocacy of the issues.'"6 Finally, the

court may consider "'the likelihood that the issue will escape review because the

facts of the controversy are short-lived.'"7

       "[A]n involuntary commitment order has collateral consequences for future

commitment determinations."8

       Here, there is an important evidentiary issue of first impression in this

state—whether the court abused its discretion in admitting e-mailed screenshots

of text messages. These text messages served as a primary basis for expert

testimony regarding involuntary treatment of an individual. This is an issue of a

public nature, an authoritative determination is necessary for the guidance of trial

courts, and the issue is likely to recur. And the issue is likely to evade future

review due to the 14-day limit of involuntary treatment under the circumstances

of cases like this.




       5id (quoting Hart v. Dep't of Soc. & Health Servs., 111 Wn.2d 445, 448, 759
P.2d 1206(1988).

       6 id (quoting Hart, 111 Wn.2d at 448).

       7 Id at 286-87 (quoting Citv of Seattle v. State. 100 Wn.2d 232, 250, 668 P.2d
1266(1983)).

       8 InreDet. ofM.K.. 168 Wn. App. 621, 622, 279 P.3d 897 (2012).
No. 72003-1-1/5


          Moreover, the issue of commitment will likely have collateral

consequences for H.N. should there be future questions regarding her mental

health.


          For these reasons, we reach the issues presented by this technically moot

case.



                                 EVIDENTIARY RULING

          H.N. argues that the trial court abused its discretion when it admitted as

substantive evidence e-mailed screenshots of text messages that the State's

expert witness used during her testimony. Because this evidence was properly

authenticated pursuant to ER 901(b), we disagree.

          "Authentication is a threshold requirement designed to assure that

evidence is what it purports to be."9 Under ER 901(a), "The requirement of

authentication or identification as a condition precedent to admissibility is

satisfied by evidence sufficient to support a finding that the matter in question is

what its proponent claims."

          Because the proponent must make only a prima facie showing of

authenticity for purposes of establishing admissibility, ER 901 is met "if the

proponent shows enough proof for a reasonable fact finder to find in favor of

authenticity."10 "'[T]he proponent of offered evidence need not rule out all




          9 State v. Payne. 117 Wn. App. 99, 106, 69 P.3d 889 (2003).

          10 Id. at 108 (citing State v. Danielson. 37 Wn. App. 469, 471, 681 P.2d 260
(1984)).
No. 72003-1-1/6



possibilities inconsistent with authenticity or conclusively prove that evidence is

what it purports to be .. . .'"11

       "Because under ER 104 authenticity is a preliminary determination, the

court may consider evidence that might otherwise be objectionable under other

rules."12 "Atrial court may, therefore, rely upon such information as lay opinions,

hearsay, or the proffered evidence itself in making its determination."13 "Such

information must be reliable, but need not be admissible."14

       "In making this preliminary determination, the court considers only the

evidence offered by the proponent and disregards any contrary evidence offered

by the opponent."15 "Once a prima facie showing has been made, the evidence

is admissible under ER 901 ."16 The opponent is then free to object on the basis

of any other rules that may bar the evidence or offer contradictory evidence

challenging authenticity.17 If such contradictory evidence is offered, the

authenticity of the proponent's evidence is ultimately judged by the trier offact.18



     11 State v. Andrews. 172 Wn. App. 703, 708, 293 P.3d 1203 (quoting State v.
Thompson. 777 N.W.2d 617, 624 (N.D. 2010)), review denied. 177 Wn.2d 1014 (2013).

        12 Rice v. Offshore Svs.. Inc.. 167 Wn. App. 77, 86, 272 P.3d 865 (2012).

        13 State v. Williams. 136 Wn. App. 486, 500, 150 P.3d 111 (2007).

        14 id

        15 Rice, 167 Wn. App. at 86.

        16 id

        17 id

        18 5C Karl B. Tegland, Washington Practice: Evidence Law and Practice §
901.4, 288-89 (5th ed. 2007).
No. 72003-1-1/7


       ER 901(b) provides examples of authentication conforming with the

requirements of the rule. These examples are "[b]y way of illustration only, and

not by way of limitation."19 They include the following:

             (4) Distinctive Characteristics and the Like. Appearance,
       contents, substance, internal patterns, or other distinctive
       characteristics, taken in conjunction with circumstances.



               (10) Electronic Mail (E-mail). Testimony by a person with
       knowledge that (i) the email purports to be authored or created by
       the particular sender or the sender's agent; (ii) the email purports to
       be sent from an email address associated with the particular sender
       or the sender's agent; and (iii) the appearance, contents,
       substance, internal patterns, or other distinctive characteristics of
       the email, taken in conjunction with the circumstances, are
       sufficient to support a finding that the email in question is what the
       proponent claims.'201

       The current version of ER 901(b) does not specifically address text

messages. Nevertheless, these illustrative examples provide proper bases for

the trial court's determination in this case.

       A trial court's admission of evidence is reviewed for abuse of discretion.21

An abuse of discretion occurs when a trial court's decision is manifestly

unreasonable or based on untenable grounds or reasons.22




       19 ER 901(b).

       20 id at (4), (10).

       21 State v. Maqers. 164 Wn.2d 174, 181, 189 P.3d 126 (2008).

       22 Id.
No. 72003-1-1/8


      This court recently considered authentication of text messages in State v.

Bradford.23 There, Jonathan Bradford was convicted of several offenses,

including felony stalking of his ex-girlfriend.24 Among the evidence admitted at

trial were text messages that Bradford had sent to his ex-girlfriend and her

friend.25 The text messages sent to the ex-girlfriend were introduced through the

testimony of a police officer who read to the jury quotations from the text

messages from police reports.26 Other text messages, sent to the friend, were

admitted through a 12-page condensed version of a much longer report itemizing

each text message that was retrieved from a "phone dump" report of the friend's

cellular telephone.27 Bradford appealed, claiming that the trial court erroneously

admitted the evidence of the text messages. He claimed that the State failed to

show that he sent the messages, relying on ER 901(a).28

          This court rejected Bradford's arguments. It concluded that there was

sufficient evidence to support a finding that Bradford wrote and sent the text

messages that were read to the jury and contained in the report.29



          23175 Wn. App. 912, 308 P.3d 736 (2013), review denied. 179 Wn.2d 1010
(2014).

          24 id at 915.

          25 id at 928.

          26 id at 918 n. 1,928.

          27 id at 919.

          28 id at 927.

          29 Id. at 928-29.


                                               8
No. 72003-1-1/9


       First, the court noted that Bradford's actions showed his "desperate

desire" to communicate with his ex-girlfriend.30 And it stated that "[i]t was

consistent with this obsessive behavior that [Bradford] would also send text

messages to [the friend] as part of his efforts to contact [his ex-girlfriend]."31

       Second, the court stated that "the content of the text messages

themselves indicated that Bradford was the individual who sent them."32 For

example, the text messages repeatedly mentioned his ex-girlfriend's name.

Further, the threats contained in the text messages "were consistent with

Bradford's previous threats made in 2010."33 Additionally, other texts referenced

the name of the restaurant in which Bradford had seen his ex-girlfriend.34

       Third, the court noted that two of the text messages threatened to cause

an explosion.35 And shortly after these messages were sent, the ex-girlfriend

received a suspicious package from Bradford.36

       Fourth, the court stated, "Also pertinent was the fact that, between

January 22 and May 23, 2011, Bradford was in jail and, therefore, unable to send

text messages or e-mails. During this same time period, [the friend] did not



       30 id    at 929.


       31 id

       32 id

       33 id

       34 \d. at   930.

       35 Id at 929.

       36 Id.
No. 72003-1-1/10


receive any offensive text messages."37 Once Bradford was released from jail,

the friend began to receive offensive text messages again.38

          Finally, the court noted that the ex-girlfriend and her friend testified to their

belief that the text messages were from Bradford.39

          As an initial matter, we note that the current version of ER 901(b) that we

quoted earlier in this opinion was not before the Bradford court. Specifically, ER

901(b)(10) now specifically refers to e-mails, whereas the earlier version did

not.40 The trial court specifically relied on the current version of this rule for its

ruling.

          The evidentiary ruling arose during Dr. Cynthia Mason's testimony. She

was qualified as an expert medical witness on behalf of the State. She testified

that she considered the e-mailed screenshots of text messages as an important

basis for her opinions and that experts in her field generally rely upon such

evidence. Significantly, she also discussed these e-mailed screenshots of text

messages with H.N. when she evaluated her.

          Over H.N.'s objection, based on lack of foundation, the trial court admitted

the e-mailed screenshots of the text messages that Dr. Mason read into the

record.




          37 id at 929-30.

          38 ]d at 930.

          39 Id.

      40 See former ER 901 (b)(10) (1979) ("Methods Provided by Statute or Rule. Any
method of authentication or identification provided by statute or court rule.").


                                                 10
No. 72003-1-1/11



       Dr. Mason believed the text messages were sent to H.N.'s boyfriend who

lived out of state. She testified that the first message was sent at 11:00 p.m. and

was initiated by H.N. It stated, "I'm about to do something really stupid."41 H.N.

then wrote, "I need you. I need someone."42 The next message stated, "I've got

two bottles of wine and a bottle of 80 proof vodka. It's going down my throat with

some prescription meds."43 When asked what happened, H.N. responded, "I'm

sh*t. That's what happened."44

       Dr. Mason continued to summarize the conversation:


       And he presses and—and—asking her. And he's asking her what
       was the problem. At 11:08 p.m. she writes, quote, I'm almost done
       with one bottle, end quote. And he's asking her to talk to her and
       she responded—or he responded at 11:08 p.m., quote, you're not
       going to kill yourself for someone who isn't worth it, end quote.

              At 11:09 p.m. she wrote back, quote, I'm not killing myself for
       that reason, end quote. And then she texts again, quote, I'm killing
       myself because I'm tired, end quote. And she's going on about a
       relationship that it appears has—has failed. And he's pleading with
       her to keep the bottles and the medicine away and just talk to him.

              And she responds at 11:11 p.m., quote, I miss [H.N.'s ex-
       boyfriend], end quote. And he's telling her to relax and talk to her
       and—and stop drinking. He's pleading with her. And at 11:15 p.m.
       she writes, quote, don't tell [S.j. And Ibelieve that that's [ST.] who
       is present in court today, about what's happening. And then he
       responded back by saying, at 11:16, I already told her... .

               At 11:16 she responded, quote, I know, she called me, end
       quote. And then he's pleading with her to relax and not kill herself.
       At 11:17 she responds, quote, one bottle is gone, [A.]. I don't know

       41 Report of Proceedings (May 7, 2014) at 53.

       42 Id

       43 id

       44 id


                                              11
No. 72003-1-1/12



      what to do, end quote. And he's trying to reassure her that
      everything will be all right.

             At 11:19 she writes, quote, I can't. He responds at 11:19,1
      won't let you die. I'll take care of you. I love you, remember? At
      11:20 she responds, I can't. At 11:20 she responds, quote, in a
      minute I won't be able to text, end quote. And he's pleading with
      her and saying why, why, why? At 11:21 she's responding, I'm
      dizzy, end quote. At 11:22 she's responding, I need you, end
      quote.

             At 11:23 she responds, quote, please don't tell [S.]. There is
      nothing she can do, end quote. He's saying I won't be able to live
      with myself if something happens to you. And then he informs her
      that somebody is coming over for her to take care of her. And she
      responds at 11:27, who? And then she—he's saying that a friend is
      going to come see her. At 11:29 she types, I can't see any more,
      I'm sorry. And he's responding that this person that he's sending
      over is her friend. And she pleads with him at 11:33, no, tell him
      not to come. I don't want him.


              At 11:36 she types, I want to see my mom, who's deceased.
      And at 11:36 she types I want to see [her ex-boyfriend], who's
      again deceased. He's saying that your dying doesn't mean that
      you'll see him. At 11:39 she types after life. Again, he's pleading
      with her not to kill herself.

               She types some—couple times at 11:54 and 11:56 some
      faces, a bike and five hand gestures, followed by I hurt.[45]

       Dr. Mason testified that there was no correspondence again until 1:12

a.m., when she wrote "I think I'm at the hospital now."46

       When the prosecutor asked ifthe timeline corresponded with the timing of

this incident, Dr. Mason answered affirmatively.

       The court overruled H.N.'s objection to this evidence and stated:

       I am going to accept [the e-mailed screenshots of the text
       messages] as substantive evidence. If you take a look at ER

       45 id at 53-55.

       46 Id. at 55.


                                            12
No. 72003-1-1/13



       901(b)(10), I can look to the appearance, the content, the
       substance, the internal patterns or other general distinctive
       characteristics in order to authenticate these documents.

             And given the date and time, her name, her phone number,
       and the content of these text messages, that provides this Court
       with circumstantial evidence that these in fact were statements
       made by [H.N.], and I will accept them as such.[47]

       This ruling was a proper exercise of discretion.

       First, it is significant that Dr. Mason confronted H.N. with the e-mailed

screenshots of the text messages during the evaluation that preceded the court

hearing. H.N. acknowledged sending the text messages but claimed she did not

recall to whom. Nevertheless, this interaction between the two evidences that

the e-mailed screenshots of text messages admitted as substantive evidence

were what they purported to be—statements by H.N. during the incident that

gave rise to her involuntary commitment for treatment.

       Second, the identifying information at the top of the text messages

indicates that H.N. was the sender. Dr. Mason testified that the text messages

listed the sender's phone number. She further testified that that the sender's

phone number matched the contact information in H.N.'s medical chart. She also

testified that H.N.'s full name was identified and displayed as the sender of the

text messages.

       Third, the content of the text messages themselves also suggests that

H.N. was the sender. The messages consistently reference names of people in

H.N.'s life.




       47 ]d at 58-59.


                                             13
No. 72003-1-1/14


       Fourth, the text messages are consistent with certain events that

happened in H.N.'s life. For example, one text messages states, "I want to see

my mom" and another states "I want to see [H.N.'s ex-boyfriend]."48 Both H.N.'s

mom and her ex-boyfriend are deceased. Additionally, another message states,

"I've got two bottles of wine and a bottle of 80 proof vodka. It's going down my

throat with some prescription meds."49 This is consistent with the fact that wine

and vodka bottles were found near H.N.'s unconscious body.

       Finally, the timing of the text messages is consistent with H.N.'s

hospitalization on the night of the incident. The date of the screenshots indicate

that they were taken on May 4, 2014. H.N. was detained on May 3, 2014.

Further, the text messages themselves are time-stamped. The text message

conversation starts at around 11:00 p.m. and stops at around 12:00 a.m.

According to their testimony, H.N.'s roommates found H.N. unconscious around

12:00 a.m. to 12:30 a.m. They called 911 and paramedics took H.N. to the

hospital. The text messages resume at 1:12 a.m. with one that states, "I think I'm

at the hospital now."50

       In sum, the requirements of ER 901(b)(10) are satisfied by analogy. The

record establishes that the e-mailed screenshots of text messages were

authored by H.N. Likewise, they were sent from the cell number associated with

H.N. Finally, the distinctive characteristics of the messages, taken in conjunction


       48 id at 55; Supplemental Documents Requested by the Court.

       49 Id at 53.

       50 id at 55.


                                            14
No. 72003-1-1/15



with the circumstances are sufficient to support authentication. For these

reasons, we conclude that the trial court correctly decided that the State's prima

facie showing was sufficient to admit this evidence.

       H.N. attempts to distinguish this case from Bradford in several ways.

None of her arguments are persuasive.

       First, H.N. points out that, in contrast to Bradford, the document in this

case was not produced as part of a report generated by the recipient's cell

service provider. This is true. But that is immaterial.

       The evidence in this case shows that H.N. acknowledged sending these

text messages. Moreover, for the reasons the trial court stated in its ruling, there

was sufficient evidence to authenticate them.

       In any event, the fact that the text messages in Bradford were produced

as part of a report was not material to the court's analysis. Rather, the court

relied on the circumstantial evidence we discussed earlier in this opinion to

conclude that the text messages were properly authenticated.

       Second, H.N. argues that "while in Bradford the sender was unverified,

here both the sender and the recipient remain unverified."51 But this overlooks

that the sender, H.N. was verified. She acknowledged sending the text

messages. Further, Dr. Mason testified that the phone number in the e-mailed

screenshots of the text messages was the same as that in H.N.'s medical

records. This, as well as the other evidence we discussed previously, was




       51 Brief of Appellant at 11.


                                             15
No. 72003-1-1/16


sufficient to verify that H.N. was the sender. The fact that the recipient was not

also verified does not appear to be a requirement to authenticate this evidence.

       In any event, the information concerning the identity of the recipient was

not material to the reasoning in Bradford. While knowledge of the recipient might

be helpful to establishing authentication, H.N. fails to point to any authority

indicating that such evidence is required.

       H.N.'s arguments about State v. Danielson fail for the same reason.52 In

that case, an officer testified that he had received a telephone call and spoken

with an individual who identified himself as the defendant.53 H.N. contrasts

Danielson and asserts that in this case, "No individual testified that he had

received the text messages, or even the emailed screen shots of the text

messages. Without this testimony, the messages could not be properly

authenticated."54 But again, H.N. fails to provide any authority to support this

assertion. Thus, we reject it.

       H.N. argues that without testimony from a witness who could testify that

he had received the messages, "[Tjhere was [no] way to verify how the emailed

documents had been actually created or whether they had been altered."55

       It is unclear whether this argument is directed to the screenshots of the

text messages or to the e-mail that transmitted them. As we have consistently

       52 Appellant's Reply Brief at 1-2 (citing State v. Danielson. 37 Wn. App. 469, 681
P.2d 260 (1984)).

       53 Danielson. 37 Wn. App. at 472.

       54 Appellant's Reply Brief at 2.

       55 Id. at 3.


                                               16
No. 72003-1-1/17


stated in this opinion, the document from which Dr. Mason quoted at the hearing

was composed of e-mailed screenshots of text messages.

       If this argument is directed to the screenshots of the text messages

contained in the e-mail, we have already considered and rejected the challenges

in our prior discussion in this opinion. If, however, this argument is directed to

the e-mails themselves, we conclude that H.N. did not preserve this argument.

H.N. did not argue in the trial court that the e-mails themselves, as distinct from

the screenshots of text messages within the e-mail, were not authenticated.

Rather, the focus below was limited to the text messages, and the trial court's

ruling was similarly focused. Likewise, on appeal, the briefing does not develop

this alternative. Accordingly, we do not further address it.

       Finally, H.N. argues that "there was no evidence presented about when

the text messages had been obtained."56 But the screenshots are dated May 4,

2014. H.N. also asserts, "The fact that the messages appeared to be time

stamped was not sufficient for authentication because the recipient of the

messages did not testify and the evidence did not come directly from the cell

phone."57 But she fails to provide any authority to support this assertion.

Further, the time stamps provide circumstantial evidence of authentication.

Thus, this is not persuasive.




       56 Brief of Appellant at 12.

       57 Id.


                                             17
No. 72003-1-1/18


                        SUFFICIENCY OF THE EVIDENCE


       H.N. next argues that the State presented insufficient evidence to support

the trial court's finding that she presented a likelihood of serious harm to herself.

We disagree.

       To commit a person for involuntary treatment, the State must show by a

preponderance of the evidence that the person, as a result of a mental disorder,

presents a likelihood of serious harm, or is gravely disabled.58 "Likelihood of

serious harm" to oneself means a "substantial risk that. . . [p]hysical harm will be

inflicted by a person upon his or her own person, as evidenced by threats or

attempts to commit suicide or inflict physical harm on oneself."59

       "[W]here the trial court has weighed the evidence, appellate review is

limited to determining whether substantial evidence supports the findings and, if

so, whether the findings in turn support the trial court's conclusions of law and

judgment."60 Substantial evidence is the quantum of evidence sufficient to

persuade a fair-minded person of the truth of the declared premise.61

       Here, sufficient evidence supports the finding that H.N. presented a

likelihood of serious harm to herself. Supplemental finding of fact 7 sets forth the

evidence that the court relied on in making this determination:




       58 RCW 71.05.240(3).

       59RCW71.05.020(25)(a)(i).

       60 In re Pet, of LaBelle. 107 Wn.2d 196, 209, 728 P.2d 138 (1986).

       61 InreDet.ofA.S.. 91 Wn. App. 146, 162, 955 P.2d 836 (1998), affd, 138
Wn.2d 898, 982 P.2d 1156 (1999).


                                              18
No. 72003-1-1/19


              The Court finds that as a result of [H.N.'s] mental disorder,
      she presents a substantial risk of harm to herself, as defined under
      RCW 71.05.020(25)(a)(i). This is based upon the testimony of the
      Petitioner's witnesses, who testified as to how they came home to
      discover [H.N.] passed out in her own vomit near the doorway of
      their shared apartment. They were concerned that she was dead
      and immediately called for help after being unable to successfully
      rouse her. Near [H.N.'s] unconscious body, they found an empty
      bottle of wine, an almost empty bottle of vodka, and an empty bottle
      of Nyquil, which the roommates testified nobody other than [H.N.]
      could have consumed. Those bottles all had been mostly full
      earlier that day. In finding that the Petitioner's witnesses' version of
      the events is more credible than [H.N.'s] version, the Court notes
      that the text messages between [H.N.] and "[A.]" are extremely
      important to the analysis and undermine [H.N.'s] version of the
      events. The Court notes [that H.N.] is high functioning. However,
      before she had consumed all of the alcohol and become inebriated,
      she was already texting "[A.]" indicating that she had alcohol and
      medication in her possession that she was going to begin
      consuming for the purpose of killing herself. The Court finds this is
      not the action of someone who is too drunk to know what they are
      doing, which is contrary to [H.N.'s] testimony that she was too
      drunk to remember what she was texting. The Court finds the
      specificity of [H.N.'s] text message comments demonstrates that
      [H.N.] was very aware of what she was saying and what she
      intended to do. The Court finds that in light of all the evidence, this
      was a verifiable and true suicide attempt, which had been planned
      out and implemented. The timing of the events also weighs in the
      Petitioner's favor. The testimony well establishes that May is a
      tough time of year for [H.N.] and that leading up to the suicide
      attempt, the roommates . . . had noticed an increased avoidance,
      withdrawal, increased sleep patterns, [H.N.] skipping classes, and
      not wanting to be with friends.'621

      Substantial evidence in the record supports this finding of fact.

Specifically, it is supported by the testimony of H.N.'s two roommates and Dr.

Mason who testified to the content of the text messages. The trial court

expressly found the testimony of these witnesses credible and H.N.'s testimony

not credible. This court does not review credibility determinations.


      62 Clerk's Papers at 31.


                                            19
No. 72003-1-1/20


       The e-mailed screenshots of text messages and the court's credibility

determinations support its finding that this was a "verifiable and true suicide

attempt." Several of the text messages clearly indicate that H.N. was attempting

suicide. And this recent suicide attempt is evidence that there is a substantial

risk that H.N. will inflict physical harm upon her own person. In sum, substantial

evidence supports the finding that H.N. presents a likelihood of serious harm to

herself.


       Moreover, even if the e-mailed screenshots of text messages, revealing

her recent suicide attempt, were improperly considered as substantive evidence,

the testimony of H.N.'s roommates and H.N.'s best friend also supports the

challenged finding.

       Their testimony shows that H.N. recently inflicted physical harm on herself

at times other than the suicide attempt. One of H.N.'s roommates testified that

H.N. had recently cut herself and admitted hurting herself on purpose. H.N.'s

best friend testified that she had recently seen injuries on H.N., including cuts on

H.N.'s ankles and a burn on her wrist.

       Their testimony also shows that H.N. continued to present a risk of harm

to herself. One roommate testified that she was worried about H.N. hurting

herself if she were to go back to the apartment in her current condition. H.N.'s

second roommate also testified that she did not think she could keep H.N. safe in

her current condition. H.N.'s best friend expressed similar concerns.

       In short, the evidence is sufficient to support the challenged finding.




                                             20
No. 72003-1-1/21


       H.N. argues that "[w]hile the statute allows for the consideration of past

suicide attempts, it requires that the State show physical harm will be inflicted,

not simply that [H.N.] has inflicted harm upon herself in the past."63 But the

statute only requires that the State show a "substantial risk" that physical harm

will be inflicted. Further, the statute expressly states that "likelihood of serious

harm" means a substantial risk that "[p]hysical harm will be inflicted by a person

upon his or her own person, as evidenced by threats or attempts to commit

suicide or inflict physical harm on oneself."6* Thus, evidence of a past

suicide attempt is evidence of a substantial risk that physical harm will be

inflicted. Accordingly, this argument is not persuasive.

                                     DUE PROCESS

       Finally, H.N. argues that the prosecutor improperly commented on her

failure to present evidence and that this violated her right to due process. We

conclude that any error does not warrant reversal.

       Prosecutorial misconduct is grounds for reversal if the prosecutor's

conduct was both improper and prejudicial.65 A reviewing court determines the

effect of a prosecutor's improper conduct by examining that conduct in the full

trial context, including the evidence presented, the context of the total argument,

the issues in the case, and the evidence addressed in the argument.66


       63 Brief of Appellant at 19-20.

       64 RCW 71.05.020(25)(a)(i) (emphasis added).

       65 State v. Monday. 171 Wn.2d 667, 675, 257 P.3d 551 (2011).

       66 id


                                              21
No. 72003-1-1/22


       In the absence of evidence to the contrary, we presume the judge in a

bench trial does not consider improper matters or inadmissible evidence in

rendering a verdict.67

       Here, H.N. argues that the prosecutor committed misconduct when he

made the following statement during closing argument:

       We've heard a lot of testimony. Again, I—I'll concede on the one
       hand that [H.N.] presents very well today. I think that was
       expected. And I think that if we had only that context in mind,
       certainly we probably wouldn't have grounds.

               But when we kind of peel back the layers and we point
       out all of the people who are perceived to care greatly about
       [H.N.], versus who appeared besides [H.N.] herself to advocate
       for her release, I think that the evidence certainly weighs in
       favor of keeping her in the hospital.16®

There was no objection.

       H.N. also points to the prosecutor's cross-examination of H.N., during

which he asked her if her psychiatric provider, therapist, friend, and boyfriend

were in court advocating for her release, to which H.N. responded that they were

not. Again, there was no objection.

       We need not decide whether these actions were improper. The fact that

H.N. did not object at trial "'strongly suggests' that the remark[s] did not appear

critically prejudicial in the trial's context."69 Further, an appellate court presumes

that the trial court disregarded inadmissible matters and followed the law.


       67 State v. Gower, 179 Wn.2d 851, 855, 321 P.3d 1178 (2014).

       68 Report of Proceedings (May 7, 2014) at 101 (emphasis added).

       69 Monday. 171 Wn.2d at 679 (quoting State v. Swan, 114 Wn.2d 613, 661, 790
P.2d 610 (1990)).


                                              22
No. 72003-1-1/23


       H.N. points out that the trial court remarked that "[tjhere is something in

[H.N.'s] testimony that just does not add up."70 And she asserts, "Given that the

judge noted H.N.'s testimony was lacking something, the deputy prosecutor's

insistence that H.N.'s failure to present additional witnesses should be held

against her was prejudicial to H.N."71 This is not persuasive.

       The judge's statement does not either establish prejudice or show that the

judge relied on the allegedly improper argument. Rather, it merely demonstrates

that the judge did not find H.N. credible.

       In short, reversal is not required.

       We affirm the order of commitment.

                                                          CfjA,^-
WE CONCUR:




       Q^fr^c^.^ err




       70 Report of Proceedings (May 7, 2014) at 109.

       71 Brief of Appellant at 16.


                                             23
