                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                           July 26, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                No. 46903-1-II

                                Respondent,

         v.

 CHRYSTAL ROSE COX,                                           UNPUBLISHED OPINION

                                Appellant.

       LEE, J. — Chrystal Rose Cox was convicted of felony driving under the influence of

intoxicants under former RCW 46.61.502(6)(b)(ii) (2008). On appeal, Cox challenges the trial

court’s denial of her motions to suppress (1) evidence resulting from the initial blood draw and the

second blood test, arguing that the search warrants’ supporting affidavits were insufficient to

establish probable cause; and (2) evidence of her refusal to submit to a breath test, arguing that it

violates her rights against self-incrimination and warrantless searches. Cox also argues that (3)

she was prejudiced by the prosecutor’s misconduct; (4) the trial court erred in denying her motion

for a new trial based on the alleged prosecutorial misconduct; and (5) the sentencing court erred

in calculating her offender score, or in the alternative, her attorney was ineffective for failing to

object to the calculation.
No. 46903-1-II


       We hold that the trial court did not abuse its discretion in denying her motions to suppress

the evidence relating to (1) her initial blood draw and her second blood test because the affidavit

supported a probable cause finding; and (2) her refusal to submit to a breath test because such

evidence is nontestimonial and explicitly allowed under Washington law. We further hold that

Cox failed to establish that she was prejudiced by the alleged prosecutorial misconduct and,

therefore, her claims of (3) prosecutorial misconduct and (4) denial of a motion for a new trial fail.

Finally, we hold that (5) the sentencing court did not err in calculating her offender score because

our Supreme Court in State v. Sandholm, 184 Wn.2d 726, 364 P.3d 87 (2015), considered and

rejected the same argument Cox now raises. Consequently, we affirm.

                                               FACTS

A.     FACTUAL HISTORY

       On March 31, 2013, Washington State Patrol Trooper Jeffery Heath observed Cox’s

vehicle traveling “at a very high rate of speed,” and used his radar gun to determine that she was

traveling at 83   MPH   in a zone with a speed limit posted at 60   MPH   miles per hour. 4 Verbatim

Report of Proceedings (VRP) at 301, 303; 1 VRP at 15; Clerk’s Papers (CP) at 2. Cox did not

respond immediately to Trooper Heath’s emergency lights, but she eventually stopped.

       After stopping, Trooper Heath spoke to Cox through the passenger side window of Cox’s

car. Cox was the only person in the car. When Cox rolled the window down, Trooper Heath

detected “a pretty obvious odor of intoxicants coming from inside the vehicle,” and noticed Cox

had bloodshot watery eyes and slurred speech. 4 VRP at 304-05; 1 VRP at 16-17. Trooper Heath

asked Cox to step out of the car and to perform field sobriety tests (FSTs), but did not tell her that




                                                  2
No. 46903-1-II


they were voluntary. A disagreement between Trooper Heath and Cox ensued, which resulted in

Trooper Heath calling a second Washington State Patrol Trooper, Ben Taylor, to the scene.

       Cox agreed to perform the FSTs for Trooper Taylor. Trooper Taylor modified the first of

the three FSTs because Cox was very agitated, they were on an overpass, and he “saw what [he]

needed” as he was conducting them.1 4 VRP at 369. Based on Cox’s performance on the FSTs,

her demeanor, and the odors he smelled, Trooper Taylor arrested Cox and turned her over to

Trooper Heath.

       Trooper Heath advised Cox of her right to take a breath test, which Cox refused. Trooper

Heath then applied for a search warrant for Cox’s blood to be drawn and tested. In the affidavit in

support of the warrant, Trooper Heath declared that his radar reported Cox traveling at 83 MPH in

a 60 MPH speed zone, Cox was slow to respond to his emergency lights, Cox was argumentative,

Cox had a strong odor of intoxicants about her person, Cox was alone in the car, Cox’s speech was

slurred, and Cox’s eyes were watery and bloodshot. Trooper Heath also wrote, “Taylor contacted

Cox and explained how the process works. At this time, Cox advised she wanted Taylor to

administer the field sobriety tests. After completing the field sobriety tests Cox was arrested for

DUI [driving under the influence.]” CP at 76. Trooper Heath did not note that one of the FSTs

performed was not conducted according to the troopers’ training. Finally, a dash cam recording

of the stop showed that Trooper Heath did not tell Cox the FSTs were voluntary. The warrant was

granted, and Cox was taken to the hospital for the blood draw.




1
  The modification, Trooper Taylor later admitted, “would probably decrease the validity of the
tests because that’s not how it is trained.” 1 VRP at 100.



                                                3
No. 46903-1-II


         Cox’s blood was tested on two different occasions. Cox’s blood was initially tested shortly

after it was drawn, but it needed to be retested because State v. Martines2 was published and

required a second warrant be obtained for the blood to be tested.

         Cox was charged by amended information on October 31, 2014, in Clark County for felony

driving while under the influence of intoxicants.3 Prior to trial, Cox moved to suppress evidence

seized pursuant to the search warrants.

B.       MOTIONS TO SUPPRESS

         Cox sought to suppress evidence obtained from the blood draw, arguing, as relevant to this

appeal, that the affidavit in support of the blood draw was conclusory and that the warrant for the

blood draw did not authorize the blood to be tested. Cox also sought to suppress evidence of her

refusal to submit to a breath test, arguing that it was evidence of her refusal to submit to a

warrantless search.

         A suppression hearing was held, and the trial court found there was probable cause to arrest

Cox based upon the FSTs conducted by Trooper Taylor and based upon Trooper Heath’s

observations of the odor of intoxicants, Cox’s bloodshot and watery eyes, and her slurred speech.

However, the trial court also found that the evidence seized pursuant to the search warrant should

be suppressed because the issuing magistrate believed that Trooper Heath had completed the FSTs

and made the arrest. Finally, the trial court found that Cox’s refusal to take the breath test was

admissible.



2
    182 Wn. App. 519, 331 P.3d 105 (2014), rev’d, 184 Wn.2d 83, 355 P.3d 1111 (2015).
3
    Former RCW 46.61.502(6)(b)(ii) (2008).



                                                  4
No. 46903-1-II


       The State moved the trial court to reconsider its suppression of evidence seized through

Trooper Heath’s affidavit and resulting search warrant. Upon reconsideration, the trial court

changed its previous finding:

       And I believe I need to correct myself. I did state that it was a miscommunication
       and then I suppressed the entire document. I believe that was incorrect. I needed
       to only suppress those statements that were miscommunicated and then determine
       whether or not there still was probable cause that still existed.

              ....

               And what the Court found at the time regarding Trooper Heath’s
       involvement—and there were a couple of portions of the probable cause affidavit
       itself. Page nine on this document says, “[Heath] explained to Cox that based
       upon—or based on his observations and the odor of intoxicants, he believed she
       had been consuming alcohol this evening and asked Cox to submit to voluntary
       standardized field sobriety tests.” That was a misstatement or a miscommunication
       because he did not tell Ms. Cox that it was voluntary, according to the tape.

               The other issue that the Court had with respect to this document at page 10,
       “Within a few minutes, Trooper Taylor, No. 1196, arrived on scene. [Heath]
       explained to Taylor the reason for the stop and the situation at hand. Taylor
       contacted Cox and explained how the process works. At this time Cox advised she
       wanted Taylor to administer the field sobriety test. After completing the field
       sobriety test, Cox was arrested for DUI. Cox was handcuffed, searched, and placed
       in the back of [Heath’s] vehicle.”

                When I read this in conjunction with [Heath’s] answers, initially I was not—
       or I felt the officer had not been forthright or had miscommunicated information to
       the magistrate or Judge Rulli at the time. And I have not looked at Judge Rulli’s—
       or the telephonic recording of Judge Rulli and Trooper Heath. I merely looked at
       the probable cause affidavit, along with the answers to [defense counsel’s]
       questions.

              ....

              Therefore, this Court will correct itself in the interest of justice. The
       probable cause affidavit will be admissible if I take out the misstatement or
       miscommunication by Trooper Heath. The remaining portions of the probable
       cause affidavit do support the search for the evidence as indicated.




                                                5
No. 46903-1-II


                 ....

                 . . . Because the affidavit was valid, the results of the blood draw will then
         be valid.

2 VRP at 152-54, 156.

         As a result of the trial court’s finding that Trooper Heath’s excised affidavit supported

probable cause for the first warrant, Cox then moved the trial court to consider the suppression of

the initial blood test under Martines.4 The trial court denied Cox’s reconsideration motion, but

allowed Cox to challenge the second blood test.5

         Cox challenged the results of the second blood test by arguing, among other things, that

the supporting affidavit did not establish probable cause because it relied on documents purported

to be attached but were never actually attached, and once those portions were excised from the

document, probable cause no longer existed. The trial court disagreed, finding that after excising

the portions that were unsupported, probable cause still existed based on Trooper Heath’s

statements of his observations and interviews, which created the “causal connection between

probable cause to the testing of this blood.” 3 VRP at 243. The trial court also found:

         The officer, as I indicated previously, stated that he’s charged with the
         responsibility for the investigation. He states that he’s investigating a DUI under
         [RCW] 46.61.502; that the blood—the blood was previously drawn pursuant to a
         valid search warrant. Now we’re testing the blood on this matter.

                  I’m going to go ahead and find that there is a causal connection between the
         first affidavit of probable cause to draw the blood and this affidavit to test the blood.



4
    182 Wn. App. 519.
5
  The toxicology report for the second blood test showed Cox’s blood tested positive for ethanol
(0.10 grams per 100 milliliters), methamphetamine (0.50 milligrams per liter), and amphetamine
(0.06 milligrams per liter).


                                                    6
No. 46903-1-II


3 VRP at 245.

C.        TRIAL AND SENTENCING

          At the end of the State’s rebuttal argument in closing, the following exchange took place:

                 [THE STATE]: He [Cox’s attorney] talked about competence of that blood
          test. You’ll get this back there with you, and it states on it there’s a 99.7 percent
          competence level. Most reasonable explanation is usually the correct one.

                 [DEFENSE COUNSEL]: Your Honor, I have to object. This argument is
          lowering the State’s burden.

                 THE COURT: So noted. It’s beyond a reasonable doubt. They have that
          information in front of them. You may argue beyond a reasonable doubt, Counsel.

                 [THE STATE]: He said you’ll get that instruction that says a reasonable
          doubt is one for which a reason exists and may arise from the evidence or lack of
          evidence. But if from such consideration you have an abiding belief in the truth of
          the charge, you’re satisfied beyond a reasonable doubt. You’ve seen all the
          evidence. I say you find the defendant guilty of felony DUI. Thank you.

6 VRP at 611.

          The jury asked three questions during deliberations. The three questions were, “Does blood

alcohol level above .08 mg/L constitute under [the] influence to [an] appreciable degree?”; “Does

the law state that having a blood alcholol [sic] level of .08 mg/L or above legally fit the definition

of ‘under the influence or or affected by the intoxicating liquor or drug?’”; and “May juror #3 send

text message to children (or call?)”. CP at 172; 174, 176. After deliberations, the jury found Cox

guilty.     Following the guilty verdict, Cox argued prosecutorial misconduct and moved

unsuccessfully for a new trial.

          At sentencing, both parties signed a declaration of criminal history that calculated Cox’s

offender score as 3: A 2004 vehicular assault conviction-2 points, and a 2008 possession of a




                                                   7
No. 46903-1-II


controlled substance conviction-1 point. Cox was sentenced within the standard range. Cox

appeals.

                                            ANALYSIS

A.     AFFIDAVIT IN SUPPORT OF A SEARCH WARRANT

       Cox argues the trial court erred in denying her motions to suppress evidence obtained as a

result of the initial blood draw and as a result of the second blood test. Cox argues that both the

affidavits of probable cause for the blood draw and the second blood test failed to establish

probable cause. We hold that the trial court did not err in determining that the affidavits, after the

appropriate portions were excised, were sufficient to establish probable cause for the blood draw

and the retesting of the drawn blood.

       “The Fourth Amendment to the United States Constitution provides that warrants may be

issued only upon a showing of probable cause, supported by oath or affirmation, and particularly

describing the place to be searched, and the persons or things to be seized.” Martines, 184 Wn.2d

at 90 (internal quotations omitted). “Probable cause exists if the affidavit in support of the warrant

sets forth facts and circumstances sufficient to establish a reasonable inference that the defendant

is probably involved in criminal activity and that evidence of the crime can be found at the place

to be searched.” State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). Thus, probable cause

“‘requires a nexus between criminal activity and the item to be seized, and also a nexus between

the item to be seized and the place to be searched.’” Id. at 140 (quoting State v. Goble, 88 Wn.

App. 503, 509, 945 P.2d 263 (1997)).

       Our review of the issuance of a warrant is limited to the four corners of the affidavit. State

v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658 (2008). And, we view the affidavit in a commonsense



                                                  8
No. 46903-1-II


manner rather than hypertechnically. State v. Chenoweth, 160 Wn.2d 454, 477, 158 P.3d 595

(2007). All doubts are resolved in favor of the validity of the warrant. State v. Maddox, 152 Wn.2d

499, 509, 98 P.3d 1199 (2004).         We afford great deference to the issuing magistrate’s

determination of probable cause. Id. at 509; Chenoweth, 160 Wn.2d at 477. However, while we

defer to the magistrate’s determination, the “trial court’s assessment of probable cause is a legal

conclusion we review de novo.” Neth, 165 Wn.2d at 182.

       1.      Blood Draw

       Cox argues the trial court erred when it found the remaining portions of Trooper Heath’s

affidavit, after excising the “misrespresentations,” supported probable cause for issuance of the

warrant for a blood draw. Br. of Appellant at 17. We disagree.

       In Martines, 184 Wn.2d at 90-91, 94, our Supreme Court considered whether probable

cause existed to believe Martines was under the influence of drugs, as opposed to just alcohol, and

whether a warrant authorizing a blood draw necessarily authorizes testing of that sample for

evidence of the suspected crime. In Martines,

       The trooper included the following observations in his affidavit of probable cause:
       (1) Martines had a “strong odor of alcohol coming from his breath,” (2) “[Martines]
       said he had one Blue Moon [beer],” (3) Martines was observed throwing a bag into
       the bushes containing a six-pack container of beer with one unopened beer bottle,
       which the trooper later recovered, (4) Martines had “blood shot watery eyes,” (5)
       Martines had “a flush face,” (6) “[Martines] walked in a slow and deliberate
       manner,” (7) “[Martines] seemed off balance and struck the door frame as he
       entered the [patrol] car.”

184 Wn.2d at 91 (quoting the record). Our Supreme Court held that the first three observations

related directly to alcohol intoxication and the last four observations supported a probable cause

finding that Martines was under the influence of intoxicants, whether those intoxicants were




                                                9
No. 46903-1-II


alcohol or drugs. Id. at 92. “Further,” the Supreme Court said, “the trooper may have believed

Martines’s impairment was caused, in part, by drugs, since Martines stated he had only ‘one’ beer.

Lastly, the trooper’s affidavit stated his special experience and expertise in detecting the effects of

alcohol and drug impairment.” Id.

       Here, the trial court struck Trooper Heath’s statement that he “asked Cox to submit to

voluntary standardized field sobriety tests,” from the affidavit because the video of the stop makes

clear that Trooper Heath did not tell Cox that the FSTs were voluntary. 2 VRP at 153; CP at 75.

The remainder of Trooper Heath’s affidavit included the following observations: (1) Cox was

alone in the vehicle with “a strong odor of intoxicants coming from inside the vehicle”; (2) Cox

was traveling 83   MPH   in a 60   MPH   zone; (3) Cox was “slow to respond” to Trooper Heath’s

emergency lights; (4) Cox’s “speech was slurred”; (5) Cox “had bloodshot and watery eyes”; (6)

Cox said she had not been drinking; (7) Cox advised she wanted Trooper Taylor to administer the

field sobriety tests and was arrested for driving under the influence after completing the FSTs; and

(8) Cox would not consent to a breath test. CP at 75-76. Lastly, Trooper Heath’s affidavit listed

his special experience and expertise in detecting the effects of alcohol and drug impairment. CP

at 74-75.

       Just as our Supreme Court in Martines held that a probable cause finding was supported

by the trooper’s seven listed observations, the defendant’s statements to the trooper, and the

trooper’s special experience in detecting intoxication, we similarly hold that Trooper Heath’s

observations, Cox’s statements, and Trooper Heath’s expertise, were sufficient to establish

probable cause to believe Cox’s blood would contain evidence of her intoxication. Therefore, the

trial court did not err in finding that even when the challenged portions of Trooper Heath’s affidavit



                                                  10
No. 46903-1-II


were excised, the remainder of Trooper Heath’s affidavit supported a finding of probable cause to

issue a warrant for Cox’s blood to be drawn.

         2.      Second Blood Test

         Cox next argues that the affidavit for probable cause in support of the search warrant for

the second testing of Cox’s blood did not establish probable cause. However, as our Supreme

Court in Martines held, “a warrant authorizing extraction of a blood sample necessarily authorizes

testing of that sample for evidence of the suspected crime.” 184 Wn.2d at 94.6 As explained

above, the excised version Trooper Heath’s affidavit for a warrant to draw Cox’s blood established

probable cause that Cox was driving while under the influence. The warrant was signed, pursuant

to that affidavit, authorizing the blood draw. Therefore, we hold that the retesting of Cox’s blood

was supported by the first warrant and that warrant was supported by probable cause as set forth

in Trooper Heath’s redacted affidavit for a blood draw.

B.       EVIDENCE OF BREATH TEST REFUSAL

         Cox argues the trial court erred in admitting evidence of her refusal to submit to a breath

test. Br. of Appellant at 22. Specifically, Cox argues that a breath test is “a warrantless search,”

and that “[a] criminal defendant’s assertion of her constitutional right to refuse . . . [a] warrantless

search . . . cannot be used as evidence of her guilt.” Br. of Appellant at 22. We disagree because

Cox’s refusal was nontestimonial, and Washington law explicitly allows the refusal of a breath test

to be admitted as evidence to infer guilt.




6
    And WAC 448-14-020(1)(a)(iii) authorizes duplicate testing of a blood sample.


                                                  11
No. 46903-1-II


        The trial court has broad discretion to admit or exclude evidence, and we review the trial

court’s decisions for an abuse of discretion. State v. Lord, 161 Wn.2d 276, 294, 165 P.3d 1251

(2007). A trial court abuses its discretion when its decision is based on untenable grounds or

untenable reasons. Id. at 283-84.

        “A refusal to submit to sobriety tests is not a statement communicating testimonial

evidence; rather, the refusal ‘is best described as conduct indicating a consciousness of guilt.’”

City of Seattle v. Stalsbroten, 138 Wn.2d 227, 234, 978 P.2d 1059 (1999) (quoting Newhouse v.

Misterly, 415 F.2d 514, 518 (9th Cir. 1969)). The fact that Cox refused a breath test rather than a

FST is of no consequence because, as our Supreme Court held, “The act of refusal ‘merely exposes

[the defendant] to the drawing of inferences, just as does any other act.’” Id. And, that while “‘one

might infer from the refusal that it is an effort to conceal intoxication,’” the “‘evidence of the

refusal and the words of refusal, standing alone, does not constitute testimonial evidence or any

thought, reason or excuse for the refusal.’” Id. at 234-35 (quoting Welch v. District Court of Vt.,

461 F. Supp. 592, 595 (D. Vt. 1978), aff’d, 594 F.2d 903 (1979)). Therefore, Cox’s argument that

her constitutional right to refuse a warrantless search prevents evidence of her refusal to take the

breath test from being used against her fails.

        Also, evidence of Cox’s refusal to submit to a breath test is statutorily admissible. RCW

46.61.517 provides, “The refusal of a person to submit to a test of the alcohol or drug concentration

in the person’s blood or breath under RCW 46.20.308 is admissible into evidence at a subsequent

criminal trial.” And RCW 46.20.308(1) states, “Any person who operates a motor vehicle within

this state is deemed to have given consent . . . to a test or tests of his or her breath for the purpose

of determining the alcohol concentration” if the person is arrested and the arresting officer believes



                                                  12
No. 46903-1-II


the person was driving under the influence of alcohol or drugs. In considering whether RCW

46.61.517 allowed a defendant’s refusal to take a breath test to be admitted as evidence of guilt,

our Supreme Court concluded, “The legislative determination that refusal evidence is relevant and

fully admissible to infer guilt or innocence thus now seems clear.” State v. Long, 113 Wn.2d 266,

268, 272, 778 P.2d 1027 (1989) (citing former RCW 46.61.517 (LAWS OF 1987, ch. 373, § 5)); see

State v. Cohen, 125 Wn. App. 220, 223-24, 104 P.3d 70 (2005) (relying on the Long court’s

conclusion that evidence of a defendant’s refusal to take a breath test was admissible to infer guilt).

Therefore, Cox’s argument that the trial court erred in admitting evidence of her refusal to take a

breath test fails.

        In support of her argument, Cox cites to two cases: State v. Gauthier, 174 Wn. App. 257,

264, 298 P.3d 126 (2013) and State v. Burke, 163 Wn.2d 204, 181 P.3d 1 (2008), for the basic

proposition that the Fifth Amendment protects a defendant’s right to silence. Aside from the

substantially dissimilar factual scenarios presented in Gauthier and Burke,7 Cox’s reliance on them

is misplaced because evidence of her refusal to take a breath test is not testimonial evidence and

nontestimonial evidence is not protected by the Fifth Amendment. Stalsbroten, 138 Wn.2d at 232.

C.      PROSECUTORIAL MISCONDUCT

        Cox argues the State committed prosecutorial misconduct by minimizing its burden of

proof and that she was prejudiced such that reversal is required. Again, we disagree.




7
 Gauthier, 174 Wn. App. 257, deals with a warrantless DNA test in a conviction for second
degree rape. Burke, 163 Wn.2d 204, deals with a defendant’s refusal to speak to police used as
evidence that the defendant was guilty of third degree rape of a child.



                                                  13
No. 46903-1-II


       To prevail on a claim of prosecutorial misconduct, Cox must show that the prosecutor’s

conduct was both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653

(2012). When analyzing prejudice, the conduct is considered in the context of the total argument,

the issues in the case, the evidence, and the instructions given to the jury. State v. Yates, 161

Wn.2d 714, 774, 168 P.3d 359 (2007), cert. denied, 554 U.S. 922 (2008). The defendant

establishes prejudice when the misconduct had a substantial likelihood of affecting the verdict.

Emery, 174 Wn.2d at 760.

       Where an objection was made, a defendant must “show that the prosecutor’s misconduct

resulted in prejudice that had a substantial likelihood of affecting the jury’s verdict.” Id. at 760.

Where a trial court issues a curative instruction, this court presumes the jury follows the court’s

instructions. State v. Anderson, 153 Wn. App. 417, 428, 220 P.3d 1273 (2009), review denied,

170 Wn.2d 1002 (2010).

       Cox attempts to establish prejudice by arguing that the case against her was not

overwhelming and that the jury’s submission of two questions regarding the results of the blood

test demonstrates the insufficiency of the trial court’s curative instruction. But there was no

prejudice because the trial court issued a proper curative instruction and no other alleged

misconduct followed.

       Cox objected during the State’s rebuttal argument that the State was misstating its burden

of proof.8 6 VRP at 611. The trial court responded by stating that the burden of proof was “beyond

a reasonable doubt,” that the jury had that information in front of them, and directed the State to



8
  No other part of the State’s closing argument or rebuttal is alleged to be prejudicial or appears
to have misstated the burden of proof.


                                                 14
No. 46903-1-II


argue in a manner consistent with that burden. 6 VRP at 611. The State then focused the jury’s

attention to the reasonable doubt jury instruction and recited language from that instruction before

ending its rebuttal argument. We presume that the jury followed the trial court’s instruction that

the burden of proof was beyond a reasonable doubt. Anderson, 153 Wn. App. at 428.

       Cox’s argument that the case against her was not overwhelming and thereby prejudice is

magnified or established is unavailing. The evidence showed that: Trooper Heath observed Cox

driving 83 MPH in a 60 MPH zone; Cox did not immediately respond to Trooper Heath’s emergency

lights; Trooper Heath detected an obvious odor of intoxicants inside the car where Cox was the

only occupant; Trooper Heath observed that Cox had bloodshot watery eyes and slurred speech;

Trooper Taylor decided to arrest Cox based on his observation of her performance on the FSTs,

the odors he smelled, and Cox’s demeanor; Cox refused to take a breath test; and the second blood

test showed Cox’s blood tested positive for ethanol (0.10 grams per 100 milliliters),

methamphetamine (0.50 milligrams per liter), and amphetamine (0.06 milligrams per liter). In

light of the evidence presented, Cox’s argument fails.

       Cox’s argument that the jury’s three questions demonstrates that the prosecutor’s

comments had a substantial likelihood of affecting the verdict despite the trial court’s curative

instruction also fails. The three jury questions do not show confusion on the part of the jury

regarding the State’s burden of proof. Instead, the jury questions show confusion of whether a

blood alcohol level of .08mg/L met the legal definition for “under the influence.” CP at 174.

Therefore, we hold that Cox’s claim of misconduct by the prosecutor fails because she fails to

establish prejudice.




                                                15
No. 46903-1-II


D.      MOTION FOR A NEW TRIAL

        Cox argues the trial court erred in denying her motion for a new trial based on the

prosecutorial misconduct claim detailed above. Because Cox’s prosecutorial misconduct claim

fails, her argument that the trial court erred in denying her motion for a new trial also fails.

        “CrR 7.5(a) provides that ‘[t]he court on motion of a defendant may grant a new trial . . .

when it affirmatively appears that a substantial right of the defendant was materially affected.’”

State v. McKenzie, 157 Wn.2d 44, 51, 134 P.3d 221 (2006). The trial court’s decision on a motion

for new trial is within the discretion of the trial court and this court reviews the trial court’s decision

for “‘a clear abuse of discretion.’” Id. (quoting State v. Wilson, 71 Wn.2d 895, 899, 431 P.2d 221

(1967)). “An abuse of discretion will be found ‘only when no reasonable judge would have

reached the same conclusion.’” Id. at 52 (quoting State v. Bourgeois, 133 Wn.2d 389, 406, 945

P.2d 1120 (1997)).

        When a motion for a new trial under CrR 7.5(a) is based on a claim of prosecutorial

misconduct, the defendant “‘bears the burden of establishing the impropriety of the prosecuting

attorney’s comments and their prejudicial effect.’” Id. (quoting State v. Brown, 132 Wn.2d 529,

561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998)). Because we hold that Cox fails to

show she was prejudiced by the alleged prosecutorial misconduct, we hold that the trial court did

not abuse its discretion in denying her motion for a new trial.




                                                    16
No. 46903-1-II


E.     CALCULATION OF OFFENDER SCORE

       Cox argues that the sentencing court miscalculated her offender score when it included her

prior convictions for vehicular assault and possession of a controlled substance. Cox asserts that

her prior convictions are not of the type identified under former RCW 9.94A.525(2)(e) (2011),

and, therefore, should not have been counted. We disagree.

       In State v. Sandholm, 184 Wn.2d at 730-31, our Supreme Court addressed the very

argument Cox makes before this court and held that “former subsection (2)(e) [of RCW 9.94A.525

(2008)] sets out certain additional provisions for calculating an offender score when the present

conviction is for felony DUI.” Id. at 739.9 Consequently, we hold the sentencing court did not err

in calculating Cox’s offender score by including her prior convictions for vehicular assault and

possession of a controlled substance.10

                                          CONCLUSION

       We hold that the trial court did not abuse its discretion in denying Cox’s motions to

suppress the evidence relating to the blood draw and blood test, and Cox’s refusal to submit to a

breath test. We further hold that Cox failed to show that she was prejudiced by any alleged

prosecutorial misconduct, and therefore, her claims alleging prosecutorial and error in denying her




9
  Subsection (2)(e) of former RCW 9.94A.525 (2011), which Cox was sentenced under, was
unchanged from subsection (2)(e) in former RCW 9.94A.525 (2008), which Sandholm was
sentenced under.
10
  Cox relies on State v. Morales, 168 Wn. App. 489, 278 P.3d 668 (2012) and State v. Jacob, 176
Wn. App. 351, 308 P.3d 800 (2013) for support. However, our Supreme Court in Sandholm
expressly overruled both cases that Cox relies on. Sandholm, 184 Wn.2d at 738 (“We disagree
with both Morales and Jacob and overrule them.”).



                                                17
No. 46903-1-II


motion for a new trial fail. Finally, we hold that the trial court did not err in calculating her offender

score. Thus, we affirm.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                                             Lee, J.
 We concur:



                    Worswick, P.J.




                     Melnick, J.




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