 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                    No. 71669-7-1
                      Respondent,
                                                    DIVISION ONE                       r      §§
                                                                                       cr     rri
                 v.

                                                    UNPUBLISHED OPINION                 '    ^J>
TIMOTHY GREG O'HAVER,                                                                        >>~Qrr.


                      Appellant.                    FILED: July 7, 2014               Vr     o co
                                                                                      jr-    "~lo



       Trickey, J. — The exclusion of irrelevant evidence does not bar an accused

from the constitutional right to present a defense. Here, the trial court instructed

the jury on self-defense and permitted the defendant to present evidence of the

circumstances surrounding the incident to support his theory of self-defense. The

trial court did not err in its evidentiary rulings or in its refusal to grant a new trial.

Accordingly, we affirm.

                                         FACTS


       Timothy O'Haver came home from work. He and his wife consumed several

drinks of vodka and juice. After a couple of hours, they began arguing.1 During
the argument, O'Haver grabbed his wife and sprayed her with the hose from the

kitchen sink. She slipped on the water and fell to the floor.2 The wife ran out of

the house.

       The neighbor next door, and his friends John Hoover and John Humen,

witnessed O'Haver chasing his wife outside. The wife either fell or O'Haver pushed

her down.3 O'Haver then struck his wife, although the accounts varied whether he


14 Report of Proceedings (RP) at 197, 224.
2 4 RP at 231.
3 4 RP at 247, 272; 5 RP at 345.
No. 71669-7-1/2


did so with an open hand or a fist.4 O'Haver grabbed his wife and went back into

their home, closing the door.5

          The three continued to hear screaming coming from the O'Haver house.

The neighbor entered the house through a back door.6 The neighbor testified that

he distracted O'Haver by insulting him in an attempt to get O'Haver to focus on

him so that the wife could escape.7 The wife leftand O'Haver pushed the neighbor.

When O'Haver grabbed a gun, the neighbor fled to his house with O'Haver running

behind him.8

          The neighbor called for his wife to get the "old lady," a term used by the
neighbors for their gun in the event of an emergency.9 The neighbor's wife
retrieved the gun and gave it to her husband.10 O'Haver testified that he was aware
of the neighbors' code for their gun and that he feared for his wife's safety. The
wife told O'Haver that she was in the house on her own free will and told him to go

home and sleep it off.11

          O'Haver banged on the neighbor's front door with a baseball bat trying to
get inside. In the process, he broke the door. O'Haver also attempted to enter
through windows around the house while shouting for his wife.12 O'Haver testified
that he ran back to his house to retrieve his guns13 when the neighbor threatened


4 4 RP at 272; 5 RP 349.
55   RP   at   347.
65   RP   at   349.
75   RP   at   352.
85   RP   at   355-56.
9 5 RP at 302, 355.
10 5 RP at 356.
11 5 RP at 304.
12 5 RP at 307.
 13 O'Haver owned two handguns and a shotgun. 4 RP at 197.
No. 71669-7-1/3


to shoot him through the door. O'Haver reached through the broken front door

hitting the neighbor with his gun.14

         The police arrived at the scene. Both parties dropped their weapons. The

police arrested O'Haver. The State introduced evidence of the neighbor's broken

door and the broken baseball bat.

         The State charged O'Haver with four counts of assault, but a jury found him

guilty of only two: second degree assault of the neighbor and a lesser included
count of fourth degree assault of the wife. O'Haver appeals alleging multiple

evidentiary errors.

                                       ANALYSIS


Exclusion of Evidence

         O'Haver contends that the trial court violated his constitutional right to

present a defense when it excluded evidence that both his neighbor and his wife
had committed prior acts of violence. He argues that this evidence corroborated
his account that he feared both of them and was therefore acting in self-defense.

         Both the Sixth Amendment of the federal constitution and article I, section

22 of the Washington Constitution guarantee an accused the right to present a
defense. State v. Jones, 168 Wn.2d 713, 230 P.3d 576 (2010). However, this

right is not absolute; a defendant does not have the right to introduce evidence
that is irrelevant or otherwise inadmissible. State v. Stacy,     Wn. App.     , 326

P.3d 136, 143 (2014) (citing State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651
(1992)). "Evidence is relevant if it has any tendency to make any fact that is of


14
     5 RP at 359.
No. 71669-7-1/4



consequence to the case more or less likely than without the evidence." State v.

Mee Hui Kim, 134 Wn. App. 27, 41, 139 P.2d 354 (2006) (citing State v. Thomas,

150 Wn.2d 821, 857, 83 P.3d 970 (2004); ER 401).

       In general, evidence of a person's character is inadmissible to prove

"conformity therewith on a particular occasion."       ER 404(a).     However, an

exception to this rule provides that "[ejvidence of a pertinent trait of character of

the victim of the crime offered by an accused" is admissible. ER 404(a)(2). Thus,

where a defendant asserts self-defense, evidence of the victim's violent disposition

is a pertinent character trait because it is relevant to the question of whether the

victim acted in conformity with his or her character by provoking the incident as the

first aggressor. State v. Alexander, 52 Wn. App. 897, 900, 765 P.2d 321 (1988);
United States v. Keiser, 57 F.3d 847, 853-54 (9th Cir. 1995). Evidence offered for

this purpose is subject to the restrictions set forth in ER 404 and 405. Only the
victim's reputation for violence is admissible; specific acts ofviolence are not. ER
405(a), (b); Alexander, 52 Wn. App at 901. O'Haver did not seek a first aggressor

instruction and none was given.

       Evidence regarding the victim's violent character may also be relevant to

show the defendant's state of mind; in other words, the reasonableness of his or

her beliefthat the use of force was necessary in self-defense. State v. Dyson, 90

Wn. App. 433, 438-39, 952 P.2d 1097 (1997) ("To establish self-defense, a
defendant must produce evidence showing that he or she had a good faith belief
in the necessity offorce and that that belief was objectively reasonable."). Under
those circumstances, because the character evidence is used to show state of
No. 71669-7-1/5


mind rather than to show the victim acted in "conformity therewith," the restrictions

of ER 404 and 405 do not apply. Keiser, 57 F.3d at 853. Evidence of specific acts

is admissible provided the defendant was aware of the acts at the time. State v.

Walker, 13 Wn. App. 545, 549-50, 536 P.2d 657 (1975).

       At trial, the State objected to O'Haver's testimony that his wife had struck

him during a prior incident in 2007.15 O'Haver submitted an offer of proof that the
incident with his wife occurred during a stressful time while the parties were in the

midst of a foreclosure. Alcohol also played a part in that incident. O'Haver woke

up the next morning with a red eye.16 Because the 2007 incident was supported
only by O'Haver's testimony, with no independent witnesses, no history of
restraining orders or domestic violence orders entered against either party and
occurred over five years ago, with no charges filed, the court found the evidence
remote, unreliable, and insufficient to establish a claim of self-defense for this
particular incident.17
        O'Haver then argues that the trial court erred in preventing him from
testifying about his wife being fired from her crossing-guard job because she
allegedly smashed a window of a car whose driver failed to follow her directions.18
He argues that the evidence was admissible under ER 404(b) to show her
quarrelsomeness19 and thus her propensity for violence.20 Because O'Haver was



15 6 RP at 455.
16 6 RP at 464.
17 6 RP at 460-61, 480.
 18 6 RP at 465-66.
 19 6 RP at 464-65.
 20 6 RP at 466.
No. 71669-7-1/6


not the object of that incident, the court found the evidence irrelevant and

prejudicial.21 The court did not err in finding the evidence inadmissible.

       O'Haver also related, in his offer of proof, testimonial evidence of various

scenarios demonstrating the neighbor's propensity to become violent. O'Haver

related two instances in which the neighbor illegally discharged a gun in the

neighborhood.22 O'Haver did not witness either incident.23 The neighbor also told
O'Haver that he had killed a man but did not supply any specific details; however,

O'Haver admitted that he did not fully believe itto be true.24 O'Haver next asserted

that his neighbor described himself as having an inability to control himself when
aroused by the sight of blood.25 This "blood lust" allegedly caused the neighbor to
viciously beat another person.

       The court found the statements unreliable and not supportive of a claim of

self-defense. O'Haveralso related an incident in which the neighbor had a reaction

with the medication he was taking that caused him to become violent with his
spouse one night.26 No expert testimony was presented or offered to substantiate
the claim that the neighbor's medication caused him to be violent. Finding that
O'Haver had not established a foundation, the court ruled the evidence

inadmissible. The court specifically stated that its ruling did not limit O'Haver from




21 6 RP at 480.
22 6 RP at 467.
23 6 RP at 469, 476.
24 6 RP at 472.
25 6 RP at 472-73.
26 6 RP at 476.
No. 71669-7-1/7


testifying regarding any apprehension or fear that he experienced at the time of

the incident to support his self-defense argument.27

   Defense counsel filed a motion for reconsideration regarding the court's denial.

After hearing oral argument, the court reiterated its ruling with regard to the acts of
the wife, that the 2007 incident was remote, and that the allegation that she broke

a car windshield did not establish a reputation for violence in the community.28
       With regard to the allegations of the neighbor's violent persona, the court

found no indicia of reliability that could create a subjective intent on the part of
O'Haver to create apprehension and fear. This was particularly true, here, where
O'Haver testified that he returned to his home to retrieve his pistol and shotgun.

Additionally, O'Haver's alleged fear for his wife is contradicted by the testimony
that the wife said she was there on her own free will and that she clung to the

neighbor's spouse.       Under these facts, the trial court properly found no
corroborating circumstances existed to show that these past instances would
support O'Haver's theory that his wife was abducted.
        O'Haver's reliance on State v. Wanrow, 88 Wn.2d 221, 224, 559 P.2d 548

(1977) for support that the evidence should have been admitted here is misplaced.
The court in Wanrow involved instructional error where the jury was misadvised as

to the particular circumstances it could consider in reaching a decision. As stated
in Statev.Martin, 169 Wn. App. 620, 628-29, 281 P.3d 315 (2012), review denied,
176 Wn.2d 1005, 297 P.3d 68 (2013):

        Thus, where a defendant claims self-defense, courts have admitted
        evidence ofa victim's prior acts ofviolence to establish a defendant's

 27 6 RP at 484.
 28 7 RP at 572.
No. 71669-7-1/8


       reason for apprehension and the basis for acting in self-defense.
       fState v. Cloud, 7 Wn. App. 211, 218, 498 P.2d 907 (1972).] But in
       self-defense cases, "[sjpecific act character evidence relating to the
       victim's alleged propensity for violence is not an essential element of
       self-defense." fState v. Hutchinson, 135 Wn.2d 863, 887, 959 P.2d
       1061 (1998).pi

       Here, the court permitted general references to the volatile spousal

relationship. O'Haver testified that he sprayed his wife with water to calm her down

after she had attacked him. O'Haver additionally testified that his neighbor entered

his home uninvited and taunted him to support his objective belief that he needed

to defend himself. The court was correct in ruling that any evidence of misconduct

the night of the incident was admissible. The court instructed the jury on self-

defense and no duty to retreat.30

       O'Haver had an opportunity to fully present his theory of the case that he

acted out of fear for himself and fear for his wife. The excluded evidence did not

violate O'Haver's right to present a defense. The State argues that O'Haver was

not entitled to a self-defense instruction, but fails to cross-appeal the court's giving

that instruction. Accordingly, we will not address the State's argument.

Mistrial

       O'Haver moved for a mistrial contending that the trial court alerted the jury

to O'Haver's custodial status. This court reviews a trial court's denial of a motion

for a mistrial under an abuse of discretion standard and will only grant a new trial

when a "defendant has been so prejudiced that nothing short of a new trial can

insure that the defendant will be tried fairly." State v. Lewis, 130 Wn.2d 700, 707,



29 (Alteration in original.)
30 Clerk's Papers (CP) at 152.


                                           8
No. 71669-7-1/9


927 P.2d 235 (1996). This court reviews alleged violation ofthe right to an impartial
jury and the presumption of innocence de novo. State v. Johnson, 125 Wn. App.
443, 457, 105 P.3d 85 (2005). Curative instructions can sufficiently overcome any

prejudice that might have otherwise arisen from inadvertent observations of a
defendant in shackles. State v. Rodriguez. 146 Wn.2d 260, 270, 45 P.3d 541

(2002). When an error can be cured by a curative instruction, a defendant waives
the error by failing to request such an instruction. Rodriguez. 146 Wn.2d at 271.
Here, the court simply asked the officer, who had been attending court every day,
whether he would be there at 9:00 a.m. This is not sufficient to conjure up the

image of custody. The court denied the motion for mistrial; but in an abundance
of caution, offered to give a curative instruction which O'Haver rejected.31
          O'Haver's reliance on State v. Gonzalez, 129 Wn. App. 895, 120 P.3d 645

(2005) is misplaced. There, the trial court informed the jury that the defendant was
in jail because he could not post bail, was being transported in restraints, and
would be under guard in the courtroom. Gonzalez, 129 Wn. App. at 899. The
facts here are simply not that egregious. Any prejudice that may have resulted
from the jury's knowledge of O'Haver's custodial status is unlikely to have impacted
the outcome of his trial. The trial court did not abuse its discretion.

 ER 404(b)

          Prior to trial, O'Haver moved to exclude evidence of other crimes that had
 been prosecuted. The State responded that it was not seeking to admit any prior
 bad acts under ER 404(b). At trial, John Hoover, one of the witnesses who testified


 31
      8 RP at 649.
No. 71669-7-1/10


that he saw O'Haver strike his wife, stated that the neighbor said, "I can take care

of this. This is my neighbors, and they've done this before."32 The next day the

prosecutor brought Hoover's testimony to the attention of the court because it

violated the motions in limine.33 Because a curative instruction would call the jury's

attention to it, defense counsel told the court it would not request one.34
       The erroneous admission of ER 404(b) evidence is harmless absent a

reasonable probability that the error materially affected the outcome of the trial.
State v. Halstien, 122 Wn.2d 109,127, 857 P.2d 270 (1993). "Improper admission

of evidence constitutes harmless error if the evidence is of minor significance in

reference to the evidence as a whole." State v. Neal, 144 Wn.2d 600,611, 30 P.3d

1255 (2001). Unlike the cases cited by O'Haver, where the admission of prior bad
acts may have led jurors to convict based on propensity given the lack of other
credible evidence, here, it is unlikely that this single vague reference to O'Haver's
previous combative conduct would affect the verdict, particularly given the
additional ample evidence of guilt, i.e., the wife's bruising, the broken bat, the
broken door, and the use of the guns. See State v. Escalona. 49 Wn. App. 251,

254-55, 742 P.2d 190(1987).

       O'Haver fails to establish that the testimony amounts to a serious trial

irregularity requiring a mistrial. "An irregularity in trial proceedings is grounds for
reversal when it is so prejudicial that it deprives the defendant ofa fair trial." State
v. Condon. 72 Wn. App. 638, 647, 865 P.2d 521 (1993). To determine whether a



32 4 RP at 273.
33 5 RP at 292-93.
34 5 RP at 293.


                                          10
No. 71669-7-1/11


trial irregularity deprived a defendant of a fair trial, a reviewing court considers the

following factors: "(1) the seriousness of the irregularity, (2) whether the statement

in question was cumulative of other evidence properly admitted, and (3) whether

the irregularity could be cured by an instruction to disregard the remark, an

instruction which a jury is presumed to follow." Escalona. 49 Wn. App. at 254

(citing State v. Weber. 99 Wn.2d 158, 165-66, 659 P.2d 1102 (1983)). A reviewing

court views claims of prejudice "against the backdrop of all the evidence."

Escalona, 49 Wn. App. at 254.

       While a violation of an order in limine is considered a serious trial

irregularity, not all violations oforders in limine have been held to be so serious as
to deprive the defendant of a fair trial. See State v. Thompson. 90 Wn. App. 41,
46-47, 950 P.2d 977 (1998) (remark "was sufficiently serious because it violated a
motion in limine," but "not so egregious as to deny ... a fair trial"); Condon, 72 Wn.

App. at 649-50. In Condon, the State's witness twice testified that the defendant
had been in jail despite an order in limine excluding such evidence, but the court
held that while the remarks had the potential for prejudice, they were not so serious

to warrant a mistrial. Condon, 72 Wn. App. at 648-50. The court noted that the

reference to being in jail was ambiguous and did not necessarily indicate a
propensity to commit the crime charged, nor did it necessarily mean that the
defendant had been convicted of a crime. Condon, 72 Wn. App. at 649. The court

also noted that the curative instruction alleviated any resulting prejudice, and that

unlike in Escalona, it was not a "close case," as the evidence against Condon was

strong. Condon, 72 Wn. App. at 650 n.2.



                                           11
No. 71669-7-1/12


       Viewed in context and against the backdrop of all the evidence, Hoover's

remark was likewise not so serious as to deprive O'Haver of a fair trial. While no

curative instruction was given and, in fact, as noted above, was specifically not

requested, the remark was sufficiently vague about what incident was being

described and even if O'Haver was committing a crime. At most, the jury could

infer he was involved in marital discord, but that was obvious from other testimony.

Thus, as in Condon, the improper remark was ambiguous enough that it did not

necessarily suggest a propensity to commit the crime charged. The remark did

not warrant a new trial.

Prosecutorial Misconduct

       O'Haver argues that he was unfairly prejudiced by the prosecutor's

statement that he had to check with his "victim advocate" before determining

whether he had any redirect questions for Hoover.35 In response to the court's

question "who," the prosecutor indicated that the advocate in this instance was his

notes, a piece of paper.36 The prosecutor then asserted that he had no further

questions. O'Haver did not object to the statement.

       Prosecutorial misconduct requires a showing that the prosecutor's conduct

was both improper and prejudicial in the context of the entire record and

circumstances at trial. State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681

(2003) (citing State v. Stenson. 132 Wn.2d 668, 718, 940 P.2d 1239 (1997)).

Prejudice is established if there is a substantial likelihood the misconduct affected
the jury's verdict. Where no objection is made to the remarks, the reviewability of


35 4 RP at 283.
36 4 RP at 283-84.


                                         12
No. 71669-7-1/13


the alleged misconduct depends on whether the prosecutor's conduct was "'so

flagrant and ill-intentioned"' as to create prejudice that could not be negated by a

curative instruction. State v. Warren, 165 Wn.2d 17, 43, 195 P.3d 940 (2008)

(quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)).

       O'Haver contends that this comment was in fact a statement about the

victim Hoover's testimony and its credibility.         O'Haver's arguments are

unpersuasive. The defendant must make a plausible showing that the error "had
practical and identifiable consequences [at] trial." State v. Lynn. 67 Wn. App. 339,
345, 835 P.2d 251 (1992). The prosecutor's nonsensical comment was not a

comment on Hoover's truthfulness. This is particularlytrue here because the jury

returned a not guilty finding to the assault charge with Hoover as the victim.

Officer Welsh's Testimony

       Officer Welsh testified that he was working another sector that evening.37
In response toa query of whether police were permitted to go into different sectors,
Officer Welsh replied affirmatively, "Given the nature ofthe call, often very violent
crimes, we cross boundaries just to help out because oftentimes it takes more than
two or three officersto take care of a serious incident."38 When asked if he recalled

why he was called out, Officer Welsh responded:
       Ido. It was supposed to be a domestic violence incident involving a
       weapon with someone actively pursuing another party attempting to
       possibly harm them.[39]




37 4 RP at 159.
38 4 RP at 159.
39 4 RP at 159-60.


                                         13
No. 71669-7-1 /14


       Upon arriving at the scene, neighbors told him that "they heard loud verbal

arguing, yelling coming from the north."40 Officer Welsh continued in that direction

and heard someone saying '"come out' and something to the fact of 'I was going

to kill you' or Tm going to kill you.'"41 Officer Welsh saw a suspect, later identified

as O'Haver, with his right leg raised as though he had just kicked the door.42
Officer Welsh also observed a black semiautomatic handgun in O'Haver's right

hand.43 When asked whether he identified himself, Officer Welsh responded:

       Idid. At this point itwas -- like I said, this was a very serious incident.
       Witnesses have already stated that someone is attempting to take a
       life. My views from on scene, very aggressive, holding a firearm,
       pointing it in the direction of possible victims. It was a very serious
       incident.!44'

             At that point, we're not required to identify ourselves before
       we take action. At that point I had already drawn down on the
       suspect.

Officer Welsh further testified, without objection, that he had drawn his gun

because

       it's a very serious incident. We have a person attempting to -
       possibly attempting to take another life, witness statements already
       indicating that that's what the scenario was before we arrived, and
       that those parties were able to be separated.'451
       On appeal, O'Haver argues for the first time that Officer Welsh's testimony
was an opinion of O'Haver's guilt. O'Haver's reliance on State v. Kirkman, 159
Wn.2d 918, 928,155 P.3d 125 (2007) is misplaced. There, the defendants claimed



40 4 RP at 160.
41 4 RP at 164.
42 4 RP at 164.
43 4 RP at 165.
"4 RP at 165-66.
454RPat166.


                                           14
No. 71669-7-1/15


for the first time on appeal that testimony by detectives and a physician constituted

improper opinion evidence regarding victim credibility. The Kirkman court held that

testimony of an investigating officer does not necessarily give rise to a manifest

constitutional error where there has been no objection at trial. 159 Wn.2d at 938.

As noted by Kirkman. 159 Wn.2d at 936:

       Admission of witness opinion testimony on an ultimate fact, without
       objection, is not automatically reviewable as a "manifest"
       constitutional error.    "Manifest error" requires a nearly explicit
       statement by the witness that the witness believed the accusing
       victim.


In Kirkman. as here, the jurors received instructions that they were not bound by

witness opinions, but were to form their own opinion as to credibility.46 Kirkman,
159 Wn.2d at 937. O'Haver likewise fails to establish prejudice.

       In determining whether statements are impermissible opinion testimony,

courts consider the circumstances of the case, the type of witness, the nature of

the testimony, the nature of the charges, the type of defense, and other evidence
before the trier of fact. State v. King, 167Wn.2d234, 331-33,119P.3d642(2009).

While it is true that an officer's testimony carries a special aura of reliability, here,

the testimony did not constitute an opinion on O'Haver's guilt. The officer was
merely recounting inferences of fact-based observations. See State v. Blake, 172
Wn. App. 515, 525-26, 298 P.3d 769 (2012) (testimony that includes inferences of
fact-based observations admissible), review denied. 177 Wn.2d 1010, 302 P.3d

180(2013).




46 CP at 125.


                                           15
No. 71669-7-1/16


        In sum, Officer Welsh's testimony did not comment on the guilt or innocence

of O'Haver and thus did not invade the province of the jury.

Recorded Recollection

        The wife testified that she was confused and scared and just wanted to be

left alone the night of the incident. She did not remember having a conversation

with Officer Welsh and did not remember giving the police statements about the

events.47

            Because the wife testified she could not recall what she had said to the

officer, the court admitted Officer Welsh's police report as a recorded recollection

of what the wife had told him.48 ER 803(a)(5) provides an exception to the hearsay

rule for recorded recollections where such recorded recollection is

        [a] memorandum or record concerning a matter about which a
        witness once had knowledge but now has insufficient recollection to
        enable the witness to testify fully and accurately, shown to have been
        made or adopted by the witness when the matter was fresh in the
        witness'[s] memory and to reflect that knowledge correctly. If
            admitted, the memorandum or record may be read into evidence but
            may not itselfbe received as an exhibit unless offered by an adverse
            party.

            The court's determination that the statement was admissible was correct.

However, Officer Welsh's testimony varied from the report and O'Haver objected.49

The particular statement that O'Haverobjected to was the description that O'Haver

threw his wife down, rather than held his wife down.50 When the jury returned, the

court sustained O'Haver's objection regarding Officer Welsh's description of the



47 4   RP   at   210.
48 5   RP   at   318-19.
49 5   RP   at   330.
50 5   RP   at   331-32.


                                             16
No. 71669-7-1/17


alleged victim being thrown against the cabinets.51 The court struck the testimony

and directed the jury to disregard the comment as it was not an accurate rendition

of what was said.52 Officer Welsh testified thereafter by reading directly from his

written report.

       Decisions regarding evidentiary issues lie within the sound discretion of the

trial court and will not be disturbed absent a showing of an abuse of discretion.

State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997). Thus, under ER

803(a)(5), an audio recording has been held admissible where the proponent

demonstrates:


       (1) the record pertainsto a matter about which the witness once had
       knowledge, (2) the witness has an insufficient recollection of the
       matter to provide truthful and accurate trial testimony, (3) the record
       was made or adopted by the witness when the matter was fresh in
       the witness's memory, and (4) the record reflects the witness's prior
       knowledge accurately.

State v. White. 152 Wn. App. 173, 183, 215 P.3d 251 (2009).              The fourth
requirement can be satisfied with the "witnesses] direct averment of accuracy at
trial." State v. Alvarado, 89 Wn. App. 543, 551, 949 P.2d 831 (1998). A witness

need not swear or sign under penalty of perjury the accuracy of the statement.
See State v. Nava, 177Wn. App. 272, 274, 311 P.3d 83 (upholding the admission
of a witness's unsworn tape-recorded statement as a recorded recollection, even

in the face of the witness's disavowal), review denied, 179 Wn.2d 1019, 318 P.3d

279(2013).




51 5 RP at 335.
52 5 RP at 335-36.


                                         17
No. 71669-7-1/18


       The trial court did not err in admitting the recollection. On the stand, the

wife repeatedly denied making statements to the officer, responding "[n]o" to the

following questions:

       Q. Do you remember giving them statements about what happened?
       A. No.
       Q. Do you ever remember asking them not to arrest your husband?
       A. No.

       Q. Do you remember talking to [Opcer Jimmy Welsh that night
       about what happened?
       A. N0J53]

The trial court did not abuse its discretion infinding that the foundation for admitting

the evidence was satisfied.

       O'Haver's argument that Officer Welsh's embellishment of the report in his
initial testimony is not persuasive because the court struck Officer Welsh's
inaccurate response to the question and the court properly instructed the jury to
disregard that testimony. Ajury is presumed to follow the directions of the court,
so no harm was present. State v. Gamble, 168 Wn.2d 161, 178, 225 P.3d 973
(2010).

Cumulative Error

       O'Haver argues that cumulative error denied him a fair trial. We disagree.
While some errors "standing alone, might not be of sufficient gravity to constitute
grounds for a new trial, the combined effect of the accumulation of errors" may
require a new trial. State v. Coe. 101 Wn.2d 772, 789, 684 P.2d 668 (1984).
Because no prejudicial error occurred, the cumulative error doctrine is not
applicable to this case. State v. Greiff. 141 Wn.2d 910, 929, 10 P.3d 390 (2000).

53 4 RP at 210.


                                           18
No. 71669-7-1/19


Statement of Additional Grounds

      O'Haver filed a statement of additional grounds asserting that there were

multiple abuses of discretion by the trial court regarding prosecutorial misconduct.

These allegations are encompassed in his direct appeal and will not be addressed

again here.

       O'Haver also contends that the trial court violated his right to a speedy trial

for a variety of reasons. O'Haver's claims are insufficient to "inform the court of

the nature and occurrence of [the] alleged errors."         RAP 10.10(c); State v.

Alvarado. 164 Wn.2d 556, 569, 192 P.3d 345 (2008). Moreover, these allegations

involve matters outside of the record and therefore cannot be considered on

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




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WE CONCUR:




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