F|LED
4r22r2019
Court oprpea|s
Division l
State of llr"ilashington

lN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF VVASHINGTON,
No. 77597-9-l
Respondent,

DlVlSlON ONE
V.

CHEYANNE ARIE JARRELL, UNPUBL|SHED OPlNlON

Appellant. Fll_ED: April 22, 2019

 

LEAci-i, J. - Cheyanne Jarrel| appeals her conviction for second degree
manslaughter She contends that the prosecutor committed misconduct during
closing argument When discussing reasonable doubt and sentencing. Because
the prosecutor’s remarks did not misstate the law or the jury instructions, this
claim fails. We also reject Jarrell’s argument that the trial court abused its
discretion by declining to sentence her below the standard range due to her
youthfu|ness. We affirm.

FACTS

Cheyanne Jarrell cared for baby Kai|ynn While Kai|ynn’s parents worked.
Jarrell had her own child the same age as Kailynn. She Watched the two babies
at her mother’s house, Where she lived. On February 26, 2016, Kailynn’s mother

dropped her off With Jarrell as usual around 6:00 a.m. Kai|ynn seemed normal

NO. 77597-9-| /2

that day. But at some point, she stopped breathing Jarrell’s sister performed
CPR (cardiopulmonary resuscitation). Paramedics transported Kai|ynn to the
hospital. She had no external signs of injury but did have bilateral subdural
hemorrhage, diffuse cerebral edema, and retinal hemorrhage, all consistent with
abusive head trauma or shaking. ln spite of numerous medical interventions
over the next three days, Kai|ynn died.

The State charged Jarrell with first degree manslaughter At trial, the
State’s expert witnesses opined that abusive head trauma caused Kailynn’s
death. During his rebuttal to the defense’s closing argument, the prosecutor

discussed the burden of proof and sentencing:

And so don’t discount that modifier. That word
“reasonable” is there for a reason. lf you encounter an open
question in your discussion, if somebody says, yeah, well,
what about this? l would suggest that the proper test to
decide what to do with that question is to ask if that is
reasonable This alternative theory that’s being proposed, is
that reasonable? And look at the evidence and use your
common sense and ask yourself whether or not it’s a
reasonable question, a reasonable point of contention

Next l want to address a subject that l will admit is
difficult for me to figure out how to approach, and l can’t
come up with any better way to do it than just to deal with it
head on. And that’s to acknowledge the immense difficulty
that you may face in deciding this case, because you_all of
you are smart enough to recognize the implications of your
decision l'm sure you thought about it before l’m sure it’s
growing in your mind as you’re sitting here now, and it’s
going to continue to be in your minds as you discuss this
case.

You all are smart enough to know that whatever

decision you are about to make is going to have grave life-
altering consequences for someone, for Kailynn’s family who

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No. 77597-9-| /3

are grieving still, for the defendant, for her own family, and
for her own daughter. There is no avoiding it. That is the
difficult position that you are in, and l don’t envy it.

That being what it is, the jury instructions, the law that
the Court gave you does address that to a certain extent.
And it’s kind of built into the legal system, recognizing the
fact that there are difficult, life-altering decisions that are
made in the context of a criminal case, and this is certainly
one of those

Some of the last clauses in the very first instruction,
instruction Number 1, address it, and there are a couple
points to make here

One is_maybe this will come as something of a
relief, maybe not, but the instruction says you have nothing
whatever to do with any punishment that may be imposed in
case of a violation of the law.

You may not consider the fact that punishment may
follow conviction, except insofar as it may tend to make you
careful

The point is certainly recognize the fact that your
decision is going to have implicationsl lf you convict the
defendant, as l’m asking you to do, there will most certainly
be punishment There will most certainly be fallout and
implications and [e]ffect on her life and the people in her life
But that is not your decision to make, what that punishment
looks like Yourjob is more limited. lt’s more narrow.

You should consider it. lt should cause you to be
careful, which is what l started out by asking . . ., look
carefully at the evidence, consider the arguments of the
parties; but you can’t let it interfere with your view of the
evidence and your view of what has been proved in this
case.

Jarrell did not object to this argument
The jury acquitted Jarrell of first degree manslaughter and convicted her of
second degree manslaughter At sentencing, Jarrell asked the court for an

exceptional sentence below the standard range. She argued that because she

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NO. 77597-9-| /4

was only 22 years old at the time of Kailynn’s death, she lacked the capacity to
appreciate the wrongfulness of her conduct The trial court denied Jarrell’s
request and sentenced her to 27 months, the high end of the standard range
ANALYS|S

Prosecutorial l\/iisconduct

Jarrell challenges two parts of the prosecutor’s closing argument. First,
she contends that the prosecutor mischaracterized the burden of proof. Second,
she argues that the prosecutor improperly urged the jury to consider sentencing
during their deliberations

To prove prosecutorial misconduct, the defendant must show that the
prosecuting attorney’s conduct was both improper and prejudicial.1 if the
defendant does not object to the alleged misconduct at trial, the issue is usually
waived unless the misconduct was “‘so flagrant and ill-intentioned that it evinces
an enduring and resulting prejudice that could not have been neutralized by an
admonition to the jury.”’2 An appellate court reviews a prosecuting attorney’s
alleged improper remarks “in the context of the total argument, the issues in the
case, the evidence addressed in the argument and the instructions given to the
jury.”3 During closing arguments, a prosecutor may argue points of law that the

court has included in its jury instructions4

 

1 State v. Weber, 159 Wn.2d 252, 270, 149 P.3d 646 (2006).

2 Weber, 159 Wn.2d at 270 (quoting State v. Stenson, 132 Wn.2d 668,
719, 940 P.2d 1239 (1997)).

3 State V. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
4 State v. Sandova|, 137 Wn. App. 532, 540, 154 P.3d 271 (2007).

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No. 77597-9-| /5

Jarrell argues that the prosecutor’s discussion of reasonable doubt “left
the jury with the impression that so long as his interpretation of the evidence was
reasonable the State had met its burden.” “Arguments by the prosecution that
shift or misstate the State’s burden to prove the defendant’s guilt beyond a
reasonable doubt constitute misconduct.”5

in l___i_ng&y, the prosecutor improperly attempted to quantify the reasonable
doubt standard by comparing it to an incomplete jigsaw puzzle of the Seattle
skyline: “You could have 50 percent of those puzzle pieces missing and you
know it’s [a picture of] Seattle.”6 The prosecutor also improperly trivialized the
burden of proof by comparing it to everyday decision-making such as crossing a
sidewalk with a car approaching7 Finally, the prosecutor misstated the burden of
proof by telling the jury that its job was to “speak the truth.”8

Here, the prosecutor discussed the reasonableness aspect of the
reasonable doubt standard The prosecutor argued that when the jury
considered whether the State met its burden, it should use common sense to
decide whether a question about the evidence is reasonable Unlike the remarks
in Li_n_dgy, this argument does not quantify or trivialize the burden of proof. Nor
does it misstate the burden of proof. Rather, the prosecutor’s argument largely

tracks the jury instruction, which explains that “[a] reasonable doubt is one for

 

5 State v. Lindsay, 180 Wn.2d 423, 434, 326 P.3d 125 (2014).
: Lindsay, 180 Wn.2d at 434.

Llndsay, 180 Wn.2d at 436.
8 Lindsay, 180 Wn.2d at 436-37.

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NO. 77597~9-| /6

which a reason exists." The prosecutor merely argues that the jury apply the
“reasonable” modifier to reasonable doubt The remark was not improper. The
prosecutor was entitled to argue this point of law within the jury’s instructions,
and doing so did not shift the burden of proof.

Jarreli cites two cases from otherjurisdictions to support her argument in
People v. Centeno,9 the prosecutor contrasted the reasonableness of the
defense and prosecution theories in closing argument The court held that while
it is permissible to argue that the jury “may reject impossible or unreasonable
interpretations of the evidence,” the prosecutor impermissibly left the jury with the
impression that “so long as [the State’sj interpretation of the evidence was
reasonable the People had met their burden.”10 The closing argument here is
unlike Centeno. Centeno disapproved of an argument that the State met its
burden by providing a reasonable theory of the case. Here, the prosecutor asked
the jury to reject unreasonable questions about the evidence Centeno expressly
permits this argument

Jarrell also cites State v. Sappington.11 in that case the Kansas Supreme
Court disapproved of a closing argument asking, “[l]s it reasonable given that
evidence that we have that l\/larc Sappington is the one that did this? And l

suggest to you the answer is, yes, it is.”12 As in Centeno, Sappington

 

9 60 Cal. 4th 659, 338 P.3d 938, 180 Cal. Rptr. 3d 649 (2014).
10 Centeno, 60 Cal. 4th at 672.

11285 Kan. 176, 169 P.3d 1107 (2007).

12 Sappington, 285 Kan. at 182-83.

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No. 77597-9-| /7

disapproved of an argument that the State met its burden by presenting a
reasonable theory of the case. But, unlike in Sappington, here the prosecutor
did not argue that his own theory was reasonable Sapgington does not support
Jarrell’s argument The prosecutor did not improperly shift or mischaracterize the
burden of proof in closing argument

Jarreli next argues that the prosecutor improperly discussed sentencing
during closing argument “The question of the sentence to be imposed by the
court is never a proper issue for the jury’s deliberation, except in capital cases.”13
Here, the prosecutor’s closing argument merely echoed the court’s instruction to
the jury: “You have nothing whatever to do with any punishment that may be
imposed in case of a violation of the law. You may not consider the fact that
punishment may follow conviction except insofar as it may tend to make you
careful.” No error occurred.

Jarrell argues that we should reverse her conviction due to the cumulative
effect of improper argument by the prosecutor. Under the cumulative error
doctrine a defendant may be entitled to a new trial when cumulative errors result
in a trial that is fundamentally unfair.1“ Because we find no error in the

prosecutor’s argument, the cumulative error doctrine does not apply.

 

13 State V Bowrnan, 57 Wn. 2d 266, 271, 356 P. 2d 999 (1960).
14 State v. Emeg(, 174 Wn. 2d 741, 766 278 P. 3d 653 (2012).

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No. 77597-9-| /8

Sentencing

Jarrell argues that the trial court abused its discretion when declining to
deviate from the standard sentencing range Jarrell argues that the sentencing
court failed to consider her youthfulness as a mitigating factor.

A court has “complete discretion” in weighing mitigating factors related to
youth when sentencing.15 Reviewing courts cannot reweigh evidence on
appeal.16

Here, the court explicitly considered mitigating factors related to Jarrell’s

youth:

lt’s offered to this Court by the defense that, because
the defendant was 22 years of age that her brain was
insufficiently developed to appreciate the wrongfulness of
your conduct or to conform your conduct to the requirements
of the law.

l\/ls. Jarrell, l’m not persuaded by that argument
You're a mother yourself As l mentioned a few moments
ago, you quite capably cared for your own child. You knew
by your own admission, you said on your cross-examination,
you knew mishandling a child could cause serious injury or
death. You knew.

This Court does not find substantial and compelling
reasons to enter a mitigative sentence below the standard
range No legal grounds have been submitted to the Court to
go above the standard range either. So the Court will impose
a standard range sentence

 

15 State v. HOuStOn-Sconiers, 188 Wn.2d 1, 21, 391 P.3d 409 (2017).

16 state v. Remee, 187 wn.zd 420, 453, 387 P.3d 650, cert denied, 138
s. ct. 467 (2017).

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No. 77597-9-l / 9

Although Jarrell may disagree with how the court weighed the evidence we do
not reweigh the evidence on review. Jarrell does not claim the absence of
substantial evidence to support any of the court’s findings So we consider them
true on appeai.17 The court did not abuse its discretion when it sentenced Jarrell.

We affirm.
. / ,

WE CONCUR:

\/

 

17 Cowiche Canvon Conservancv v. Boslev, 118 Wn.2d 801, 808, 828
P.2d 549 (1992).

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