      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



CITY OF PUYALLUP,                                     No. 74161-6-1


                     Appellant,                       DIVISION ONE              V..O



             v.



WILLIAM E. SPENSER, SR.,                              UNPUBLISHED               co




                     Respondent.                      FILED: January 19, 2016




       Cox, J. - "It is well settled that any party may, in opening statement, refer

to admissible evidence expected to be presented at trial."1 Here, during opening

statement in a driving under the influence (DUI) trial, the City of Puyallup stated

the result of a breath alcohol test it planned to introduce into evidence. William

Spenser moved for a mistrial, arguing that mentioning the test results before they

had been admitted into evidence was unduly prejudicial. The trial court denied

the motion. Because the trial court did not abuse its discretion by denying

Spenser's motion for a mistrial, we reverse the decision of the superior court on

RALJ review and reinstate Spenser's conviction.

       The City charged Spenser with DUI in Puyallup Municipal Court. The

matter was tried there.




       1 State v. Whelchel, 115 Wn.2d 708, 727, 801 P.2d 948 (1990) (emphasis
omitted).
No. 74161-6-1/2



       During opening statement at trial, the prosecutor informed the jury that a

breath test showed that Spenser's blood alcohol was .112 or .113. Spenser

objected and moved for a mistrial, arguing that it was prejudicial to mention the

results of the breath test before establishing they would be admissible. The court

denied the motion because it had instructed the jury that counsel's statements

were not evidence. The court also noted that if the test results were ultimately

not admitted into evidence, the defense could raise the motion again.

       During trial, the court admitted the results of Spenser's breath test. The

results showed blood alcohol levels of .112 or .113, as the prosecutor had

described during opening statement.

       The jury convicted Spenser.

       Spenser obtained RALJ review in Pierce County Superior Court. The

superior court reversed his conviction, determining that the trial court had abused

its discretion by denying his motion for a mistrial. The court determined that

mentioning the results of the breath test was so prejudicial that it could not be

cured by an instruction, regardless of whether the test results were subsequently

admitted into evidence.

       Division Two of this court granted discretionary review and transferred the

case to this division of the court.

       We review for abuse of discretion a trial court's denial of a mistrial motion.2

The "court should grant a mistrial only when the defendant has been so




       2 State v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012).
No. 74161-6-1/3



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

fairly tried."3

         "It is well settled that any party may, in opening statement, refer to

admissible evidence expected to be presented at trial."4 The only requirement is

that counsel have a good faith belief that the evidence will be produced at trial.5

        Here, there is no argument that the prosecutor lacked a good faith belief

that the results of Spenser's breath test would be produced at trial. The fact that

the court admitted this evidence, also demonstrates the prosecutor's good faith.

        Thus, the City properly used its opening statement to inform the jury of

evidence which it expected to offer at trial. This conforms to well-settled law.

Accordingly, the trial court did not abuse its discretion by denying Spenser's

motion for a mistrial.

        Additionally, because the breath test results were ultimately admitted at

trial, mentioning the results during opening statement did not prejudice Spenser.

        Spenser argues that mentioning the results was prejudicial because it

could cause the jury to wonder, "'why they are necessary in this case.'"6

Essentially, this is an argument that the test results were too probative of

Spenser's guilt. Spenser fails to identify how mentioning the test results would




        3]o\

        4 Whelchel, 115 Wn.2d at 727 (emphasis omitted).

        5 State v. Grisbv, 97 Wn.2d 493, 499, 647 P.2d 6 (1982).

        6 Spenser's Response Brief at 4.
No. 74161-6-1/4



create unfair prejudice in this case, in light of the fact that the results were

admitted into evidence.

       We reverse the superior court's order for a new trial, affirm Spenser's

conviction, and direct reinstatement of the judgment on the jury verdict.



                                                              Oj?s,Z•
WE CONCUR:




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