                                                                                                                     FILED
                                                                                                          COURT OF APPEALS
                                                     1tNSIC A II
    IN THE COURT OF APPEALS OF THE STATE OF WASHING'
                                                                                                         2015 FE !    0    AM 8 : 57
                                                 DIVISION II
                                                                                                         ST'' ;           ASH ' GTON
 STATE OF WASHINGTON,                                                                 No. 45115 -8 -II
                                                                                                         BY
                                    Respondent.


          v.



 MICHAEL T. JACKSON,                                                      UNPUBLISHED OPINION


                                    Appellant.



        MELNICK, J. —        Michael Jackson appeals his jury trial conviction of assault in the second

degree. He argues that the court violated his Confrontation Clause rights as well as the evidentiary

rules by admitting a hospital record containing statements from non -testifying treatment personnel;

the trial court abused its discretion by continuing the trial beyond the time for trial period; the trial

court erroneously refused to instruct the jury on the lesser included offense of assault in the fourth

degree; the prosecutor committed misconduct in his closing argument; counsel was ineffective by

failing to adequately argue the Confrontation Clause issue; and the trial court erred by ordering

Jackson to pay      costs.    We accept the State' s concession on the last issue and remand with

instructions to vacate the domestic violence assessment costs and the contributions to the expert


witness fund and special assault unit. In all other respects, we affirm.


                                                         FACTS


        Alexandria Siefert, while seated with her fiance in his car, observed Jackson attempting to

push   Amber L.   Lindsey     into traffic. Jackson        chased   Lindsey    across    the   street.   He caught up to

her, grabbed her by the hair, bashed her face against a telephone pole, and then choked her with

both hands.    Lindsey entered Siefert' s fiance' s car after Siefert' s fiance opened the car door.

Jackson   grabbed   Lindsey' s   hair   and   tried to   pull   her from the   car.   Siefert' s fiance began to drive
45115 -8 -II




          and    Jackson    was       momentarily dragged along before he                          released   Lindsey' s     hair.   Jackson
away,


yelled obscenities at the departing car.

           Immediately thereafter, Lindsey was crying and shaking and yelling " Oh, my god. Oh, my

god."     Report    of   Proceedings ( RP) ( June 5, 2013)                    at   447. "[ T] here was a lot of blood everywhere."


RP ( June 5, 2013) at 447. Siefert and her fiance took Lindsey to the hospital.

           At the hospital,        Lindsey      told   a   triage      nurse       that "'   My ex boyfriend ( Michael) just beat me
                                                                       1
up   on   the   side of   the   road. "'   Ex. 12A,        at   104.        Lindsey added that " she was pushed into a wooden

pole    hitting    the back      of   her head, he tried to                strangle    her,   pulled   her hair   and `[   p] ushed my head

into   stuff. "'   Ex. 12A, at 105. The triage nurse did not testify.

           Dr. Timothy Dahlgren examined Lindsey, who told him that her " exboyfriend had grabbed

her and pushed her to the ground such that she struck the back of her head on the ground" and that

 he pushed her face against the hinge of the car or against the car, which is the part that caused the

laceration."       RP (June 5, 2013) at 374. Dr. Dahlgren testified that he needed Lindsey' s information

about her injuries to help determine if Lindsey could safely leave the hospital, or if Lindsey needed
 access     to   help   to protect them in the future."                     RP ( June 5, 2013) at 375.


           Dr. Dahlgren sutured the three- centimeter laceration Lindsey suffered from the assault. Dr.

Dahlgren testified that based              on   his   experience,            if one looked closely        enough, " there     would always



be   a scar"     from     such a      suturing. RP ( June 5, 2013)                    at   377. But Dr. Dahlgren testified on cross -


examination that he had not seen Lindsey since treating her, and had no way of knowing what kind

of a scar she might have.




 1 Exhibit 12A was designated to this court as clerk' s papers. The exhibit page number reflects
the designated clerk' s papers page number.

                                                                              2
45115 -8 -II




          Dr. Dahlgren also referred Lindsey to a social worker. Lindsey told the social worker that

Jackson had " hit her in the face/ head              and   hit her head   against a street sign or pole."     Ex. 12A, at


111.       The        social    worker      referred     Lindsey' s     case    to   law   enforcement     for "   possible




abuse /neglect /violence."            Ex. 12A, at 110. The social worker did not testify.

          Officer Jonathan Meador              met     briefly   with   Lindsey. He observed the large cut on her

forehead        and   her ten   stitches.     He then located Jackson           and spoke    with   him.   Jackson gave


inconsistent accounts of what happened. First, Jackson claimed that he had not seen Lindsey at all

that   day. Then, Jackson claimed in his written statement that he and Lindsey had been going to

do laundry when Lindsey stopped to speak with an acquaintance in a car, and bumped her head on

the doorframe. -


          The State charged Jackson with assault in the second degree with a domestic violence

enhancement. 2

                                               PROCEDURAL HISTORY


I.        TIME FOR TRIAL


          Jackson' s arraignment occurred on February 20, 2013, and trial was set for April 15, 2013.

On April 11, 2013, the State requested a three -week continuance because Siefert was going to be

working in Montana             until   May   6, 2013.      Jackson objected on the grounds that Siefert was not a


necessary       witness    because      she was   merely     a   passerby.     The trial court disagreed, finding good

cause to continue the trial to May 5, thus extending the time for trial deadline to June 5. See CrR

3. 3( b)( 5).




2
     RCW 9A.36. 021( 1)(        a);   RCW 10. 99. 020.
45115 -8 -II




              On May 6, the State moved for a second continuance because Officer Meador would be

unavailable until the end of May because of out -of -state military training. Again Jackson objected,

requesting          a "   discussion ...      to find   out whether or not      this   could   have been         avoided."   RP ( May

6, 2013)       at   5.    The trial   court rejected     Jackson'     s argument and continued           the trial to June 3.    Trial


commenced on that date, within the time for trial deadline.


II.           TRIAL


              The State relied on the testimony of Dr. Dahlgren, Siefert and Officer Meador. Lindsey,

the triage      nurse, and        the social worker to         whom        Lindsey   spoke   did not testify. Over Jackson' s


objection, the State introduced, and the court admitted, a hospital record that contained the triage

nurse' s and social worker' s notes. Jackson did not testify and he raised a defense of general denial.

              At trial, Jackson proposed a jury instruction on the inferior degree offense of assault in the

fourth degree. He argued that no evidence existed to show that Lindsey' s injury was " substantial."

RP ( June 5, 2013) at 484. The trial court rejected the instruction, ruling that the defense failed to

present evidence "             affirmatively      establish[   ing]   the defendant'    s   theory    of   the   case."   RP ( June 5,


2013) at 485.


              During closing arguments, the prosecutor addressed Lindsey' s failure to testify, telling the

jury    that it " heard        her   voice"   through Siefert'    s and     Dr. Dahlgren'      s   testimony. 3 RP ( Jun. 6, 2013)

at 513. The prosecutor further added that victims of domestic violence in general need to be heard:


              One of the jurors asked me during voir dire, you know, if the complaining witness
              of a crime       did   testify, why would we be in court? You know, why would we
                                     not

              be here?        Okay. Well,  the answer is because victims of domestic violence need a
              voice.      They do. Even when they' re not potentially strong enough to stand up on
              their      own, they need someone to stand up for them.   And that' s why we' re here
              today. You didn' t hear from the victim, but you did hear her voice.


3 Jackson did not object to this line of argument, except as to the prosecutor' s reference to Lindsey
as    the "   victim."       RP ( June 6, 2013) at 527, 562. Jackson does not raise that issue on appeal.

                                                                       4
45115 -8 -II




RP ( June 6, 2013)         at   527 -28.    The prosecutor also explained the concept of reasonable doubt to

the jury using the example of knowing that the world is round:

         And we all agree that no one had ever been to space, no one had actually observed
         the earth being round. But we had a common sense appreciation of the fact. We
         all agreed that because of that, we were satisfied beyond a reasonable doubt that the
         earth is round. All right. That' s how you need to think about the proof in this case,
            having a common sense appreciation of the facts.

RP ( June 6, 2013)        at    515.    The prosecutor further argued that " trying to concoct a scenario where

the defendant did not commit this crime would be as unrealistic as trying to concoct a scenario

where   I    am not an    attorney."       RP ( June 6, 2013) at 567. Jackson did not object to these statements.


            In rebuttal, the prosecutor argued that Jackson' s closing argument left him " at a loss for

words."       RP ( June 6, 2013)            at   563.   Jackson timely objected to this statement, but the court

overruled the objection and the prosecutor continued to contradict Jackson' s closing argument that

implied                         Siefert had been " reckless."        RP ( June 6, 2013)   at   564. The prosecutor told
             Lindsey     and




the   jury   that "[   f]or someone to sit here and tell you that the victim was reckless in this crime .. .

or that the people who helped her were reckless, I hope that leaves you at a loss for words as well."

RP ( June 6, 2013) at 565.


            The jury convicted Jackson of assault in the second degree, but hung on the issue of

whether Jackson and Lindsey had been members of the same family or household. At sentencing,

the   court ordered       Jackson to pay $ 1,       135 in fees for his court- appointed attorney, a $ 100 domestic

violence assessment, a $               100 contribution to the Kitsap County expert witness fund, and a $ 500

 contribution to the Kitsap County special assault unit. Jackson appealed his conviction.




                                                                 5
45115 -8 - II



                                                            ANALYSIS


I.          STATEMENTS OF NON -TESTIFYING NURSE AND SOCIAL WORKER

            Jackson argues that the trial court violated ER 802 and his Sixth and Fourteenth

Amendment rights to confront adverse witnesses when it admitted the notes of the nurse and social


worker who treated Lindsey. The State argues that the court properly admitted the notes because

they were not testimonial and they fell within the business records exception to the hearsay rule.
We agree with the State and uphold the trial court.


            A.           ER 802


            Jackson argues that the nurse' s and social worker' s notes constituted inadmissible hearsay.

Hearsay is defined as " a statement, other than one made by the declarant while testifying at the
                                   in              to           the truth        the   matter asserted."   ER 801(    c).   Hearsay
trial or    hearing,     offered        evidence        prove               of




is   not admissible " except as provided                by these   rules,   by   other court rules, or     by   statute."   ER 802.


One exception to hearsay includes statements made for purposes of medical diagnosis or treatment.

ER 803(      a)(   4).   The availability of the declarant is immaterial to the admission of these statements.

ER 803( a)( 4).           In addition, RCW 5. 45. 020, the Uniform Business Records as Evidence Act,

provides that:


            A record of an act, condition or event, shall in so far as relevant, be competent
            evidence if the custodian or other qualified witness testifies to its identity and the
            mode of its preparation, and if it was made in the regular course of business, at or
            near the time of the act, condition or event, and if, in the opinion of the court, the
            sources of information, method and time of preparation were such as to justify its
            admission.




            We review a trial court' s decision to admit evidence pursuant to a hearsay exception for

 abuse of     discretion. State          v.   Woods, 143 Wn.2d 561, 595, 23 P. 3d 1046 ( 2001).                     A trial court' s


 decision to admit or exclude business records under RCW 5. 45. 020 " is given great weight and will

 not   be   reversed unless        there has been a      manifest abuse of         discretion." State v. Ziegler, 114 Wn.2d

                                                                    6
45115 -8 - I1



533, 538, 789 P. 2d        79 ( 1990). A manifest abuse of discretion occurs only when " no reasonable

trial   court would    have     ruled as   the trial court   did."   State v. Embry, 171 Wn. App 714, 736, 287

P. 3d 648 ( 2012).


          Here, Lindsey' s hospital record included her statements to the nurse and the social worker.

Dr. Dahlgren, the treating physician, testified to the identity and the mode of preparation of the

record. The hospital record was made in the ordinary course of the hospital' s business, and was

 generated       contemporaneously         with   the treatment      of   the   patient."   RP ( June 5, 2013) at 356.


Finally, the trial court ruled that the source and method of preparation justified the admission of

the hospital     record,   pointing to the " likelihood that the      records are     trustworthy." RP ( June 5, 2013)

at343.



          We hold that the factors of RCW 5. 45. 020 were met and that because the court properly

admitted Lindsey' s hospital record as a duly authenticated business record, it did not abuse its
discretion.


           B.        Confrontation Clause


           A Confrontation Clause analysis is separate from analysis under the rules of evidence.

Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 158 L. Ed. 2d 177 ( 2004). We review


an alleged violation of         the Confrontation Clause de          novo.      State v. Hurtado, 173 Wn. App. 592,

598, 294 P. 3d 838 ( 2013).         A Confrontation Clause claim may be raised for the firsttime on appeal

if it   arises   to the level   of a manifest error    affecting     a constitutional right.     State v. Kronich, 160


Wn.2d 893, 899 -901, 161 P. 3d 982 ( 2007),                  overruled on other grounds by State v. Jasper, 174

Wn.2d 96, 271 P. 3d 876 ( 2012); RAP 2. 5( a)( 3).




                                                                7
45115 -8 -II



        The Sixth and Fourteenth Amendments to the United States Constitution guarantee an

accused person     the   right   to   confront adverse             witnesses.     U.S. CONST. Amends. VI, XIV.                 The


Confrontation Clause bars " admission of testimonial statements of a witness who did not appear

at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross -

examination."     Crawford, 541 U. S.             at   53 -54.     A statement is testimonial if "the primary purpose

of the interrogation is to establish or prove past events potentially relevant to later criminal

prosecution."    Davis v. Washington, 547 U. S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 ( 2006).

The State bears the burden to establish that a statement is non -testimonial and thus admissible


absent an opportunity to cross -examine. Hurtado, 173 Wn. App. at 600.

        The Washington courts have repeatedly reaffirmed that a statement made for the purpose

of medical     diagnosis   or   treatment        is   not   testimonial   for Confrontation Clause         purposes.     State v.


Sandoval, 137 Wn.        App.    532, 538, 154 P. 3d 271 ( 2007);                 State v. Saunders, 132 Wn. App. 592,

603, 132 P. 3d 743 ( 2006); State           v.   Fisher, 130 Wn.         App.    1, 13 - 14, 108 P. 3d 1262 ( 2005); State v.


Moses, 129 Wn.               718, 730, 119 P. 3d 906 ( 2005);                             Michigan   v.   Bryant, _      U.S. _,
                    App.                                                       see also




131 S. Ct. 1143, 1157        n. 9,    179 L. Ed. 2d 93 ( 2011); Melendez -Diaz v. Massachusetts, 557 U.S.


305, 312, 129 S. Ct. 2527, 174 L. Ed. 2d 314 ( 2009);                         Giles v. California, 554 U.S. 353, 376, 128

S. Ct 2678, 171 L. Ed. 2d 488 ( 2008).                  This proposition is true even when, as here, the statement

                                 inflicts                                      See Sandoval, 137 Wn.        App.   at   538.   The
inculpates     a person who                 injury      on   the   patient.




rationale is that a medical professional may wish to " recommend counseling or escape from the

dangerous domestic         environment as part of a              treatment     plan."   Saunders, 132 Wn. App. at 608.

         Jackson argues that the above cases are distinguishable because the medical professionals

 in those cases testified, and the social worker and triage nurse here did not. Jackson argues that it

 is the statements of the absent social worker and triage nurse themselves, rather than Lindsey' s


                                                                     8
45115 -8 -II



statements to these people, that violated the Confrontation Clause. But the identity of the speaker

does not alter either the reliability of the statements or their primary purpose: to assist the treating

physician to best determine a course of medical treatment that will best protect the patient from

further harm. The social worker and triage nurse entered their notes into the hospital record not to

facilitate Jackson'         s prosecution,   but in   order   to "   prevent recurrence and        future   injury."   State v.


Williams, 137 Wn.            App.   736, 746, 154 P. 3d 322 ( 2007).         This non -testimonial purpose remained


constant whether Lindsey made the statements or the social worker or triage nurse repeated her

words. Nothing in the record raises any inference that the triage nurse' s and the social worker' s

statements in the hospital record were made for any purpose other than assessment and treatment.

The Confrontation Clause did              not   bar the   admission of     the hospital    record.    We reject Jackson' s


claim and uphold the trial court.4

II,      TIME FOR TRIAL


                                                                     the time for trial           by granting continuances
                                                                                          rules




         Jackson        argues   that the trial   court violated




of the trial without inquiring whether the State had exercised due diligence in securing the

attendance of         its   witnesses.   The State argues that Jackson failed to create a record that the State


had not been diligent, or to show that the defense would be prejudiced. We agree with the State.




4 Even if the trial court violated the Confrontation Clause, the error was harmless. We look to the
untainted evidence to determine if it is so overwhelming that it necessarily leads to a finding of
guilt.   State   v.    Guloy,    104 Wn.2d 412, 426, 705 P. 2d 1182 ( 1985).               Here, the untainted testimony
of Siefert and Dr. Dahlgren established that Jackson physically struck Lindsey at least once, and
that Lindsey was left with a severe laceration on her forehead immediately afterward.
Furthermore, Jackson' s untainted statements were so contradictory as to discredit Jackson' s
account of the incident. The weight of this evidence overwhelmingly establishes Jackson' s guilt,
making any Confrontation Clause violation harmless.

 5 CrR 3. 3.

                                                                 9
45115 -8 -II



         The application of the time for trial rule to a given set of facts is a question of law that we

review   de   novo.    State   v.   Lackey,    153 Wn. App. 791, 798, 223 P. 3d 1215 ( 2009). Yet the decision


to grant or deny a motion for a continuance rests within the sound discretion of the trial court.

State v. Downing, 151 Wn.2d 265, 272, 87 P. 3d 1169 ( 2004).

         CrR 3. 3( b)( 1) requires an accused person who is in custody to be brought to trial within 60

days of arraignment. The court may continue the trial date " when such continuance is required in

the administration of justice and the defendant will not be prejudiced in the presentation of his or

her defense."         CrR 3. 3( f)(2).     The    continuance   tolls the time for trial    period.     CrR 3. 3( e)( 3).


Because Jackson' s trial occurred on June 3, within the first extension of the time for trial, we

review only the first order of continuance.

           When a witness is absent, a continuance should be granted only if the party seeking the

continuance     has    exercised     due diligence in securing the    attendance of   the   witness."   City ofSeattle

v. Clewis, 159 Wn. App. 842, 847, 247 P. 3d 449 ( 2011). 6 Due diligence requires the proper
issuance   of subpoenas        to    essential witnesses.     Clewis, 159 Wn.   App.   at   847.   Here, although the


record does not show whether the State served a subpoena on Siefert, copies of the State' s

subpoena are contained              therein.    Jackson contends the absence of a signature or return on the


subpoena means          the State failed to       exercise   due diligence.   We note, however, that in the trial


court, Jackson objected to the continuance solely on the basis that Siefert was not a necessary

witness. We will not review the alleged failure to subpoena a witness for the first time on appeal.

Clewis, 159 Wn. App. at 848.




6 We note that the " due diligence" language is from a case that occurred prior to the amendment
of CrR 3. 3. For purposes of this case, we need not decide whether its viability continues under the
amended rule. Neither party briefed it.
                                                               10
45115 -8 -II




          By failing to timely raise the State' s alleged failure to subpoena Siefert, Jackson failed to

preserve       the      issue for   review.    The trial court did not abuse its discretion by granting the first

continuance, and Jackson' s trial was timely. We uphold the trial court.

III.      INFERIOR DEGREE INSTRUCTION


          Jackson argues that the court erred by not instructing the jury on the inferior degree offense

of assault          in the fourth degree.       The State argues that no factual basis existed to instruct on the


inferior degree offense because the evidence did not support a finding that only assault in the fourth

degree was committed. We agree with the State.

              A.           Statutory Rights

              A defendant has         an "` unqualified right '   to have an inferior degree offense passed upon by

the    jury.       State   v.   Parker, 102 Wn. 2d 161, 163, 683 P. 2d 189 ( 1984) (     quoting State v. Young, 22

Wash. 273, 276 -77, 60 P. 650 ( 1900)); RCW 10. 61. 003, . 010. This right is not subject to harmless


error analysis. Parker, 102 Wn.2d at 164.


              An instruction on an inferior degree offense is properly administered when

                   1)   the statutes for both the charged offense and the proposed inferior degree
              offense proscribe         but   one offense; (   2) the information charges an offense that is
              divided into degrees, and the proposed offense is an inferior degree of the charged
              offense; and ( 3) there is evidence that the defendant committed only the inferior
              offense."




State    v.   Fernandez- Medina, 141 Wn.2d 448, 454, 6 P. 3d 1150 ( 2000) (               quoting State v. Peterson,

133 Wn.2d 885, 891, 948 P. 2d 381 ( 1997)) ( internal                  quotations omitted).   This test contains a legal


component and a factual component. Fernandez- Medina, 141 Wn.2d at 454 -56. The parties agree

that the legal component of the test is satisfied. Therefore, only the factual prong is at issue.




                                                                  11
45115 -8 -II




        The factual prong of the test requires evidence which " raise[ s] an inference that only the

lesser included /inferior degree offense was committed to the exclusion of the charged offense."


Fernandez- Medina, 141 Wn.2d         at   455 ( emphasis in        original).    In other words, the evidence must


 permit a jury to rationally find a defendant guilty of the lesser offense and acquit him of the

greater."   State   v.   Warden, 133 Wn.2d 559, 563, 947 P. 2d 708 ( 1997). "[                      T] he evidence must


affirmatively    establish   the defendant'   s   theory   of   the   case —   it is not enough that the jury might

disbelieve the evidence pointing to        guilt."   Fernandez- Medina, 141 Wn.2d                  at   456. We view the


evidence in the light most favorable to the party requesting the inferior degree instruction.

Fernandez- Medina, 141 Wn.2d at 455 -56.


        A person is guilty of assault in the fourth degree " if, under circumstances not amounting

to assault in the first, second, or third degree, or custodial assault, he or she assaults another."

RCW     9A. 36. 041.       Jackson   was    charged        under      RCW      9A.36. 021( 1)(    a),   which   proscribes




  i] ntentionally assault[ ing] another and thereby recklessly inflict[ ing] substantial bodily harm."

Substantial bodily harm is defined as " bodily injury which involves a temporary but substantial

disfigurement, or which causes a temporary but substantial loss or impairment of the function of

any   bodily   part or organ, or which causes a       fracture     of   any   bodily   part."    RCW 9A.04. 110( 4)( b);


11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 2. 03. 01, at 26

 3rd ed. 2008).     Therefore, Jackson is entitled to an inferior degree instruction if the evidence raised


an inference that he only committed assault in the fourth degree, i.e. that Lindsey did not suffer

substantial bodily harm.

         Even viewed in the light most favorable to Jackson, the evidence fails to establish that

Lindsey did not suffer substantial bodily harm. She suffered a three- centimeter long laceration on

her forehead that required ten stitches to close. She lost a large amount of blood. The responding



                                                            12
45115 -8 -II




officer   immediately            saw   Lindsey' s injury. The evidence unequivocally established that Lindsey

suffered a substantial disfigurement.


          Jackson argues that Dr. Dahlgren did not know whether Lindsey' s scar still existed or

would     be   visible.     However, this argument misses the point. The definition of substantial bodily

harm does       not require a permanent             injury. A temporary injury is sufficient if it is substantial.

Because the evidence unequivocally established that Lindsey had a " temporary but substantial

disfigurement,"           the evidence failed to raise the inference that only assault in the fourth degree was

committed.          RCW 9A. 04. 110( 4)( b). We reject Jackson' s claim and uphold the trial court.


          B.          Due Process Rights


          Jackson raises the alternative argument that state and federal due process rights entitled

him to    an   inferior degree          offense   instruction. U. S. CONST.   amend.    XIV; CONST.      art.   I, § 3.   We


reject his claim.


          Although he invokes both the state and federal constitutions, Jackson asks only that we

apply the " traditional federal             standard    for evaluating   procedural     due   process   claims."      Br. of


Appellant      at    25   n. 10.   Federal due process " requires that a lesser included offense instruction be

given   only    when       the   evidence warrants such an     instruction." Hopper v. Evans, 456 U. S. 605, 611,


102 S. Ct. 2049, 72 L. Ed. 2d 367 ( 1982) (                emphasis   in   original).   As previously articulated, the

evidence       did   not warrant an        inferior degree instruction.     Instead, by unequivocally establishing

substantial bodily harm, the evidence precluded instructing on assault in the fourth degree.

Jackson was not entitled to an inferior degree offense instruction under either RCW 10. 61. 010 or

the constitution.




                                                               13
45115 -8 -II




IV.       PROSECUTORIAL MISCONDUCT


           Allegations of prosecutorial misconduct are reviewed under an abuse of discretion

standard."     State       v.   Brett, 126 Wn.2d 136, 174 -75, 892 P. 2d 29 ( 1995).             Generally, the prosecutorial

misconduct        inquiry         consists    of    two   prongs: "(     1)   whether the prosecutor' s     comments     were


improper;      and (   2) if     so, whether    the improper      comments caused prejudice."           State v. Lindsay, 180

Wn.2d 423, 431, 326 P. 3d 125 ( 2014).                         The defendant bears the burden of showing that the

prosecutor' s remarks were both improper and prejudicial in the context of the record and all the

circumstances       of      trial.   In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P. 3d 673

 2012).


          Jackson          alleges    three improper          comments        by   the   prosecutor.   The defendant timely

objected     to   one       of   them.       That comment will be discussed first, followed by the other two

comments Jackson did not object to.


          A.           Disparaging Defense Counsel

          It is misconduct for the prosecutor to impugn the role or integrity of defense counsel.

Lindsay, 180 Wn.2d at 431 -32. For example, a prosecutor commits misconduct by referring to the

defense' s case as " bogus" or involving " sleight of hand" because such language implies " wrongful

deception      or even          dishonesty     in the     context of a court       proceeding."    State v. Thorgerson, 172


Wn.2d 438, 451 -52, 258 P. 3d 43 ( 2011).                     Similarly, a prosecutor commits misconduct by referring

to the   defense'      s   closing    argument as       a"   crock."    Lindsay, 180 Wn.2d at 433 -34.

           Here, the prosecutor argued in rebuttal that Jackson' s closing argument had left him " at a

loss for                                                     feel the          way. RP ( June 6, 2013)     at   563, 565. This
           words"          and    that the   jury   should              same




argument suggested that the defense' s closing argument should cause outrage in a reasonable




                                                                       14
45115 -8 -I1




person. The prosecutor impugned defense counsel by implying that the defense' s theory was not

only incorrect, but shameful. We hold that the prosecutor' s comment was 'improper.

           We      next examine     the issue    of prejudice.    To demonstrate prejudice, Jackson must show a


substantial likelihood that the prosecutor' s statements affected the jury' s verdict. State v. Emery,

174 Wn.2d 741, 760, 278 P. 3d 653 ( 2012).                       A prosecutor' s improper comments may not be

grounds     for    reversal   if they   were   specifically   provoked   by   defense   counsel.   State v. Weber, 159


Wn.2d 252, 276, 149 P. 3d 646 ( 2006).

           Here, defense counsel provoked the prosecutor' s statements when he argued that Siefert' s


fiance had acted unsafely when he drove Lindsey away from Jackson:

                      What kind         of reckless   behavior do     you     have in this   case?   We have

           somebody in a car without somebody seated, without somebody with a safety —
           with    their seatbelt   on—    pulling out into traffic, presumably with the door half open,
           still   dragging    Mr. Jackson along.        Okay. Is that recklessness attributable to Mr.
           Jackson? No.


RP ( June 6, 2013) at 545. This argument was not only irrelevant, but it improperly cast aspersions

on   Lindsey' s      rescuers'   actions.      Although the prosecutor may have been a bit overzealous in his

response, it was reasonable for the prosecutor to respond to the egregious nature of the defense

argument. The jury could independently evaluate whether defense counsel' s comments ought to

leave one at a loss for words. Jackson fails to demonstrate he was prejudiced by the prosecutor' s

rebuttal.



           B.         Appeals to Passion or Prejudice


           Where the defendant fails to object or request a curative instruction at trial, the issue of

misconduct is waived unless the conduct was so flagrant and ill-intentioned that an instruction

could not have cured the resulting prejudice. State v. Stenson, 132 Wn.2d 668, 719, 940 P. 2d 1239

  1997).    Under this heightened standard, the defendant must show both that " no curative instruction


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would    have     obviated    any    prejudicial   effect      on   the   jury" and that the misconduct resulted in

prejudice     that " had   a substantial     likelihood   of   affecting the jury   verdict."     Thorgerson, 172 Wn.2d


at455.




          It is misconduct for a prosecutor to ask the jury to " decide guilt on something other than

the   evidence,"     such as sympathy for the victim. Moore v. Morton, 255 F.3d 95, 117 ( 3d Cir. 2001).

Here, the prosecutor argued that Jackson was being tried " because victims of domestic violence

need a voice" and "        they need   someone     to   stand   up for them." RP ( June 6, 2013) at 527. The State


argues that the prosecutor was merely explaining how Siefert' s and Dr. Dahlgren' s testimony

compensated for Lindsey' s failure to testify. But there is a difference between stating that Lindsey

had    a voice ( because      her   statements came       in through the testimony       of other witnesses),     and that


she    needed a      voice.    By    arguing that       Lindsey "     need[ ed]   someone    to   stand   up" for her, the


prosecutor suggested that the jury should stand up for Lindsey and convict Jackson. RP ( June 6,

2013)    at   527.   This improper argument implied that the jury should convict Jackson for reasons

other than the strength of the evidence. However, any prejudice from this statement was cured by

the trial court' s instruction that " the lawyers' statements are not evidence" but are only " intended

to   help [ the jury]     understand   the   evidence and      apply the law." Clerk' s Papers ( CP) at 78. Jackson


fails to meet the heightened Stenson standard, and thus he has waived the error.

          C.         Burden of Proof


              Arguments by the prosecution that shift or misstate the State' s burden to prove the

defendant'      s guilt   beyond    a reasonable   doubt    constitute misconduct."         Lindsay, 180 Wn.2d at 434.

Again, because Jackson failed to timely object to the prosecution' s comments, the heightened

Stenson standard applies.




                                                                 16
45115 -8 - II




          It is misconduct for a prosecutor to trivialize the State' s burden of proof by comparing the

reasonable       doubt      standard       to everyday decision- making.          Lindsay,         180 Wn.2d       at   436.   Here, the


prosecutor argued               that the   jury   could    be " satisfied beyond a reasonable doubt that the earth is


round"    based       on   its "   common sense appreciation of the             fact." RP ( June 6, 2013) at 515.


          But the prosecutor' s argument was not intended to indicate that Jackson' s guilt was as

obvious as       the   fact that the         earth   is   round.    Rather, the prosecutor' s argument occurred in the


framework        of   explaining       what an "     abiding belief in the truth            of   the   charge"   meant.    RP ( June 6,


2013)    at    514.    In context, the prosecutor' s argument meant that in order to convict Jackson, the


jury needed to be as certain that Jackson was guilty as it was certain that the earth is round. While

the prosecutor articulated the reasonable doubt standard poorly, any prejudice could have been

cured with a timely objection and a reminder to the jury to apply the reasonable doubt standard as

defined in the instructions.                Jackson cannot show that the prosecutor' s comment was incurable,

and Jackson has waived the error.


          Similarly, Jackson did not object to the prosecutor' s argument that " trying to concoct a

scenario where the defendant did not commit this crime would be as unrealistic as trying to concoct

a scenario where            I   am not an    attorney."      RP ( June 6, 2013)        at   567.       The prosecutor merely stated

that Jackson' s theory was not credible, without referencing the burden of proof. Because Jackson

cannot show that the prosecutor' s comment was incurable, Jackson has waived the error. We reject

Jackson' s claims of prosecutorial misconduct concerning the State' s burden.

          D.           Cumulative Error


          The cumulative effect of repetitive prejudicial prosecutorial misconduct may be so flagrant

that no       instruction       or series of      instructions     can erase   their   combined prejudicial effect.              State v.


Walker, 164 Wn. App. 724, 737, 265 P. 3d 191 ( 2011). However, this is not such a case. The three



                                                                      17
45115 -8 -II



errors Jackson complains of were minor in the full context of the prosecution' s closing argument.

The prosecutor' s argument hewed closely to the elements of the crime and repeatedly admonished

the jury to obey the instructions and only to convict Jackson if it was convinced beyond a
reasonable doubt of his guilt. As a whole, the prosecutor' s improper comments did not reflect a

flagrant and ill-intentioned attempt to sway the jury using emotion or personal attacks, but were

mere fleeting misstatements that do not entitle Jackson to relief. We find no cumulative error.

V.      INEFFECTIVE ASSISTANCE OF COUNSEL


        Jackson argues that his counsel was ineffective for failing to adequately raise the

Confrontation Clause issue in     relation   to the   nurse' s and social worker' s statements.      The State


argues that Jackson' s counsel was not ineffective because the Confrontation Clause issue was

without merit. We agree with the State.

        To establish ineffective assistance of counsel, the defendant must prove both that ( 1) the

            s performance was    deficient   and (   2) the   deficiency   prejudiced   the defendant.   State v.
attorney'


Kyllo, 166 Wn.2d 856, 862, 215 P. 3d 177 ( 2009) (            citing Strickland v. Washington, 466 U.S 668,

687, 104 S. Ct. 2052, 80 L. Ed 2d 674 ( 1984);           State v. Hendrickson, 129 Wn.2d 61, 77 -78, 917

P. 2d 563 ( 1996)).   An attorney' s performance is deficient if it falls " below an objective standard

of reasonableness     based   on consideration of all         the   circumstances."   State v. McFarland, 127


Wn.2d 322, 334 -35,      899 P. 2d 1251 ( 1995).          There is a strong presumption that counsel' s

performance was reasonable. Kyllo, 166 Wn.2d at 862.




                                                         18
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        Ineffective assistance of counsel is a mixed question of law and fact that we review de

novo.   State   v.   Sutherby,   165 Wn.2d 870, 883, 204 P. 3d 916 ( 2009).              Ineffective assistance of


counsel may be analyzed for the first time on appeal if the defendant can show a manifest

constitutional error. McFarland, 127 Wn.2d at 334; RAP 2. 5( a)( 3).

        As discussed above, the nurse' s and social worker' s statements were not testimonial and


were not subject      to the Confrontation Clause.         Therefore, Jackson' s trial counsel did not err by

failing to object more strongly on the Confrontation Clause issue. Expanding on the argument or

renewing the objection would have been futile. Jackson fails to show deficiency and we reject his

ineffective assistance of counsel argument without reaching the prejudice prong.

VI.     COSTS


        Jackson argues, and the State concedes, that the trial court exceeded its authority by

requiring Jackson to pay for the domestic violence assessment and to contribute to the expert

witness fund and the special assault unit. In addition, Jackson argues that the trial court exceeded

                                                                          his                               Jackson
its authority    by   requiring Jackson to pay for the          cost of         court- appointed counsel.




further argues that the trial court violated Jackson' s right to counsel by ordering him to pay counsel

costs without inquiring into whether he had the present or future ability to pay. The State argues

that the trial court properly imposed counsel costs on Jackson under the recoupment statute.

         We     agree with   the State   on all cost   issues. We accept the State' s concession and remand


to vacate the domestic violence assessment, expert witness fund, and special assault unit costs.

However, we affirm the trial court' s imposition of counsel costs.




7 As Jackson points out, these costs were improperly imposed because Jackson was not convicted
of a crime of domestic violence, Jackson did not use an expert witness, and no statute authorizes
the court to require Jackson to pay the Kitsap County special assault unit.      The costs were
improperly imposed.
                                                           19
45115 -8 - II



         A.            Authority to Impose Counsel Costs

         RCW 10. 01. 160( 1) permits a court to require a defendant to pay costs. These costs " shall

be limited to expenses specially incurred by the state in prosecuting the defendant" and may not

include "     expenses         inherent    in providing          a   constitutionally   guaranteed   jury   trial."   RCW


10. 01. 160( 2).       Jackson argues that the cost of court- appointed counsel is not an expense specially

incurred by the State in prosecuting the defendant, and thus the statute does not permit the trial

court to require Jackson to pay for the cost of appointed counsel.

         Jackson is wrong. As we have held in the past, the cost of court- appointed counsel is one

of   the two "'    principal expenses which the state specially incurs in prosecuting an individual

defendant. "'      Utter      v.   Dep' t ofSoc. &    Health Servs.,      140 Wn. App. 293, 309, 165 P. 3d 399 ( 2007)

 quoting Oregon          v.   Fuller, 12 Or.    App.       152, 504 P. 2d 1393, 1396 ( 1973),    aff'd, 417 U.S. 40, 94 S.

Ct. 2116, 40 L. Ed. 2d 642 ( 1974)) (                 emphasis added) (      internal   quotations omitted).   Because the


cost of Jackson' s appointed counsel is an expense specially incurred by the State, the plain

language of RCW 10. 01. 160 allows the court to impose the cost of appointed counsel on Jackson.

We reject Jackson' s statutory argument.

         B.            Ability to Pay

         Jackson argues that the trial court unconstitutionally chilled his right to counsel by

requiring him to pay for the                  costs   of   his   court- appointed   counsel.    We review a claim of a


constitutional error de novo. State v. Edwards, 171 Wn. App. 379, 387, 294 P. 3d 708 ( 2012).

         The government may not " chill the assertion of constitutional rights by penalizing those

who choose        to   exercise      them."   United States v. Jackson, 390 U. S. 570, 581, 88 S. Ct. 1209, 20 L.

Ed. 2d 138 ( 1968).            On the other hand, the Constitution does not mandate that indigent defendants

must "remain forever immune from any obligation to shoulder the expenses of their legal defense,


                                                                     20
45115 -8 -II



even when         they   are able      to pay   without   hardship." Fuller v. Oregon, 417 U.S. 40, 53 -54, 94 S. Ct.

2116, 40 L. Ed. 2d 642 ( 1974).                  It is constitutional for the state to recoup costs from defendants so

long      as    the   recoupment         statute   properly balances these         considerations.    This means that the


recoupment statute must be " tailored to impose an obligation only upon those with a foreseeable

ability to meet it, and to enforce that obligation only against those who actually become able to

meet      it   without   hardship."       Fuller, 417 U.S. at 54.


               An example of a statute that meets these requirements is the Oregon recoupment statute,

OR. REV. STAT. § 135. 050( 1)( d) ( 2012).                  That statute imposes repayment requirements only upon

a convicted           defendant       who "   is or may be   able    to pay them."     OR. REV. STAT. § 161. 665( 1), (    4)


 2011).        It requires the sentencing court to " take account of the financial resources of the defendant

and    the     nature    of the   burden that      payment of costs will         impose."   OR. REV. STAT. § 161. 665( 4).


The defendant may not be required to repay costs if it appears at the time of sentencing that " there

is   no   likelihood that         a   defendant'   s   indigency    will end."    Fuller, 504 P. 2d   at   1397.   The statute


further allows a defendant to petition the sentencing court for remission ofhis payment obligations.

OR. REV. STAT. § 161. 665( 5).                   The United States. Supreme Court approved of this statute, noting

that it is " clearly directed only at those convicted defendants who are indigent at the time of the

criminal proceedings against them but who subsequently gain the ability to pay the expenses of

legal     representation."            Fuller, 417 U. S. at 46.


               Washington has a very             similar statute,   RCW 10. 01. 160. That statute also applies only to


convicted        defendants. RCW 10. 01. 160( 1).             It imposes payment requirements only if the defendant

 is    or will    be   able   to pay them." RCW 10. 01. 160( 3).          The statute also requires the sentencing court

to "   take account of the financial resources of the defendant and the nature of the burden that

payment of costs will                 impose."     RCW 10. 01. 160( 3).     The statute permits a defendant to petition



                                                                     21
45115 -8 -II




the sentencing court for remission, and in cases of manifest hardship, permits the court to " remit

all or part of the amount due in costs, or modify the method of payment under RCW 10. 01. 170."

RCW 10. 01. 160( 4).        Our Supreme Court has held that these statutory features satisfy the test

delineated in Fuller. State v. Barklind, 87 Wn.2d 814, 818, 557 P. 2d 314 ( 1976).

         The main difference between the Washington statute and the Oregon statute is that the

Washington statute does not require the court to make formal and specific findings on the

defendant' s ability to pay at the time of sentencing, but rather at the time of enforcement. State v.

Blank, 131 Wn.2d 230, 238 -242, 930 P. 2d 1213 ( 1997). Jackson argues that this distinction makes


RCW 10. 01. 160 constitutionally deficient.                  Our Supreme Court has consistently rejected this

argument. Blank, 131 Wn.2d at 242; State v. Curry, 118 Wn.2d 911, 916, 829 P. 2d 166 ( 1992).

Other state and federal courts interpreting similar recoupment provisions have rejected this

argument as well.     See,   e. g.   United States    v.   Hutchings, 757 F. 2d 11, 14 -15 ( 2d Cir. 1985); Alaska


v.   Albert, 899 P. 2d 103, 112 ( Alaska 1995); North Dakota v. Kottenbroch, 319 N.W.2d 465, 473


 N. D. 1982); Ohio     v.   McLean, 87 Ohio          App.    3d 392, 622 N.E. 2d 402, 404 ( 1993); Basaldua v.


State, 558 S. W.2d 2, 6 -7 ( Tex. Ct. App. 1977).

          The insight that these courts relied on, and that Jackson' s analysis overlooks, is that the


Supreme Court did not hold that every single element of Oregon' s statute was constitutionally

required. That is, the features of the Oregon recoupment statute were sufficient, but not necessary.

What matters is that " the defendant is entitled to free counsel when he needs it, and the fact that

he knows he may have to repay the costs of the services does not affect his eligibility to obtain

counsel."      Blank, 131   Wn.2d     at   236;   see also   Fuller, 417 U. S.   at   53.




                                                               22
45115 -8 -II



             This case is no different from the challenges to our recoupment statute our Supreme Court

previously         rejected.      Jackson    received counsel "` when                   he   need[ ed]   it' —that   is, during every stage

of   the   criminal proceedings against                    him."   Fuller, 417 U.S. at 53 ( quoting Fuller, 12 Or. App. at

158 -59).         And there is nothing on the record to suggest that Jackson' s knowledge " that he might

someday be           required to      repay the            costs   of   these      services ...      affects his eligibility to obtain

counsel."          Fuller, 417 U. S.       at   53.        Like the Oregon statute, our recoupment statute is tailored to


 insure that only those who actually become capable of repaying the State will ever be obliged to
do   so."        Fuller, 417 U.S.     at   53.    This is because the court must determine whether the defendant

                                                                                        is imposed for                         Blank, 131
      pay " before           enforced collection or                     sanction                            nonpayment."
can                                                             any


Wn.2d        at   242.   That is, by interposing a formal inquiry and opportunity to be heard before the

defendant is actually required to pay, RCW 10. 01. 160 employs adequate safeguards to avoid

chilling the         right   to   counsel.       Blank, 131 Wn.2d                  at   245.   The statute is sufficiently tailored to

 enforce [ a repayment] obligation only against those who actually become able to meet it without

hardship," and Jackson' s constitutional challenge fails. Fuller, 417 U. S. at 54 ( emphasis added).

The costs order does not constitute a manifest constitutional error and should not be considered

here. RAP 2. 5( a)( 3).


             Finally,    Jackson, citing RPC 1. 5( b),                   raises a cursory equal protection argument in a

footnote —he          argues that it is unfairly discriminatory that an indigent defendant is not apprised of

fees and costs prior to appointment of counsel, when ordinarily counsel must make such disclosure

in   advance.         We do not reach this claim because it is inadequately briefed and unsupported by

citation         to the record or authority.               See Bohn      v.   Cody,      119 Wn.2d 357, 368, 832 P. 2d 71 ( 1992);


Cowiche Canyon                 Conservancy            v.    Bosley,     118 Wn.2d 801,             809, 828 P. 2d 549 ( 1992); RAP


 10. 3(    a)(   6). See also Blank, 131 Wn.2d at 245 ( equal protection argument that failed to articulate



                                                                              23
45115 -8 -II




which   level   of   scrutiny   applied   was "   inadequately   presented ").   The recoupment statute is


constitutional.




        We accept the State' s concession and remand with instructions to vacate the domestic

violence assessment costs and the contributions to the expert witness fund and special assault unit.

In all other respects, 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 pursuant to RCW 2. 06. 040, it is

so ordered.




We concur:




                                Ac.I




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