      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                     )       No. 74213-2-1
                                         )
                     Respondent,         )       DIVISION ONE
                                         )
       v.                                )
                                         )       UNPUBLISHED OPINION
CHRISTINA ELLEN BELLAH,                  )
                                         )
                     Appellant.          )       FILED: February 13, 2017
                                         )
       LEACH, J. — Christina Bellah appeals her conviction for trafficking in stolen

property. At trial, she maintained that she did not know the property was stolen

when she pawned it. She claims that a number of the trial court's rulings

prevented her from presenting this defense. We conclude that the trial court did

not abuse its discretion in denying Bellah's last-minute requests for a trial

continuance and travel funds to procure cumulative testimony. We also conclude

that the trial court did not abuse its discretion in prohibiting defense counsel from

stating that he had the privilege of representing an innocent person or arguing

that the jury's role is to protect individuals from the State. We do not consider

Bellah's other evidentiary challenge because she raises her argument supporting

admission for the first time on appeal. Accordingly, we affirm.
No. 74213-2-1 / 2



                                     FACTS

       In 2012, Bellah rented rooms in a house owned by resident-landlord Jodie

Spencer. The victim, Sandra Brown, also rented rooms in this house. In August,

at Spencer's request, Brown took Spencer's teenage daughter to the emergency

room. There, Spencer's daughter said that she wanted to kill herself. This

prolonged the hospital visit and resulted in the daughter's admission to a mental

hospital.   At first, Brown did not contact Spencer because she claims that

hospital personnel told her she was not allowed to call the mother without the

daughter's consent. About seven hours after Brown first took the daughter to the

hospital, Brown called Spencer. Spencer was angry and yelled at Brown and

threatened her.

       When Brown returned home, she discovered that someone had broken

into her room and taken her jewelry. Her dog was also missing.

       A few days later, Bellah pawned Brown's jewelry under the name Christina

Ginyard.1 According to Bellah, Spencer had told her the jewelry was Spencer's

and asked Bellah to sell it. A different witness testified that Bellah had come to

Spencer with Brown's jewelry box and suggested they pawn it and that Spencer

refused and told Bellah to put the jewelry back.

       On the Friday before trial was to begin, the defense claimed to have

      1 Bellah is the defendant's maiden name. Ginyard is a name from a
previous marriage.
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discovered two witnesses—Bellah's niece, Latisha Ferguson, and Bellah's

mother, Judy Brown2—who could corroborate Bellah's contention that Spencer

had asked Bellah to sell the jewelry. Judy lives in Arizona. On the Monday trial

was to begin, Bellah asked to continue the trial so Judy could travel to

Washington to testify. Bellah also asked for public funds for Judy's airfare. The

trial court refused both requests, finding that Judy's testimony was cumulative of

Ferguson's.

       Pretrial, the court granted the State's request to prohibit defense counsel

from (1)telling the jury he represented an innocent person and (2)stating that

the jury's role is to protect individuals from the State. The court also granted the

State's request to exclude evidence that Spencer had pleaded guilty to animal

cruelty for letting Brown's dog out of the house.

       The jury convicted Bellah of trafficking in stolen property.

                                    ANALYSIS

       Bellah claims that various rulings by the trial court violated her right to

present a defense. "Criminal defendants have a constitutional right to present a

defense under the Sixth Amendment to the United States Constitution and article

I, section 22 of Washington's constitution."3 But defendants do not have an

       2 Judy Brown is not related to Sandra Brown. To avoid confusion, we refer
to her as "Judy."
       3 State v. Morales, 196 Wn. App. 106, 122, 383 P.3d 539(2016), petition
for review filed, No. 93767-2(Wash. Oct. 27, 2016).
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No. 74213-2-1/4



absolute right to present evidence.4 "The defendant's right to present a defense

is subject to 'established rules of procedure and evidence designed to assure

both fairness and reliability in the ascertainment of guilt and innocence.'"5

       We review constitutional claims de novo, as questions of law.6 But we

review a trial court's decision to grant or deny a motion for continuance for abuse

of discretion.7 We use the same standard to review a trial court's decision to

restrict counsel's argument.5 A court abuses its discretion when it makes a

manifestly unreasonable decision or bases its decision upon untenable grounds

or reasons.9 A court bases its decision on untenable grounds or reasons when it

applies the wrong legal standard or relies on unsupported facts.19

                                Motion To Continue

       Bellah contends that the court abused its discretion when it denied her

request to continue her trial date. "[T]he decision to grant or deny a motion for a

continuance rests within the sound discretion of the trial court."11 An appellate

court will disturb a trial court's decision to deny a defendant's request for a

      "State   v. Lizarraga, 191 Wn. App. 530, 553, 364 P.3d 810 (2015), review
denied, 185 Wn.2d 1022(2016).
      5 Lizarraoa, 191 Wn. App. at 553 (quoting Chambers v. Mississippi, 410
U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed. 2d 297(1973)).
      6 State v. Jones, 168 Wn.2d 713, 719, 230 P.3d 576 (2010).
      7 State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004).
      8 State v. Perez-Cervantes, 141 Wn.2d 468, 475,6 P.3d 1160 (2000).
      9 State v. Gunderson, 181 Wn.2d 916, 921-22, 337 P.3d 1090 (2014).
      19 In re Det. of Duncan, 167 Wn.2d 398, 403, 219 P.3d 666 (2009).
       11 Downing, 151 Wn.2d at 272.
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No. 74213-2-1 /5



continuance only if she shows that she was prejudiced or that the result would

have likely been different had the motion been granted.12 No mechanical test

exists for determining "when the denial of a continuance violates due process,

inhibits a defense, or conceivably projects a different result."13 The court must

decide on a case-by-case basis.14 Appellate courts look at the totality of the

circumstances, particularly the reasons presented to the trial judge at the time

the request is denied.15 "In exercising discretion to grant or deny a continuance,

trial courts may consider many factors, including surprise, diligence, redundancy,

due process, materiality, and maintenance of orderly procedure."16 Because

Judy's testimony was cumulative of Ferguson's, the trial court did not abuse its

discretion in denying Bellah's motion for a continuance.

      Bellah requested the continuance so Judy could fly from Arizona to testify

in her defense. According to Bellah, both Judy and Ferguson were present when

Spencer told Bellah that the jewelry was Spencer's. Bellah claims that their

testimony was crucial to her defense because it provided favorable evidence

about whether Bellah knew that the jewelry was stolen. The court permitted


      12 State v. Eller, 84 Wn.2d 90, 95, 524 P.2d 242(1974); State v. Tatum, 74
Wn. App. 81, 86, 871 P.2d 1123 (1994); State v. Kelly, 32 Wn. App. 112, 114,
645 P.2d 1146 (1982).
      13 Eller, 84 Wn.2d at 96.
      14 Eller, 84 Wn.2d at 96.
      15 Kelly, 32 Wn. App. at 114-15.
      16 Downing, 151 Wn.2d at 273.
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No. 74213-2-1/6



Ferguson to testify but, concluding that Judy's testimony would have been

cumulative of Ferguson's, denied the continuance.

       Bellah contends that the court erred when it denied her the opportunity to

present Judy's testimony.17     Under ER 403, a court may exclude relevant

evidence if "its probative value is substantially outweighed. .. by considerations

of undue delay, waste of time, or needless presentation of cumulative evidence."

Thus, it is not error to exclude cumulative evidence.18 We agree that Judy's

testimony was cumulative of Ferguson's.        Judy's testimony would not have

offered different material evidence to corroborate Bellah's theory of innocence

and would have merely reaffirmed the exact same evidence supplied by

Ferguson's testimony. The only additional evidence that Judy might have offered

is a receipt to prove that she had visited the pawn shop with Bellah. But that

evidence is not probative of a material fact. It shows only that they visited the

pawn shop, which is not in dispute and is not probative of Bellah's knowledge or

belief about whether the jewelry was stolen.


      17  Bellah also asserts that the trial court erred in denying the continuance
because it wrongly concluded that Judy's testimony would be inadmissible
hearsay. But the court did not base its ruling on hearsay rules. Rather, the court
denied the continuance because it concluded that the testimony was cumulative
of the evidence Bellah sought to introduce through Ferguson. Even if the court
had erred in excluding Judy's testimony as hearsay, that error would be harmless
because of the cumulative nature of the testimony. Jones v. City of Seattle, 179
Wn.2d 322, 360, 314 P.3d 380 (2013)("An erroneous exclusion of evidence is
harmless where that evidence is merely cumulative.").
       18 Saldivar v. Momah, 145 Wn. App. 365, 396, 186 P.3d 1117 (2008).
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No. 74213-2-1 /7



       Bellah asserts that she needed Judy's testimony to bolster Ferguson's

credibility because Ferguson is Bellah's niece.      But, like Ferguson, Judy is

Bellah's relative, so her testimony is not necessarily more credible than

Ferguson's. Bellah also contends that Judy's testimony is more credible than her

niece's because Ferguson was only a teenager. But, at 17, Ferguson was nearly

a legal adult. Bellah cites no authority to show why her 17-year-old niece's

testimony is less credible than her adult mother's. Judy was to offer the exact

same testimony as Ferguson and because both witnesses are related to Bellah,

she provides no persuasive reason to think that Judy's testimony would be more

credible or helpful to the jury than Ferguson's.19

       Judy's testimony is cumulative because it is substantively the same as

Ferguson's and suffers from the same defects.            This mere cumulative,

corroborative testimony from a relative would not have made a difference to the

outcome here. The trial court did not err in denying a continuance.20 The trial




       19 Contra State v. Cayetano-Jaimes, 190 Wn. App. 286, 303, 359 P.3d
919 (2015) (where it was error to exclude "important testimony from a person
outside Cayetano-Jaimes's immediate family—testimony made more powerful
because the witness was the victim's biological mother").
       29 Eller, 84 Wn.2d at 96-97; see also Tatum, 74 Wn. App. at 87(where the
court committed legal error when it denied the defendant's motion for a
continuance to procure attendance of a material witness, but that error was
harmless because the testimony was merely cumulative corroborative testimony
by a friend).
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No. 74213-2-1 / 8



court's decision did not deprive Bellah of the right to present a defense or her

right to a fair trial.

                                    Travel Funds

        Bellah also claims the court erred in denying funds for Judy to travel to

Washington to testify. A trial court does not abuse its discretion in denying funds

for travel expenses under CrR 3.1(f) for a defense witness whose testimony

would have been cumulative and unnecessary.21 As discussed above, Judy's

testimony would have been cumulative of Ferguson's, and the court acted within

its discretion in denying the motion to continue to allow Judy to testify. Because

the court denied the continuance, it had no reason to grant funds for her to travel.

                            Limiting Defense's Argument

        Bellah contends that the trial court erred when it prohibited defense

counsel from making certain statements to the jury and jury venire. We review a

trial court's decision to restrict counsel's argument for abuse of discretion.22 As

explained below, the trial court did not abuse its discretion by prohibiting defense

counsel from stating that he had the privilege of representing an innocent person

or arguing that the jury's role is to protect individuals from the State.


        21State v. Kelly, 33 Wn. App. 541, 545, 655 P.2d 1202 (1982), rev'd on
other grounds by 102 Wn.2d 188, 685 P.2d 564 (1984).
       22 Perez-Cervantes, 141 Wn.2d at 475; see also State v. Yates, 161
Wn.2d 714, 747, 168 P.3d 359 (2007)(reviewing a trial court's ruling about the
scope of voir dire for abuse of discretion).
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No. 74213-2-1/ 9



       Precluding reference to Bellah as an "innocent woman"

        Bellah contends that the court abused its discretion when it prevented

defense counsel from saying, "I am Gabe Rothstein and I have the privilege of

representing an innocent man/woman." The State asserted that this kind of

statement is an improper personal opinion. The court agreed "to the extent [the

State is] objecting to vouching for a witness." But the court told defense counsel,

"I think you can certainly introduce yourself and let the jury know you have the

privilege of representing your client, who is presumed to be innocent."

        Bellah argues that the court should not have barred defense counsel from

introducing the defense's theory of the case in whatever manner he chose. But

trial counsel is not permitted to express a personal opinion as to the guilt or

innocence of an accused.23 Here, the court recognized the difference between a

statement that "my client is innocent" and a statement that my client "is presumed

to be innocent," the former being impermissible but the latter, permissible.

Accordingly, Bellah's counsel was not prohibited from introducing the theory of

innocence, merely from expressing a personal opinion about her innocence.




        23 State v. Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984); RPC 3.4(e)
(An attorney shall not "state a personal opinion as to the justness of a cause, the
credibility of a witness, the culpability of a civil litigant or the guilt or innocence of
an accused.").
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No. 74213-2-1 / 10



        Bellah attempts to distinguish this case from the State's authority, State v.

Reed.24 Bellah asserts that Reed is inapposite because it involved improper

statements by a prosecutor, as opposed to defense counse1.25 We note that,

unlike criminal defense attorneys, prosecutors are quasi-judicial officers and are

presumed to act impartially; thus, their opinion has the danger of carrying

particular weight with the jury.26 Still, the prohibition on expressing personal

opinions on guilt or innocence of the accused to the jury extends to all trial

counsel, not just prosecutors.27      Barring defense counsel from making this

statement is consistent with the law and did not prevent defense counsel from

stressing that every defendant is presumed innocent until proved guilty. The trial

court did not abuse its discretion in limiting how defense counsel introduced the

defense of innocence to the jury.

        Precluding statements that the jury's role is to protect individuals from the

State

        Bellah also contends that the trial court should not have precluded

defense counsel from arguing that the jury's role is to protect individuals from the

State. The State claims that is an improper argument for jury nullification.

         102 Wn.2d 140, 684 P.2d 699(1984).
        24
             Reed, 102 Wn.2d at 145.
        25 See
      26 Reed, 102 Wn.2d at 146-47.
      27 State v. Badda, 63 Wn.2d 176, 180, 385 P.2d 859 (1963) ("[N]either
counsel should declare his personal opinion as to the guilt or innocence of the
accused."); RPC 3.4(e).
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No. 74213-2-1 / 11



Defendants are not entitled to a jury nullification instruction.28 Consequently,

defendants are not entitled to instructions that the jury "may" convict on the

evidence.29 Telling the jury it "may" convict "is equivalent to notifying the jury of

its power to acquit against the evidence."30 The State does not provide authority

to show that the excluded statement in this case has the same practical effect as

arguing for jury nullification.31 We decline to follow the State's reasoning and

extend the prohibition on jury nullification arguments to the facts of this case.

       But we find no error because the court has discretion to control the scope

of the opening and closing remarks and the scope of voir dire.32 Further, counsel

must confine statements on the law to the law as stated in the court's

instructions.33 Telling the jury that its role is to protect individuals from the State

conflicts with the court's instruction that the jury's duty is to decide the facts in the

case and apply the law from the court's instructions. The court did not abuse its




       28 State v. Bonisisio, 92 Wn. App. 783, 794, 964 P.2d 1222(1998).
       29 Bonisisio, 92 Wn. App. at 794; State v. Meggvesy, 90 Wn. App. 693,
699, 958 P.2d 319 (1998), abrogated on other grounds by State v. Recuenco,
154 Wn.2d 156, 110 P.3d 188 (2005).
       30 Bonisisio, 92 Wn. App. at 794.
       31 See Meggvesy, 90 Wn. App. at 699.
       32 Yates, 161 Wn.2d at 747; Perez-Cervantes, 141 Wn.2d at 474-75
(quoting Herring v. New York, 422 U.S. 853, 862, 95 S. Ct. 2550, 45 L. Ed. 2d
593(1975)); State v. Kroll, 87 Wn.2d 829, 834, 558 P.2d 173(1976).
       33 Perez-Cervantes, 141 Wn.2d at 474-75 ("[A]rgument by counsel must
be restricted to the facts in evidence and the applicable law, lest the jury be
confused or misled.").
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No. 74213-2-1/ 12



discretion when it precluded defense counsel from telling the jury its role is to

protect individuals from the State.

                    Excluded Evidence of Spencer's Conviction

       Bellah claims that the court should have permitted her to introduce

evidence of Spencer's conviction of animal cruelty involving Brown's dog and that

its failure to do so denied her constitutional right to present a defense.

       The State responds that this court should not consider the issue because

Bellah offered a reason for admission of the evidence to the trial court different

from the one she offers this court. Absent manifest constitutional error, this court

generally does not consider arguments raised for the first time on appea1.34 At

trial, the defense argued that Spencer's conviction was relevant because it

showed that Bellah did not have anything to do with the disappearance of

Brown's dog.        The defense asserted that evidence about the dog's

disappearance would prejudice the jury against Bellah because it might

sympathize with the dog. Bellah did not renew this argument on appeal. Rather,

she now claims that the evidence is relevant because it corroborates her version

of events. Thus, while Bellah did object to the exclusion of this evidence below,

the basis for that objection is quite different from the one she now asserts.

         34 RAP 2.5(a)(3); State v. Haves, 37 Wn. App. 786, 790, 683 P.2d 237
(1984) ("It is well settled that objections raised on appeal to the admission of
evidence will not be considered unless based upon the same ground asserted at
trial."). •
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No. 74213-2-1/13



Therefore, we will not consider her new argument absent manifest constitutional

error.

         To establish manifest constitutional error, Bellah "must identify a

constitutional error and show how, in the context of the trial, the alleged error

actually affected [her]; it is this showing of actual prejudice that makes the error

'manifest', allowing appellate review."35 A defendant has no constitutional right to

present irrelevant evidence.36 Evidence is relevant when it has "any tendency to

make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence."37

In other words, to meet this threshold test for admissibility, the evidence must be

both probative and materia1.38

         Bellah contends the evidence of Spencer's conviction has relevance

because it tends to show that Spencer, and not Bellah, took the jewelry because

the dog and the jewelry went missing at the same time. This evidence, Bellah

asserts, corroborates her claim that Spencer took the jewelry and gave it to

Bellah to sell. But evidence of Spencer's animal cruelty conviction does not tend

to show that Bellah did not know the jewelry was stolen, the fact on which her

       35 State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995)
(quoting State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492(1988)).
       36 Jones, 168 Wn.2d at 720.
       37 ER 401.
       35 5 KARL B. TEGLAND, WASHINGTON PRACTICE:          EVIDENCE LAW AND
PRACTICE § 401.3, at 253-54 (6th ed. 2016).
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No. 74213-2-1/ 14



defense depends. Bellah's argument for relevance fails because, while evidence

of Spencer's conviction might be probative of who took the dog (and perhaps the

jewelry), that evidence provides no help in deciding Bellah's guilt on the

trafficking charge. Bellah fails to show that the evidence is material and thus fails

to establish its relevance. As a result, she fails to show a manifest constitutional

error, and we do not consider this issue.

                                  Cumulative Error

         Bellah contends that even if the claimed errors were, by themselves,

harmless, their cumulative effect denied her a fair trial. As explained above,

Bellah has not established any error. Therefore, her claim of cumulative error

fails.

                                   CONCLUSION

         We hold that the trial court did not abuse its discretion when it denied the

motion to continue and request for travel funds or when it imposed limitations on

defense counsel's arguments. Because Bellah does not show manifest




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No. 74213-2-1/15



consitutional error with regard to her remaining evidence claim, we do not

consider her arguments made for the first time on appeal. We affirm.




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WE CONCUR:



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