                                                                     t.T;t:InOW
                                                            COURT OrAPPEALS
                                                                 : OF WASHINGTON
                                                             SIMI:

                                                             2018 IWG -6 MI 8:30




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


THE STATE OF WASHINGTON,                  )       No. 76569-8-1
                                          )
                     Respondent,          )
                                          )       DIVISION ONE
                     v.                   )
                                          )
CARLOS DANIEL HUAMAN,                     )       UNPUBLISHED OPINION
                                          )
                     Appellant.           )       FILED: August 6, 2018
                                          )

       MANN, A.C.J. — Carlos Huaman appeals his convictions for assault in the fourth

degree—domestic violence and interfering with domestic violence reporting. He

contends that several State witnesses expressed their opinion as to his guilt and that

the deputy prosecutor committed reversible misconduct during closing argument. But

when their testimony is viewed in context, the witnesses did not express a personal

belief that Huaman was guilty. Huaman's claim of prosecutorial misconduct fails

because the challenged comments are either not misconduct or so minimally prejudicial

that there is no likelihood they affected the jury's verdict. Accordingly, we affirm.
No. 76569-8-1/2


                                           FACTS

       Shortly after midnight on October 23, 2016, the 9-1-1 operator answered a call

and heard what sounded like a commotion on the line. A woman, later identified as

Alexis Eaton, said "give me my phone right now." The operator heard a scream, and

Eaton then said, "I'm calling cops... Give me the phone! Can you put my phone

down?" At this point, the call was disconnected.

       The operator called the cell phone number back and asked,"are you having an

emergency?" Eaton replied, "Yes. I am" before the call was again disconnected.

       The 9-1-1 operator determined that Eaton was the registered owner of the cell

phone. Using signals from the cell phone, the operator also determined Eaton's

approximate location near the Swiss House Apartments in Kirkland and dispatched

officers.

       Kirkland Police Officer Charles Bussey drove to the reported location and saw

Eaton walking with her neighbor, James Slaght. Eaton flagged Bussey down, and he

got out of his patrol car to talk to her. Eaton was shaking, stammering, and appeared to

have been crying.

       Eaton identified herself and told Bussey that her ex-boyfriend, Carlos Huaman,

had broken into her apartment. She said that she had gone upstairs to her apartment to

investigate a noise when she found Huaman inside. Huaman grabbed her by the leg

and arm and threw her around the apartment. He then threw her to the ground when

she tried to call 9-1-1 and tossed her cell phone away. At this point, Huaman jumped

off the balcony and fled. Eaton went downstairs to get help from her neighbors, Slaght

and Elliot Burke.


                                          -2-
No. 76569-8-1/3



      Bussey broadcast Huaman's description to the other officers in the area. Based

on the description, Kirkland Police Officer Patrick Baxter detained Huaman, who was

riding a bicycle a short distance away. After Eaton identified Huaman, Baxter arrested

him. Bussey then brought Eaton back to her apartment, where she gave a written

statement. Officers removed the cell phone that Huaman was carrying and returned it

to Eaton.

      In her statement, Eaton confirmed that Huaman had entered her apartment

without permission. She found him in the bedroom "going through my stuff." Huaman

threw her around the apartment and then onto the floor. Eaton described the pain as

about level 8 on a scale of 1 to 10. Eaton eventually managed to escape and run

downstairs to the neighbors' apartment. Eaton and Slaght then followed Huaman, who

had fled with one of Eaton's cell phones. After catching up to Huaman, Slaght and

Huaman scuffled, and Eaton managed to snatch back her cell phone before the police

arrived.

       Bussey smelled alcohol on Eaton's breath before she gave the statement. But

he did not notice any signs of impairment, such as bloodshot, red, or watery eyes.

Eaton had "great spatial awareness" and did not fumble while retrieving identification

from her purse.

      The trial court admitted Eaton's written statement at trial.

      The State charged Huaman with burglary in the first degree—domestic violence,

assault in the fourth degree—domestic violence, and interfering with domestic violence

reporting.




                                           -3-
No. 76569-8-1/4



      At trial, Burke testified that he and his roommate Slaght lived in the apartment

below Eaton's. Eaton would occasionally visit and "hang out."

      Just after midnight on October 23, 2016, Burke heard a "scuffle upstairs," as

though something might be "slamming into the ground." A short time later, Burke heard

a knock on the door. When Slaght opened the door, Eaton burst into the apartment and

appeared to be "[p]anicked and crying."

      After stepping outside, Burke saw Huaman jump down from Eaton's balcony.

Huaman called Eaton a "dumb bitch" and exchanged "a couple of'fuck offs" with

Slaght before running off. Slaght and Eaton then pursued Huaman.

      On October 24, 2016, Detective Allan O'Neill called Eaton and informed her that

he had been assigned to the case. Several hours later, Eaton called back and

expressed concern about getting Huaman out of jail.

      Two days later, on October 26, Eaton called O'Neill and asked to meet with him

to provide an additional statement. Eaton met with O'Neill on the following day and

claimed that Huaman had permission to be in her apartment on the night of the charged

incident and that he had never assaulted her. Eaton also explained that the cell phone

officers had returned to her was Huaman's own cell phone.

       Eaton testified that she met Huaman in a shelter in 2015. The two began dating

in 2016 and became engaged in August 2016. Eaton was 19 at the time of trial.

Although the Swiss House Apartments prohibited overnight guests, Eaton
acknowledged that Huaman spent most nights in her apartment. Eaton was concerned

that she could lose the apartment if the management caught her breaking the rules.




                                           -4-
No. 76569-8-1/5



       Eaton described her relationship with Huaman as Isladomasochistic," meaning

that "[Nasically we hurt each other." Eaton maintained the relationship was "good" for

her.

       Eaton claimed that she spent the day before the charged incident visiting her

mother in Everett. While returning on the bus, Eaton sent a text to Huaman suggesting

she was cheating on him. Eaton denied that she found Huaman rummaging through

her bedroom. Rather, upon arriving at her apartment, she found Huaman had been

drinking. The two argued about the text and had sex. Eaton then decided she wanted

to drink with Huaman.

       After consuming two or three shots, Eaton went downstairs to the neighbors'

apartment for some "fresh air." When Slaght and Burke asked Eaton to share the

alcohol, Eaton went back upstairs to get the bottle. Huaman was sleeping, and Eaton

tried to wake him up to find out where the alcohol was. After Huaman awoke, Eaton

demanded the bottle. Huaman suddenly grabbed Eaton, and during the ensuing

physical struggle, Eaton claimed that she hit her head on the side of the bed when she

tried to pull herself away. Eaton denied that Huaman threw her to the floor. She

maintained that she fell to the floor when she tried to punch Huaman and missed.

       At one point, Eaton entered 9-1-1 on her cell phone and threatened to place the

call if Huaman did not quiet down. Huaman then attempted to grab the phone. After

the two fought over the phone, Eaton noted that the call had gone through. In an

attempt to prevent her from leaving, Huaman grabbed Eaton and placed her on the

couch. Eaton was eventually able to run downstairs to the neighbors' apartment. She

acknowledged telling the 9-1-1 operator that she needed help.


                                           -5-
No. 76569-8-1/6



       Eaton claimed that she was by herself when she followed Huaman. After walking

several blocks, she encountered Huaman and Slaght yelling at one another. After

rejecting Huaman's offer to go with him, Eaton started walking back to her apartment as

the police approached. Eaton denied flagging down the police and claimed that Slaght

had flagged them down, even though she begged him not to.

       Eaton suggested that she had been too intoxicated to give the written statement

to Bussey. She acknowledged that she initially gave the police a "false statement," but

insisted she was telling the truth at trial.

       The jury acquitted Huaman of the burglary charge, but found him guilty as

charged of assault in the fourth degree—domestic violence and interfering with

domestic violence reporting. The court imposed a 137-day sentence.
                                               ANALYSIS

       Huaman contends that improper opinion testimony and prosecutorial misconduct

deprived him of his constitutional right to a fair trial. He argues that State witnesses

repeatedly violated a pretrial order and invaded the province of the jury by expressing

their personal belief that he was guilty. He claims that the deputy prosecutor committed

reversible misconduct by reinforcing the improper opinion testimony during closing

argument.

Opinion on Guilt

       "Opinions on guilt are improper whether made directly or by inference." State v.

Quaale, 182 Wn.2d 191, 199, 340 P.3d 213(2014). Such testimony may violate the

defendant's constitutional right to a jury trial, which vests in the jury "the ultimate power

to weigh the evidence and determine the facts." State v. Montgomery, 163 Wn.2d 577,


                                               -6-
No. 76569-8-1/7



590, 183 P.3d 267(2008)(quoting James v. Robeck, 79 Wn.2d 864, 869, 490 P.2d 878

(1971)). A law enforcement officer's improper opinion testimony may be particularly

prejudicial because it carries "a special aura of reliability." State v. King, 167 Wn.2d

324, 331, 219 P.3d 642(2009)(quoting State v. Kirkman, 159 Wn.2d 918, 928, 155

P.3d 125 (2007)).

       When determining whether testimony constitutes an improper opinion on guilt,

we necessarily consider the specific circumstances of each case, including "(1) the type

of witness involved,(2)the specific nature of the testimony,(3)the nature of the

charges,(4) the type of defense, and (5) the other evidence before the trier of fact."

State v. Demery, 144 Wn.2d 753, 760, 30 P.3d 1278(2001)(quoting City of Seattle v.

Heatley, 70 Wn. App. 573, 579, 854 P.2d 658 (1993)). But the admission of an

improper opinion without objection is not automatically reviewable as a "manifest"

constitutional error. State v. Kirkman, 159 Wn.2d 918 at 936; see RAP 2.5(a)(3).

"Manifest error' requires a nearly explicit statement by the witness that the witness

believed the accusing victim." Kirkman, 159 Wn.2d at 936. Washington courts have

"declined to take an expansive view of claims that testimony constitutes an opinion on

guilt." See Demery, 144 Wn.2d at 760.

       Huaman asserts that several witnesses repeatedly expressed their personal

belief that he had committed the charged crime. Officer Bussey, who was the first

officer to respond to the 9-1-1 call, testified that the dispatcher informed him that "the

victim and the suspect" had left the apartment and were headed toward a nearby 7-

Eleven. Bussey also described the general procedure he follows as the first officer on

the scene:


                                             -7-
No. 76569-8-1/8


      [A]s the first officer to arrive, I have to confirm that there has been a crime
      committed. Because we have other officers who are coming into the area
      who may encounter the possible suspect, and we need to have a crime
      and a victim. So that's my primary concern. At that time I confirmed that
      she was the one who called 9-1-1. I confirmed that what she was telling
       me constituted a crime. And I confirmed that she wished to be a victim.

(Emphasis added). Defense counsel did not object.

      A short time later, Bussey explained how he notified the other responding officers

who were looking for the suspect:

      Q. What happened next after you obtained that information from Ms.
      Eaton?

      A. As she's giving it to me, I immediately put out [two] officers that are on
      the road that I have a confirmed crime. First, I let them know that I had a
      confirmed assault DV, domestic violence. And then once I put that out she
      continued to tell me her story. She told me -- when she told me that she
      tried to call 9-1-1 and that Mr. Huaman had taken her phone from her and
      threw it. That constitutes a second crime of interfering with a 9-1-1
      conforming to a DV.

       Q. Okay. And what's the purpose of telling them that?

       A. They're going to be coming in contact with — with a suspected suspect
       of a crime of a violent nature. I want to allow other officers to know that we
       have A) a crime, and B), a victim, and that if they were to encounter him,
       he -- he can be considered dangerous.

      (Emphasis added.) Defense counsel raised no objection.

       Detective O'Neill testified that he was assigned the case after a supervisor

determined that in addition to involving criminal trespass and domestic violence assault,

the case also "met the requisites for burglary," a "serious felony." Defense counsel did

not object.




                                            -8-
No. 76569-8-1/9



         Huaman initially argues that the testimony of both Officer Bussey and Detective

O'Neill violated the trial court's pretrial order. The record fails to support this claim.

         Prior to trial, Huaman moved "to exclude improper opinion evidence." When the

trial court asked about the specific basis for the motion, defense counsel explained that

he was "just concerned if Officer Bussey or Detective O'Neill or somebody says well,

this is how DV victims behave." But none of the State's witnesses purported to offer an

opinion on how domestic violence victims behave. And in any event, when viewed in

context, the officers' references to "crimes" did not their personal opinion on Huaman's

guilt.

         Huaman's reliance on State v. Montgomery is misplaced. In Montgomery, a

prosecution for possession of pseudoephedrine with intent to manufacture

methamphetamine, two detectives observed the defendants purchasing

pseudoephedrine and other items. At trial, one of the detectives testified:
         I felt very strongly that they were, in fact, buying ingredients to
         manufacture methamphetamine based on what they had purchased, the
         manner in which they had done it, going from different stores, going to
         different checkout lanes. I'd seen those actions several times before.

Montgomery, 163 Wn.2d at 587-88. The second detective opined, "those items were

purchased for manufacturing." Montgomery, 163 Wn.2d at 588. And after reviewing the

necessary ingredients for making methamphetamine and the defendant's purchases, a

forensic chemist added,"these are all what lead me toward this pseudoephedrine is

possessed with intent." Montgomery, 163 Wn.2d at 588.

         Our Supreme Court found that the testimony constituted improper opinions on

the defendant's guilt, noting that the testimony involved "the core issue and the only


                                              -9-
No. 76569-8-1/10



disputed element, Montgomery's intent." Montgomery, 163 Wn.2d at 594. The court

concluded, however, that the testimony was not manifest constitutional error because

the jurors were properly instructed that they were the "sole judges of credibility" and

were not bound by expert witness opinions. Montgomery, 163 Wn.2d at 595.

       Here, unlike the witnesses in Montgomery, Officer Bussey and Detective O'Neill

did not offer direct and explicit expressions of personal belief about the defendant's

commission of the charged crimes. Rather, their testimony was essentially contextual.

Bussey's testimony involved his protocol for contacting the complaining witness and

then advising the other officers about whether to detain the suspect. Bussey's

explanation for confirming "crimes" was based solely on Eaton's allegations about what

had happened, a circumstance that defense counsel emphasized during Bussey's

cross-examination. Similarly, Detective O'Neill's brief references to a burglary and

"serious felony" merely explained why he had been assigned to the case.

       Neither Bussey nor O'Neill witnessed any of the charged conduct. Nor did they

assert or imply a belief that Huaman was guilty of the crimes or that Eaton's allegations

were credible. The fact that defense counsel did not object to the challenged testimony

strongly suggests that he did not perceive it, in context, to be either in violation of the

pretrial order or prejudicial. When Officer Baxter testified that Officer Bussey had

advised him of "probable cause" and that "a crime had occurred," defense counsel

promptly objected. The trial court sustained the objection and struck the testimony.

       Moreover, as in Montgomery, the trial court properly instructed the jurors that

they were the "sole judges of the credibility of each witness" and the "value or weight to

be given to the testimony of each witness." See Montgomery, 163 Wn.2d at 595. In


                                             -10-
No. 76569-8-1/11



addition, the court instructed the jury on its duty to decide the facts based on the

evidence and to apply the law to the facts. We must presume that the jury followed

these instructions. Montgomery, 163 Wn.2d at 596. As already noted, the jury

acquitted Huaman of the burglary charge.

       Under the circumstances, although the officers could have formulated the

references to the "crime" more clearly, the challenged testimony did not reflect a

personal belief in Huaman's guilt or constitute an improper opinion on guilt.

Reference to Victim

       Huaman contends that the witnesses' references to Eaton as a "victim" also

reflected their belief that he was guilty. Prior to trial, Huaman moved to exclude any

references to Eaton as a "victim," arguing that the term is improper because it assumes

that a crime has been committed and essentially constitutes an opinion on guilt. The

trial court granted the motion, except for references to "victim" during voir dire, ruling

that "[e]veryone will try their best not to refer to Ms. Eaton as a victim."
       Officer Bussey used the term "victim" a total of six times during his testimony.

Defense counsel objected to only one of the instances, and the deputy prosecutor

admonished Bussey to refer to "the witness by her last name." Officer John Klein, one

of the responding officers, initially referred to Eaton as "the victim." After defense

counsel objected that Eaton was an "[a]lleged victim," Klein corrected himself to use

Eaton's name. In a couple of instances, the deputy prosecutor also referred to Eaton as

the "victim."

       In granting the pretrial motion, the trial court clearly recognized that the particular

meaning to be accorded the term "victim" depends on the context in which it is used, but


                                             -11-
No. 76569-8-1/12



that its use may be questionable in some instances. The court also appears to have

recognized that use of the witness's name or more neutral terms, such as "complainant"

or "complaining witness" serves to reduce any potential misunderstanding or confusion.

       But Huaman has not provided any meaningful legal argument addressing the

specific references to "victim" in this case or demonstrating that the term reflected the

witness's personal belief in his guilt or the credibility of Eaton's initial accounts to the

police. Rather, when viewed in context, the officers and the deputy prosecutor appear

to have used "victim" as the equivalent of "complainant" or "complaining witnesses."

Under the circumstances, Huaman has failed to demonstrate any prejudice resulting

from the relatively few violations of the trial court's pretrial order.

       Huaman contends that the deputy prosecutor committed misconduct by not

"inform[ing] her witnesses of the court's rulings" about the term "victim." Because this

allegation rests on matters outside the record, we cannot consider it in a direct appeal.

See State v. McFarland, 127 Wn.2d 322, 337-38, 899 P.2d 1251 (1995)(the court will

not review matters outside of the trial record on direct appeal).

       Similarly, Huaman contends that the testifying officers "repeatedly discussed the

fact that Mr. Huaman was in jail." He concedes that he did not move to exclude such

references, but asserts that "they are of the same character as improper opinions on

guilt." But he has not cited any relevant authority to support this conclusory allegation

or presented any legal argument demonstrating that the references, when viewed in

context, reflected the witnesses' personal belief that he was guilty of the charged

crimes. We therefore decline to consider the issue. See Saunders v. Lloyd's of

London, 113 Wn.2d 330, 345, 779 P.2d 249(1989)(an appellate court will generally


                                              -12-
No. 76569-8-1/13



decline to consider issues unsupported by cogent legal argument and citation to

relevant authority). As this court noted in State v. Mullin-Coston, 115 Wn. App. 679,

692,64 P.3d 40(2003), aff'd, 152 Wn.2d 107, 95 P.3d 321 (2004), references to the

defendant's pretrial custodial status do not automatically violate the right to a fair trial or

the presumption of innocence. "Jurors must be expected to know that a person

awaiting trial will often do so in custody." Mullin-Coston, 115 Wn. App. at 693(evidence

that the defendant was in jail during certain conversations he had with witnesses after

his arrest did not violate right to fair trial or presumption of innocence).

Prosecutorial Misconduct

       Huaman contends that the deputy prosecutor committed prosecutorial

misconduct during closing argument by urging the jury to convict him based on

evidence outside the record, by vouching for a State witness, and by appealing to the

jury's passions and prejudices. We disagree.

       A defendant claiming prosecutorial misconduct bears the burden of

demonstrating that the challenged conduct was both improper and prejudicial. State v.

Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830(2003). Prejudice occurs only if "there is a

substantial likelihood the instances of misconduct affected the jury's verdict." State v.

Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995). We review misconduct claims in the

context of the total argument, the evidence addressed, the issues in the case, and the

jury instructions. State v. Boehning, 127 Wn. App. 511, 519, 111 P.3d 899 (2005).

       During closing argument, the deputy prosecutor suggested that Eaton's own trial

testimony established the assault and interference with domestic violence reporting and




                                             -13-
No. 76569-8-1/14



that "the only real issue in this case.. . is whether or not the defendant entered or

remained unlawfully in Ms. Eaton's apartment." The deputy prosecutor then proposed
       that the way you answer this question is two-fold. You -- number 1,
       answer by assessing the witness's testimony to discern it -- to determine
       what is credible. So we talked in the beginning about, you know, the types
       of evidence you'd see and hear. The main type of evidence you have, it's
       not a physical evidence case. There's not like fingerprints. There's not --
       it's not that kind of case. It's not a CSI case. It's a case about testimony.

               And that doesn't make it weaker or stronger. It's just a different
       kind of evidence. It's all the same. There's nothing in there that tells you
       like, oh, testimony's not as good as like video surveillance. These are
       domestic violence crimes: crimes against family or household members.
       Of course they happen behind closed doors. They're not happening on
       video. They're not -- I mean, that's the nature of this. And if we couldn't go
       forward on these without simply testimony, we'd be in a world of hurt,
       right? And think about --

        DEFENSE COUNSEL: Objection, Your Honor. This is --

       THE COURT: Overruled.

       DEPUTY PROSECUTOR: We have cases all the time going on where
       we're going forward, you know, based purely on testimony. So it's not
       necessarily something bad. But you have to be able to assess it. Luckily
       the instructions help us.

(Emphasis added).

       The deputy prosecutor continued with a lengthy argument about how to assess

credibility.

        Huaman contends that the comments improperly urged the jury to convict him
based on unsupported generalizations about domestic violence. He also argues that

the comments amounted to an emotional appeal that sought to reduce the State's




                                           -14-
No. 76569-8-1/15



burden of proof and raise the jury's sympathy about the difficulties of convicting

domestic violence perpetrators.

      The deputy prosecutor's brief references to domestic violence cases were part of

a lengthy, overarching review that focused the jury's attention on the specific evidence

in this case and on the instructions. When her comments are viewed in context, the

deputy prosecutor did not invite the jury to abandon the proper standard of proof or

decide the case on emotional grounds. Moreover, even if there were some impropriety,

there was no reasonable likelihood that the comments affected the verdict. See State v.

Magers, 164 Wn.2d 174, 192, 189 P.3d 126(2008)(prosecutor's comments about the

"dynamics of domestic violence relationships" in relation to the total argument was not

so egregious as to warrant reversal).

       Huaman next contends that the deputy prosecutor improperly vouched for the

credibility of Officer Bussey:
       So then he tells us, okay, we go back to the apartment, and I kind of look
       around. One thing that he testified really clearly about, and I -- I think he
       was the officer who had a number of years of past experience with law
       enforcement. But he was clearly articulate and -- like trained in
       observation --

       DEFENSE COUNSEL: Objection, Your Honor. This is vouching.

       THE COURT: Overruled.

       DEPUTY PROSECUTOR: He was very observant. You could tell from his
       testimony. And he talked about smelling alcohol on Ms. Eaton. And he
       said; "I did smell alcohol on her. And at first I smelled it when we were at
       the scene and it was Mr. Slaght and Ms. Eaton standing together. And so I
       wasn't sure who it was coming from. But I was able to figure out it was
       coming from Ms. Eaton when I got her alone. Because of that, I observed
       her to make sure that she wasn't intoxicated.



                                            -15-
No. 76569-8-1/16



(Emphasis added).

      The prosecutor may not vouch for the credibility of a witness. State v.

Thorgerson, 172 Wn.2d 438, 443, 258 P.3d 43(2011). "Improper vouching occurs

when the prosecutor expresses a personal belief in the veracity of a witness or indicates

that evidence not presented at trial supports the testimony of a witness." Thorgerson,

172 Wn.2d at 443. But the prosecutor may argue the credibility of a witness "based on

reasonable inferences from the evidence." Thorgerson, 172 Wn.2d at 448.

       Here the deputy prosecutor did not express a personal belief about credibility, but

rather properly argued that inferences drawn from Officer Bussey's testimony suggested

he was a credible witness. The issue was significant because Eaton had recanted her

original statement and disputed Officer Bussey's account. The challenged comments

fell within the wide latitude afforded the deputy prosecutor to draw and express

reasonable inferences from the evidence and were therefore not improper. See State v.

Stetson, 132 Wn.2d 668, 727, 940 P.2d 1239(1997).

       Finally, Huaman contends that the deputy prosecutor committed misconduct by

urging the jury "to imagine what Ms. Eaton must have been thinking and feeling":
       She loves him. And she is in a particularly vulnerable situation. She told
       you that she's a homeless youth. She met him in a homeless shelter. She
       has prior -- she knows what domestic violence is, she told us, because
       she's been in a prior DV relationship.

              So imagine that the love that she feels when someone shows her
       some sort of love is a pretty powerful kind of love. Powerful enough that
       you don't want it to go away when you find that what happened is
       changing that relationship. It's making it so that you can't see your fiancé.
       You can't talk to them. They may get in trouble. She testified, "I told him
       that he would have to go back to Peru." We don't know all the
       repercussions, but that we do know that she was not happy as things
       started to calm down after this.


                                           -16-
No. 76569-8-1/17



(Emphasis added). Huaman argues that the comments improperly appealed to the

passions and prejudice of the jury and assumed facts not in evidence.

      The challenged comments were part of the deputy prosecutor's attempt to

explain Eaton's differing accounts, a challenge that both sides faced. The deputy

prosecutor did not invite the jury to decide the issue on emotional grounds, but properly

attempted to explain the recantation based on the circumstances that Eaton herself

revealed. Such arguments fall within the proper scope of closing argument. See

Stetson, 132 Wn.2d at 727.

       Moreover, the defense raised no objection to the comments. When the

defendant fails to object, we will not review the alleged error unless the defendant

demonstrates that the misconduct was "so flagrant and ill intentioned that no curative

instructions could have obviated the prejudice engendered by the misconduct." State v.

Be!garde, 110 Wn.2d 504, 507, 755 P.2d 174(1988). Even if part of the argument was

improper, Huaman has failed to demonstrate why a curative instruction would not have

cured any potential prejudice.

       Huaman contends that even if no single error merits reversal, the cumulative

effect of the errors deprived him of a fair trial. Because Huaman has not shown an

accumulation of errors, the cumulative error doctrine does not apply. See In re Pers.

Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835 (1994).




                                           -17-
No. 76569-8-1/18



      Affirmed.




                      11a4,01, e.-7-
                      ,
WE CONCUR:




                   -18-
