                                                                          FILED
                                                                      JANUARY 4, 2018
                                                                 In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III




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

STATE OF WASHINGTON,                          )
                                              )         No. 34739-7-III
                     Respondent,              )
                                              )
       V.                                     )
                                              )
JESSICA NICOLE RAVENHEART,                    )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO, J. -Jessica Ravenheart appeals      from convictions for third and fourth

degree assault, and interference with a report of domestic violence, arguing that the

prosecutor's comments in rebuttal deprived her of a fair trial. We affirm.

                                          FACTS

       Ms. Ravenheart was arrested for domestic violence after throwing a fire

extinguisher at her fiance. She also prevented him from calling for assistance by

throwing the telephone in the toilet. When denied pain medication, she twice struck an

officer. These actions resulted, respectively, in the charges of fourth degree assault,

interference with a domestic violence report, and third degree assault.
No. 34739-7-111
State v. Ravenheart


       The defense offered evidence at trial that Ms. Ravenheart suffered from post­

traumatic stress disorder and obtained instructions for a diminished capacity defense.

Her counsel opened his argument:

      Apology accepted. That's where this case should have ended. This is a
      mental health, this is a-a psychological issue, this is some other issue, but
      this is not a criminal justice issue. Apology accepted. That should have
      been the end of it. Instead of being here today, and going through this, and
      dragging everyone through this-apology accepted. Let's get her some
      help. That's what she wanted. That's what Leo wanted. Wanted her to get
      some help.

Report of Proceedings (RP) at 96. In rebuttal, the prosecutor stated:

             Ladies and gentlemen, I'll try to be brief.
             Dr. Wilson didn't testify that she didn't have the intent to punch
      Officer Winegardner. And he didn't testify that she didn't have the intent
      to kick Officer Winegardner. He testified why she might hit or kick Officer
      Winegardner.
             This case isn't about whether or not someone said they were sorry.
      This case is about accepting consequences for your actions. And on
      February 28, 2016, Ms. Ravenwood [sic] got mad, and she got violent. She
      had violent actions. She needs to face the consequences for those.

RP at 100.

      The defense did not object to the argument. The jury rejected the diminished

capacity defense and convicted Ms. Ravenheart as charged. She then timely appealed to

this court. A panel considered the matter without argument.

                                       ANALYSIS

      The sole issue presented by this appeal is a contention that the prosecutor's

statement that defendant "needs to face the consequences" constituted misconduct

                                            2
No. 34739-7-111
State v. Ravenheart


requiring a new trial. She specifically argues that the statement was an appeal to

prejudice. We believe it was an appropriate response to the defense argument.

       The standards governing this challenge are well settled. Prosecutors can properly

draw reasonable inferences from the evidence admitted at trial and argue those inferences

to the jury. State v. Hoffman, 116 Wn.2d 51,94-95,804 P.2d 577 (1991); State v. Hale,

26 Wn. App. 211,216,611 P.2d 1370 (1980). The prosecutor also can respond to the

defense presentation and argue that the evidence does not support the defendant's theory

of the case. State v. Russell, 125 Wn.2d 24,87,882 P.2d 747 (1994). "Mere appeals to

jury passion and prejudic_e,as well as prejudicial allusions to matters outside the

evidence,are inappropriate." State v. Belgarde, 110 Wn.2d 504,507,755 P.2d 174

(1988). However,the defendant must object to the prosecutor's allegedly improper

argument to preserve a claim of error unless the argument was so "flagrant and ill

intentioned that no curative instructions could have obviated the prejudice." Id. When

improper argument is alleged,the defense bears the burden of establishing the

impropriety of the prosecuting attorney's comments as well as their prejudicial effect.

Hoffman, 116 Wn.2d at 93.

       The challenged statement here was a clear response to the defense argument.

Instead of concluding that Ms. Ravenheart's apology was sufficient to resolve the case,

the prosecutor focused the jury on the inadequacy of the diminished capacity evidence



                                             3
No. 34739-7-III
State v. Ravenheart


and that this was not a case of a defendant being unable to control her behavior. Like

anyone else, she was accountable and should be found guilty.

       While there are certainly circumstances where asking a jury to hold someone

accountable might be an improper appeal to emotion, this was not such an instance. The

remark was not improper in context. Moreover, even if the statement could have been

construed as an appeal to emotion, it was not such an egregious error as to be beyond

correction. Thus, the failure to challenge the remark also amounted to a waiver of the

argument. 1

       For both reasons, the contention is without merit. The convictions are affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




      Lawrence-Berrey, A.c:.                           Pennell, J.


       1
         Ms. Ravenheart has asked that we waive appellate costs. In the event that the
State seeks costs, our commissioner will consider the request in accordance with RAP
14.2.

                                            4
