                                                                                                              FILED
                                                                                                      COURT OF APPEALS
                                                                                                                      II
     IN THE COURT                  OF APPEALS OF                THE STATE OF
                                                                                                    2015 APR 28 Am 8, 86
                                                    DIVISION II
                                                                                                    STATOF          Sf1NGTON
 STATE OF WASHINGTON,                                                           No. 45198 -1 - II
                                                                                                    BY

                                         Respondent,


          v.



 ANDRE TAYLOR,                                                           UNPUBLISHED OPINION


                                         Appellant.


         MELNICK, J. —        Andre Taylor appeals his convictions for assault in the second degree and

attempted      kidnapping    in the     second   degree, both   with sexual motivation.    Taylor argues the " to


convict" instruction for assault in the second degree failed to accurately instruct the jury, the trial

court impermissibly commented on the evidence, the State committed prosecutorial misconduct,

the trial court abused its discretion when it admitted evidence, and cumulative errors denied him a

fair trial. We reject Taylor' s claims and affirm.


                                                            FACTS


I.       SUBSTANTIVE FACTS


         At approximately 4: 00 A.M. on February 17, 2012, H.H. left her job as floor supervisor at

McDonald' s. Because of the unavailability of a ride, she decided to walk to her manager' s nearby

house.    H.H. noticed a truck following her, and ignored the driver, Taylor, when he gestured to

her. In an attempt to avoid him, H.H. crossed the street. Shortly thereafter, the truck came around

a corner and struck     H. H. She " folded" completely           underneath   the truck.   Report of Proceedings


 RP) (   May    29, 2013).   at   30.   Prior to impact, H.H. did not notice Taylor honk the horn, apply the

brakes, or attempt to swerve out of the way. Nothing in the immediate area obstructed Taylor or

prevented      him from swerving to         avoid   H. H.
45198 -1 - II



          After impact, Taylor put the truck in reverse, backed it off H.H., and then stopped. Taylor


exited his truck and picked up H.H. He dropped her when H.H. struggled.

          A witness approached the scene and H.H. requested that .someone call 911; however,

neither   Taylor    nor   the witness      made    any   effort   to   make   the    call.   H.H.' s phone, which she had


taken   out of   her   pocket prior     to impact, laid in        pieces on    the    ground.    H.H. managed to put her


phone   back together         and called   911.    Taylor left in his vehicle before medical personnel and law


enforcement arrived.



          Medical      help   arrived and   transported     H.H. to the hospital.            As a result of being struck by

the truck, H.H. sustained significant injuries including hemorrhaging in her eyes, three broken ribs,

a bruised lung, a broken clavicle, a complex hip fracture, dislocated hip, broken tailbone, and a

broken    pelvis.   She underwent two surgeries, remained hospitalized for three weeks, and resided

in a rehabilitation facility for an additional week or two.

          Law enforcement investigated and determined Taylor and his truck were involved.

Following his arrest, Taylor told Detectives Ryan Larsen and John Bair that he had followed H.H.

and tried to talk to her. Taylor admitted that he consumed alcohol and smoked crack cocaine prior


to striking H.H., and that he likes " companionship" when he' s high. RP ( June 3, 2013) at 43. He

told the detectives that the brakes on his vehicle weren' t working, but that the emergency brake

does work so he used that as his primary brake. Later in the interview, he said that the mechanical

condition of     his   vehicle   did   not cause   him to   strike     H. H., but ‘" [ t] he   reason was accidental. "'   RP


 June 3, 2013) at 57.


          The State charged Taylor with assault in the first degree with sexual motivation and


attempted kidnapping in the second degree with sexual motivation.




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45198 -1 - II



II.      PRETRIAL


         The State sought to admit an interview between Detective Bair and Taylor. Taylor moved

the court in limine to redact the following exchange between Detective Bair and Taylor that

occurred during the interview:

          BAIR:     And we ask[ ed] you what you think she was thinking and you told us a
          response that involved two words. What were those words?
          TAYLOR: I don' t           want     to say that.   I just —I feel like     bodily   harm. I mean, uh,
          I —I   would —if     I was in that .. .
          BAIR: Well, Andre, let              me ask you     this.     If I say the words that you said to me,
          and you correct me          if I'   m   wrong. Did   you      say the word ` rape'? And did you say
          the   word ` kill'?    As —as       a response, you         asked us that y —she' d be thinking two

          words.    Are those two words that I just said, is that an incorrect representation of
          what you said earlier?

          TAYLOR: No, that' s not incorrect.


Clerk'   s_    Papers ( CP)     at   159 -160.       Taylor argued that the statement was speculative and a


layperson' s opinion on his guilt or innocence. The. State argued that the statements were Taylor' s

interpretation     of his own conduct and were            the "   statements made     by a party- opponent."   CP at 207.


The trial     court noted    that    while "[     w]itnesses are generally not permitted to speculate or express

their   personal   beliefs    about    the defendant' s guilt         or   innocence,"   here Taylor was describing his

  own    interpretation   as    to how his        own   behavior      could   have been interpreted   or perceived."   RP


 Sept. 24, 2012) at 7. Accordingly, the trial court denied Taylor' s proposed redaction.

III.      TRIAL


          During direct examination of Detective Larsen, the State elicited testimony regarding

Taylor' s statements to Detectives Larsen and Bair:


              STATE]:   Was there a discussion about what the victim would have thought based
          on his actions?
              DETECTIVE LARSEN]: Yes. I specifically asked him, ` What do you think she
          would   have said if asked about what you were going to do to her ?' And he looked

          up and he said ` stalk.'
              TAYLOR]: Objection. Speculation.
          THE [ TRIAL] COURT: Overruled.




                                                                  3
45198 -1 - I1



         BY [ STATE]: Go ahead.
          DETECTIVE LARSEN] : He               said, `   Stalk. She   said ` stalk'   to   me.'    And then I said,
          What do     you   think   she was    going to —what do you think she thought you were
         going to do to her ?' And Taylor said, ` Kill, rape.' And I asked him, ` Do you think
         she was scared ?' And he said, ` If I was in her shoes alone, I' d be scared.'



RP ( June 3, 2013) at 43 -44.


         The jury heard testimony that         prior   to the incident, Taylor told        a   friend that he   was "`   hornier


than [ expletive]."    RP ( June 3, 2013) at 159. The jury also heard testimony from two of Taylor' s

cellmates, James Herness and. Curtis Hudson. Herness testified that, following his arrest, Taylor

told Herness that he had       mistaken      H. H. for      a prostitute and   that "[     s] omething came over [ him].

 He] just   couldn' t help [ him] self." RP ( June 4, 2013) at 109. Additionally, Hudson testified Taylor

told him that " he    was   going to have his way           with [ H.H.]"   if he could get her back to his friend' s


home. RP ( June 5, 2013) at 68. When he described the incident to Hudson, Taylor used the term

 ran   her down."     RP ( June 5, 2013)        at    69.    Taylor testified that he hoped to engage in sexual


conduct with H.H. on the night of the incident, that he went to the area of the incident to locate a

prostitute, and that he believed H.H. was a prostitute.


         During cross -examination of Taylor, the State concentrated on Taylor' s inconsistencies
between his testimony        and    his   statement    to law   enforcement,    Herness,        and   Hudson. Outside the


presence of the jury, the State argued to the trial court that the defense changed tactics during the
course of the trial and that the State intended to inquire as to inconsistencies between Taylor' s

testimony, his previous statements, and what his attorney represented during opening statements

and motions      in limine.    The trial court allowed the State to inquire of Taylor regarding the

inconsistencies.




                                                                4
45198 -1 - II




          During cross -examination, the following exchange took place between the State and

Taylor:


           STATE]:         In fact, you' ve had a chance to review your taped statement as well;
          right?

          TAYLOR] : I have.
           STATE]:     Nowhere in that did you ever once say you were looking for a prostitute;
          right?

          TAYLOR]: Correct.
           STATE]:         You wanted to have sex with her that night, or that morning; right?
           TAYLOR]:          Hopefully.
           STATE]: Because that' s what people do with prostitutes after 4 a.m.; right?
           TAYLOR]: Yes.
           STATE] :   And we also know that because your attorney said in her opening
          statement you were hoping to have sex with her that morning; right?
           TAYLOR] : Correct.
           STATE]:     Well, how come you told the detectives that you didn' t want to have sex
          with her then?
           TAYLOR] : I don' t know.
           STATE]:         What do    you mean, you     don' t know? You told the detectives that you

          didn' t want to have sex with her that morning; right?
           TAYLOR]: That' s what I told them.
           STATE]: That was a lie, wasn' t it?
           TAYLOR]: No.
             STATE]: Well ...         how do you juxtapose the two? .. .
           TAYLOR]:          Because there was a point that I wanted to have sex and there was a
          point I didn' t. That' s what I was talking about.
             STATE]: At what point did that change, Mr. Taylor?
           TAYLOR]: I figured out she wasn' t a prostitute.
             STATE]:  Really? Because your attorney stood up in her opening statement and
          said that you contacted her because she was in trouble and that you were hoping
          maybe that would lead to sex. Isn' t that what she said?


RP ( June 11, 2013)          at   21 -23.    Before Taylor answered, his counsel objected on the basis that


opening      statements are not evidence.           The court removed the jury and, after argument, the trial

court sustained      the   objection.       When the jury   returned,   the State further inquired, " Mr.   Taylor, you


spoke   to   your   attorney      about whether or not you wanted         to have   sex."   RP ( June 11, 2013) at 24.


Before Taylor answered, his counsel objected based on a violation of the attorney- client privilege.




                                                               5
45198 -1 - II




The trial     court sustained      the     objection.       The State continued to question Taylor about his prior

inconsistent statements.


IV.      CLOSING ARGUMENT


         During closing arguments, the State and Taylor focused on the issue of whether Taylor

intended to strike H.H. with his vehicle. The State first argued


         He ran her down, and so if you know, based on the evidence, that he intentionally
         acted, then the State has met its burden with regard to Count I and Count II because
         common sense tells you there' s no other explanation for the other elements, right?
         To convict him of [ a] ssault in the [ f]irst [ d] egree on or about the 17th day of
         February 2012, he assaulted H.H. and the assault requires the intentional conduct.

RP ( June 12, 2013)        at   37.   The State then moved on to discuss intent to inflict bodily harm and

stated, "   If you intend to run somebody over with a truck, you intend to inflict great bodily harm."

RP ( June 12, 2013) at 37. Additionally, the State argued

            Taylor] is going to suggest, `Well, if he was intending to rape her, he couldn' t have
         been      intending    to inflict    great   bodily   harm. That'        s   inconsistent.' ...    You have a
            lesser crime of [a] ssault in the [ s] econd [ d] egree with [ s] exual [ m] otivation, right?
            The only difference is that           you   intentionally       assaulted, right?      That' s the issue that
            I think is in this case, and that he recklessly inflicted substantial bodily harm as a
            result of the assault.    Well, if he didn' t intend great bodily harm, he certainly
            recklessly inflicted substantial bodily harm.

RP ( June 12, 2013) at 38.


            During    defense closing        argument,       Taylor'   s   attorney   stated, "   Counsel stated to you during

closing [argument] just moments ago that for [a] ssault 2, the State only has to prove that Mr. Taylor

recklessly inflicted.       Wrong."         RP ( June 12, 2013) at 44.


            In response, the State argued


             Taylor] suggested that I said [a] ssault in the [ s] econd degree did not require intent.
            That was her argument, that I, for some reason, said it didn' t require intent. Well,
            I said in my opening statement and I said in my closing statement that that' s the
            sole   issue in this   case.     It   applies   to every       assault.   She said that her client clearly
            committed [ a] sault   That' s what she said because he negligently caused injury.
                                      3.
            Well, if he committed [ a] ssault 3, then he certainly committed [ a] ssault 2, because


                                                                   6
45198 -1 - II




           in order to commit [ a] ssault 2, the only difference is that he has to act recklessly
           instead of negligently and reckless simply requires, it' s Instruction No. 18, that the
            d] efendant knows of and disregards a substantial risk that a wrongful act may occur
           and that this disregards a gross deviation from the conduct that a reasonable person
           would exercise.



RP ( June 12, 2013) at 93 -94. Taylor did not object.


V.         JURY INSTRUCTIONS AND DELIBERATIONS


           Taylor did                                      instruction                    in the            degree.    Without
                            not       propose   a   jury                  on    assault            second




objection, the trial court submitted following lesser included assault in the second degree to convict
                                  1
instruction to      the   jury:

                     To convict the defendant of the crime of assault in the second degree, each
           of the following two elements of the crime must be proved beyond a reasonable
           doubt:
                      1) That on or about the 17th day of February 2012, the defendant:
                                      a) intentionally assaulted H.H. and thereby recklessly inflicted
                     substantial bodily harm; or
                             b) assaulted H.H. with a deadly weapon; and
                      2) That this act occurred in the State of Washington.


CP   at   450 ( Instr. 16).       Additionally, the trial court submitted an instruction defining assault:

                     An assault is an intentional touching or striking of another person that is
           harmful or offensive. A touching or striking is offensive if the touching or striking
           would offend an ordinary person who is not unduly sensitive.

CP   at   443 ( Instr. 9).    The jury also received instructions defining intent and recklessness.

                      deliberations, the            jury                 the   following   question   to the trial    court: "   In
           During                                          submitted




instruction 16, does the fact that 1a states ` intentionally assaulted' and lb only states ` assaulted'

imply that      satisfying lb does not          require ` intent'   ?"   CP at 470. Following discussion with counsel,

the trial   court responded: "           Regarding your question dated June 13, 2013; at 11: 38 am, please refer




1 The record on appeal does not contain the State' s proposed instructions and it is unclear who
proposed      the instruction.
45198 -1 - II




to   your   jury instructions." CP   at   471.    Taylor objected to the trial court not including language

telling the jury it should refer to the specific instruction defining assault.

            The jury found Taylor guilty of assault in the second degree and attempted kidnapping in

the second degree. The jury returned special verdicts finding that Taylor committed both crimes

with sexual motivation. The trial court sentenced Taylor to 126 months to life confinement. Taylor


timely appeals.

                                                    ANALYSIS


I.          JURY INSTRUCTIONS


            Taylor argues that the " to convict" instruction for assault in the second degree failed to

accurately instruct the jury as to the element of intent and that it relieved the State of its burden to

prove every essential element of the crime beyond a reasonable doubt. We disagree.
            A.     Standard of Review and Law


            We review jury instructions for errors of law de novo and consider the challenged

instructions in the    context of all of    the   jury   instructions.   State v. Hayward, 152 Wn. App. 632,

641 -42, 217 P. 3d 354 ( 2009).    Generally, a defendant cannot challenge a jury instruction on appeal

if he did not object to the instruction in the trial court. State v. Salas, 127 Wn.2d 173, 181, 897

P. 2d 1246 ( 1995).    A defendant can raise such an error for the first time on appeal if the instruction

involves a manifest error affecting a constitutional right. Salas, 127 Wn.2d at 182. Instructing the

jury in a manner that relieves the State of its burden of proof is an error of constitutional magnitude

that a defendant can raise for the first time on appeal. State v. Byrd, 125 Wn.2d 707, 714, 887 P. 2d

396 ( 1995).




                                                            8
45198 -1 - II




           B.         The Trial Court Properly Instructed the Jury on the Elements of Assault in the
                      Second Degree


           The jury may look to the instructions as a whole for a complete statement of the elements

of   the   crime charged.         See State        v.   Brown, 132 Wn.2d 529, 605 -06, 940 P. 2d 546 ( 1997).              Our


Supreme Court applied this principle in Byrd when it held that " the instructions, taken in their


entirety" must inform the jury that the State had the burden of proving that the defendant acted

with intent to create a reasonable apprehension of harm. 125 Wn.2d at 714 -16. Similarly, Division

Three of this court looked to the instructions as a whole to determine whether they cured the

deficiency found in a " to convict" instruction for assault in the second degree that omitted the

element of        intent. State     v.   Hall, 104 Wn.             App.    56, 63, 14 P. 3d 884 ( 2000) ( no error where " to


convict" instruction omitted the intent element because instructions as a whole properly informed

the jury that intent was essential element of assault in the third degree).

           Here, the State charged Taylor with alternative means of committing assault in the second

degree.      The State alleged Taylor either ( 1) intentionally assaulted H.H. and recklessly inflicted

substantial       bodily   harm    or    he ( 2)   assaulted       H.H.    with a   deadly   weapon.   The court instructed the


jury using the standard WPIC language. 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY
INSTRUCTIONS: CRIMINAL 35. 12,                     at   465 ( 3d   ed.   2008). The first alternative is written to encompass


both of the mens rea required to prove it. The second alternative involves only one mens rea.

           Taylor' s argument is that the juxtaposition of these alternatives is error. We disagree. To

prove both alternatives, the State had to prove that an assault occurred. Jury instruction 9 correctly

defined "       assault ": "[   a] n assault is an intentional touching or striking of another person that is

harmful      or offensive."       CP     at   443 ( Instr. 9).      The first alternative required that the State prove that


Taylor      also   recklessly inflicted            substantial      bodily    harm.    We presume that the jury reads and

follows the instructions as a whole. State v. Alford, 25 Wn. App. 661, 670, 611 P. 2d 1268 ( 1980),


                                                                          9
45198 -1 - II




affd,   State    v.   Claborn, 95 Wn.2d 629, 628 P. 2d 467 ( 1981).                           Here, the instructions as a whole


properly informed the jury the State had to prove intent in both alternatives of assault in the second

degree. The trial court did not err.


          Taylor further argues that the jury' s question regarding the intent element indicates that it

believed the State did not have to prove intent to convict Taylor of assault in the second degree.

We disagree.           A jury question, if properly answered, cannot create an assumption as to the basis

for the   jury' s decision.            See State       v.   Ng,   110 Wn.2d 32, 43, 750 P. 2d 632 ( 1988) (             jury's question

does not create an inference that the entire jury was confused, or that any confusion was not

clarified before            a    final    verdict       was       reached). "` [     questions from the jury are not final

determinations,            and   the     decision      of   the   jury   is   contained   exclusively in the      verdict. '    Ng, 110

Wn.2d     at   43 ( quoting State           v.   Miller, 40 Wn.           App.     483, 489, 698 P. 2d 1123 ( 1985)).          Questions


from the       jury    cannot      be    used    to impeach          a verdict.     Ng,   110 Wn.2d    at   43.   The jury's question

during deliberations does not establish that the jury convicted Taylor without finding the required

element     of    intent.        Therefore, Taylor' s claim fails and we hold that the trial court properly

instructed the jury.

II.       COMMENT ON THE EVIDENCE


          Taylor argues that the trial court impermissibly commented on the evidence when it

                                                             the                                 to          jury   instructions. '   Br.
responded       to the      jury' s    question with                statement, "' please refer        your




of    Appellant       at   11 ( quoting CP        at   471).       Specifically, Taylor argues that the trial court' s response

directing the jury to refer to its instructions lowered the State' s burden of proof and violated due
process. We disagree.




                                                                              10
45198 -1 - II



            A.         Standard of Review and Law


            Article IV, §              16 of the Washington constitution prohibits judges from commenting on

evidence.         State   v.   Elmore, 139 Wn.2d 250, 275, 985 P. 2d 289 ( 1999).                         We review constitutional


questions        de   novo.       State   v.   Cubias, 155 Wn.2d 549, 552, 120 P. 3d 929 ( 2005). " To constitute a


comment on the evidence, it must appear that the [ trial] court's attitude toward the merits of the

                                                                                                                                State
cause are        reasonably inferable from the                nature or manner of         the [ trial] court's   statements."




v.   Carothers, 84 Wn. 2d 256, 267, 525 P. 2d 731 ( 1974); see also State v. Ciskie, 110 Wn.2d 263,


283, 751 P. 2d 1165 ( 1988) ( " An impermissible comment on the evidence is an indication to the


jury   of   the   judge' s     personal attitudes       toward the merits      of   the   cause. "). "[   A]ny remark that has the

potential effect of suggesting that the jury need not consider an element of an offense could qualify

as   judicial     comment."             State v. Levy, 156 Wn.2d 709, 721, 132 P. 3d 1076 ( 2006).

            B.         The Trial Court Did Not Comment on the Evidence


            Here, the trial responded to the jury' s question by instructing the jury to " refer to [ its] jury

instructions."          CP        at   471.    As discussed previously, the jury instructions as a whole properly

informed the                        the              intent                          in the               degree. The trial court' s
                      jury     of         specific            element of assault               second




response neither suggested nor had the potential to suggest that the jury need not consider an

element of an offense. Nothing in the trial court' s response indicates the judge' s personal attitudes

towards the merits of the cause. We hold that the trial court' s response was not a judicial comment.

III.        PROSECUTORIAL MISCONDUCT


            Taylor argues that the State committed prosecutorial misconduct on two occasions while


cross -examining Taylor. First, the prosecuting attorney asked Taylor about the defense' s opening

statement.         Second, the prosecuting attorney asked Taylor if he had discussed with his attorney a

desire to        engage      in    sexual conduct with         the   victim.   Taylor also argues the prosecuting attorney




                                                                       11
45198 -1 - II




committed misconduct during rebuttal closing argument by stating that there is no difference

between the mens rea required for assault in the second degree and assault in the third degree. We

hold that no prosecutorial misconduct occurred.


            A.         Standard of Review


            To establish prosecutorial misconduct, a defendant bears the burden to establish both that

 1) the prosecuting attorney committed misconduct by making inappropriate remarks, and (2) those

remarks had prejudicial effect. See State v. Emery, 174 Wn.2d 741, 759 -61, 278 P. 3d 653 ( 2012).

If the defendant meets that burden, we may reverse the defendant's conviction. Emery, 174 Wn.2d

at   760 -61.    We review whether misconduct prejudiced the defendant under one of two different


standards of review. Emery, 174 Wn.2d at 760 -61.

            If the defendant objected at trial, then we analyze whether there is a substantial likelihood

that the prosecuting attorney' s misconduct prejudiced the defendant by affecting the jury's verdict.

Emery,      174 Wn.2d       at   760.    But where the defendant failed to object to the prosecuting attorney' s

misconduct at trial, we apply a different, heightened standard of review. See Emery, 174 Wn.2d

at   761.    Under this heightened standard of review, the defendant must show that the prosecuting

attorney' s misconduct " was so flagrant and ill intentioned that an instruction could not have cured

the resulting         prejudice."       Emery,    174 Wn.2d       at   760 -61.   This heightened standard of review


requires      the     defendant to       show    that "( 1) `   no curative instruction would have obviated any

prejudicial effect on the jury' and ( 2) the misconduct resulted in prejudice that ` had a substantial

likelihood       of   affecting the     jury verdict. ' Emery, 174 Wn.2d at 761 ( quoting State v. Thorgerson,

172 Wn.2d 438, 455, 258 P. 3d 43 ( 2011)).                      We focus " more on whether the resulting prejudice

could    have been       cured."    Emery, 174 Wn.2d at 762.




                                                                  12
45198 -1 - II




         B.          No Prosecutorial Misconduct


                     1.       Cross -Examination of Taylor


         Taylor' s counsel objected to both instances of alleged prosecutorial misconduct during

cross -examination of Taylor and the trial court sustained the objections. The trial court instructed

the jury that the evidence it was to consider during deliberations consisted of testimony from

witnesses, stipulations, and exhibits admitted during the trial and that it was to disregard any

inadmissible evidence. There is no misconduct or error.

         Here, the prosecuting attorney' s questions, while improper, do not amount to misconduct.

The prosecuting attorney merely asked two objectionable questions on an issue that Taylor testified

to   during direct        examination.   Taylor quickly objected to both questions and the trial court

sustained     both    objections   before Taylor   answered.      There is no substantial likelihood that the


prosecuting attorney' s questions affected the jury because the trial court instructed the jury to

consider only the evidence, not the statements or remarks from counsel. We presume that the jury
follows the trial court' s instructions. State y. Lord, 117 Wn.2d 829, 861, 822 P. 2d 177 ( 1991).

         Taylor claims that the prosecuting attorney' s questions affected the entire trial such that

the jury could not render a fair verdict. We disagree because the prosecuting attorney' s questions

had no prejudicial effect. The jury heard from Taylor during direct examination that he hoped to

engage in sexual conduct with H.H. that night. Taylor also testified that he went to the area of the

incident to locate a prostitute and that he believed H.H. was a prostitute. The jury also heard that

prior   to the incident, Taylor told      a   friend that he   was "'   hornier than [   expletive]."   RP ( June 3,


2013)    at   159.   The jury also heard that prior to striking H.H. with his vehicle, H.H. did not hear

Taylor honk the horn or apply the brakes, or see him swerve out of the way. After impact, Taylor

attempted to pick H.H. up off the ground, she struggled, and Taylor dropped her. The jury heard



                                                          13
45198 -1 - II




that when asked by law enforcement about whether the mechanical issues of his vehicle were the

reason   he     struck   H. H., Taylor       replied   that   wasn'   t the    reason.    Given this evidence,. there is no


substantial likelihood that the prosecuting attorney' s improper cross -examination prejudiced or

affected the jury' s verdict. See Emery, 174 Wn.2d at 760. Therefore, we hold that no prosecutorial

misconduct occurred during cross -examination of Taylor.

                    2.              Rebuttal Closing Argument

         Taylor next argues that the prosecuting attorney committed misconduct during the State' s

rebuttal closing argument by misstating the law and thereby lowering the State' s burden of proof.

Taylor did not object. Therefore, we analyze whether the alleged misconduct was so flagrant and

ill-intentioned that an instruction could not have cured the resulting prejudice.

         We review a prosecuting attorney' s comments during closing argument in the context of

the total argument, the issues in the case, the evidence addressed in the argument, and the jury

instructions.       State      v.    Carver, 122 Wn.      App.    300, 306, 93 P. 3d 947 ( 2004).            In addition, a


prosecuting attorney' s improper remarks are not grounds for reversal if the defense counsel invited

or provoked the comments, they are a pertinent reply to defense counsel's arguments, and are not

so prejudicial that a curative instruction would be ineffective. Carver, 122 Wn. App. at 306.

         Here, the prosecuting attorney' s comments during rebuttal closing argument were a

pertinent reply to defense counsel' s arguments. The prosecuting attorney responded to the defense

attorney'   s comment          that "[   c] ounsel stated to you during closing [ argument] just moments ago that

for [ a] ssault 2, the State only has to          prove   that Mr. Taylor recklessly inflicted.         Wrong."   RP ( June


12, 2013) at 44. Furthermore, the statements were not improper because the prosecuting attorney

did   not misstate       the   law. Under RCW 9A.36. 021( 1)(                 a),   a person commits assault in the second


degree if he "[      i] ntentionally assaults another and thereby recklessly inflicts substantial bodily



                                                                 14
45198 -1 - II




harm."     This crime is comprised of an act, assault, and a result, substantial bodily arm. See State

v.   Tunney,    129 Wn.2d 336, 341, 917 P. 2d 95 ( 1996).              The mens rea of intentionally relates to the

act of assault and the mens rea of recklessly relates to the result of substantial bodily harm. Read

in   context,   the prosecuting attorney correctly         stated   that intent " applies to every      assault."     RP ( June


12, 2013)       at   93.   The prosecutor referenced the infliction of substantial bodily injury by stating,

     I] f [Taylor] committed [ a] ssault 3, then he certainly committed [ a] ssault 2, because in order to

commit [ a] ssault 2, the only difference is that [ Taylor] has to act recklessly instead of negligently

and reckless         simply   requires,   it' s Instruction No. 18."   RP ( June 12, 2013) at 94. The prosecuting

attorney did not argue that intent is not an essential element of assault, did not misstate the law,
and did not lower the State' s burden of proof.


           Even if the prosecuting attorney misstated the law during rebuttal closing argument, Taylor

cannot show that the comments were so prejudicial that a curative instruction would have been

ineffective.         Here, no prejudice resulted from the State' s closing argument because, as discussed

above, the trial court properly instructed the jury on assault in the second degree with its required

form of intent. Additionally, the trial court instructed the jury to consider only the evidence, not

the    statements or remarks         from    counsel.   Therefore, Taylor' s argument fails and we hold that no


prosecutorial misconduct occurred during the State' s rebuttal closing argument.

IV.        TAYLOR' S STATEMENTS


           Taylor argues for the first time on appeal that the trial court abused its discretion when it

admitted Taylor' s statement regarding what he thought the alleged victim was thinking during the

incident under ER 401 and ER 403. At trial, however, Taylor' s sole objection to the admission of

this evidence         was under    ER 701.     He does   not appeal    the   court' s   decision   on   that basis.    Because


Taylor     must assign error "      only    on a specific ground made at        trial,"   and does not allege a manifest




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error   affecting     a constitutional right,      this   argument    is   not proper.   State v. Kirkman, 159 Wn.2d


918, 926, 155 P. 3d 125 ( 2007); RAP 2. 5( a)( 3).


V.        CUMULATIVE ERROR


          Finally, Taylor argues that we should reverse his convictions under the cumulative error

doctrine.    Application of the cumulative error doctrine " is limited to instances when there have

been several trial errors that standing alone may not be sufficient to justify reversal but when

combined        may   deny   a   defendant   a   fair trial."   State v. Greiff, 141 Wn.2d 910, 929, 10 P. 3d 390

 2000).     Because no errors occurred, no cumulative and enduring prejudice occurred that likely

affected the jury' s verdict. Therefore, no accumulation of error denied Taylor a fair trial. We hold

this claim is without merit.

          We affirm Taylor' s convictions.


          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.




We concur:




          Worswick, P. J.




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