                                                                                                           FILED
                                                                                                     COURT OF APPEALS
                                                                                                        DIVISION 11
                                                                                                 2015 JAN 27          8• 49
                                                                                                 s              ASH! ' GT
                                                                                                 BY




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                     DIVISION II


 STATE OF WASHINGTON,                                                            No. 44203 -5 -I1


                                          Respondent,


            v.



 TIMOTHY EDWARD CHENAULT,                                                  UNPUBLISHED OPINION


                                          Appellant.




           LEE, J. —      A   jury    found   Timothy    Edward Chenault guilty    of second   degree   rape.   He


appeals, arguing that the trial court violated his right to present a defense by excluding evidence

of   the   victim' s   history   of mental    illness.   He also argues that the trial court erred by denying his

motion      for   a mistrial (   1)   when there was an allegation of jury misconduct and ( 2) during the

prosecutor' s       closing   argument.       Finally, he argues that the trial court improperly found that

Chenault had the present or likely future ability to pay discretionary legal financial obligations.

The trial court did not violate Chenault' s right to present a defense because the evidence regarding

the victim' s history of mental illness was irrelevant, and Chenault' s remaining claims lack merit.

We    affirm      Chenault'   s conviction.
No. 44203 -5 -II


                                                              FACTS


          On July 23, 2010, 17 -year old J. A.1 left her house in Vancouver and walked to the nearby
                                                                                                                        2
grocery    store.   She   met some          friends, Cameron Fierro           Walmsley       and    Damien Kennison.        They

walked from the grocery store to a gas station to find someone to purchase alcohol for them. Fierro

Walmsley' s friend, Sergio Tertofsky, was at the gas station and bought Fierro Walmsley and J.A.

some alcohol.       J. A. got a 40 -ounce can of Steel Reserve beer. J.A., Fierro Walmsley, Tertofsky,

and   Kennison      went   to    a   nearby    wooded area ( "       the   spot ").   Cameron opened the can of Steel


Reserve    and   J. A. drank     almost      the    entire can   immediately. J.A. got sick after drinking the beer.

At   some point     during      the evening Chenault             arrived at   the   spot with some        beer.   Over the next


several hours, three men had sex with J.A.: Fierro Walmsley, Chenault, and Kennison.

          When J. A. did not return home for several hours, J. A.' s mother called the police.


Vancouver Police Detective Dustin Nicholson called J.A.' s cell phone to try to contact her;

eventually, the 911 dispatch Center was able to use the Global Positioning System in J. A.' s cell

phone to locate her at a nearby elementary school. When Nicholson arrived, J.A. was hysterical.

Nicholson called for an ambulance and J.A. was transported to the hospital.


          At the hospital, a sexual assault nurse completed a rape kit. Nicholson took several pictures


of the phone log and text messages on J. A.' s phone. He was going to take the phone as evidence,




1 Because the victim was a minor at the time of the offense, we use her initials to protect her
privacy.    At the time      of      the   offenses,   the   victim was    known      as   J. D.,   but by the time of trial her
initials had become J.A.

2
    Damien Kennison' s first          name     is   spelled multiple ways      in the trial    record.
No. 44203 -5 -II



but J.A.' s mother asked if J.A. could keep it. Nicholson agreed. Later, J.A. deleted the data from

her phone. 4 RP 467.

         Detective John Ringo            was   assigned     to    investigate J. A.' s   sexual   assault       case.   He


interviewed Fierro Walmsley, Kennison, and Tertofsky. During the investigation, Kennison and

Fierro   Walmsley    were able     to   identify   Chenault      as   the   other man who arrived at      the   spot.   The


State charged Chenault with second degree rape based on J.A. being mentally incapacitated or

physically helpless.

         Before trial, Chenault         made a motion     to   get copies of     J. A.' s mental health   records.      The


trial court agreed to review the records in camera to determine whether there was anything

contained in the records that would be relevant to Chenault' s defense. After reviewing over 700

pages of records in camera, the trial court determined that there was nothing of relevance in the

records because none of the information contained in the records was related to the underlying

factual allegations of the rape or indicated a condition that would affect J.A.' s ability to remember,

recall, or relate events. 3

         Chenault renewed his motion for J. A.' s mental health records or to admit evidence of her

mental   health    history     on numerous     occasions.        Every time Chenault brought up J. A.' s mental

health records, the trial court reiterated its ruling that the records were irrelevant for numerous

reasons.




         At trial, J.A. testified that there were significant portions of the evening that she could not

remember, although she did remember Fierro Walmsley, Chenault, and Kennison having sex with


3 After the in camera review of J.A.' s mental health records, the trial court sealed the records and
they   are not part of   the   record on appeal.
No. 44203 -5 -II


her.    She described her condition for most of the evening as " the lights were on and nobody was

home."       6 Report       of   Proceedings ( RP)          at   766.   Her arms and legs felt heavy like lead, and she

didn' t think    she could move.               When she testified specifically about Chenault, she stated she did

not ask him to have sex with her and did not feel capable of participating in a sexual act.

            The State presented testimony from a toxicologist who testified that J.A.' s urine sample

was    negative    for      ethanol      but   contained         acetone,    zopiclone,   and     oxazepam.    The toxicologist


testified that J. A.' s peak blood alcohol level would have been approximately 0. 165, then that level

would       decrease   by    0. 015 every hour.         The toxicologist determined J. A.' s blood alcohol level by

applying J.A.' s sex and body weight, and the alcohol concentration of the Steel Reserve to the

standardized formula for calculating blood alcohol levels. Chenault presented his own expert, Dr.

Robert Julien. Dr. Julien agreed with the toxicologist' s calculations of J.A.' s blood alcohol levels

on    the   night of   the   rape.     Dr. Julien also testified that a person cannot have an alcohol induced


blackout if his        or   her blood        alcohol   level is below 0.25.            And, he testified that there was not a


pharmacological explanation                  for J. A.' s   account of       her   condition at   the time —in other words, Dr.



Julien opined that the ingestion of alcohol and other drugs would not explain why she felt as though

she could not move or speak, or why she only had isolated periods of memory. He testified that if

a person is able to form memories he or she is conscious, alert, and active.


            Russell Barnes testified that he was walking through the spot and saw Chenault with J.A.

When he first saw them, he saw " a young little red head bouncing on his lap, looked like a rag doll

or    something."      7 RP at 937. Then he saw Chenault push J.A. off of his lap and J.A. landed face

first in the dirt, but       she   did   not move or        try to   get    up. Chenault looked      at   Barnes   and said, "   She' s


all   fucked up."      7 RP      at   938.     Later, when he walked past the spot again, Barnes saw J.A. laying



                                                                        4
No. 44203 -5 -II



on   the chair while Chenault           was   pulling up his       pants.       Barnes heard J. A. trying to talk, but her

speech was slurred and he couldn' t understand her.

           Fierro     Walmsley    also   testified   at   trial.   He testified that J.A. became very sick after she

drank the can of Steel Reserve and fell asleep after about 15 -20 minutes. While Fierro Walmsley

was   there, "   a black male" walked into the spot carrying an Earthquake beer.4 10 RP at 1356. The

man walked        up to J.A.    and offered     her the beer, but J.A.            was   asleep.    Fierro Walmsley told the

man to leave. Then Fierro Walmsley left to go get J.A. some food and water.5
           Chenault also testified at trial. He testified that when he first arrived at the spot, J.A. was


flirting   with   Kennison. He thought that J. A.              was a     little " tipsy,"   but she was not completely out

of   it. 9 RP    at   1161.   J. A.   came over and sat on         his   lap.   J. A. initiated   sex   by kissing   him. Then,


J. A. led him to the ground, stood over him, and took her leg out of her pants. They had sex with

J. A. on top of him. During the entire time he was with J.A. she was never unconscious.

           Before the trial concluded, the trial court notified the attorneys about a potential issue with


one of     the jurors.    Juror 12 had asked the bailiff if they were going to get jury instructions. Juror

12' s question was prompted by information that he had printed from the internet about serving on

a   jury. The information related to the role of the jury foreman and included information such as

the jury foreman is responsible for making sure that deliberations are conducted in a civilized

manner and all the jurors' voices are heard and that the jury foreman asks the jurors to vote on the

verdict and fills out the verdict form. The trial court questioned the juror with the attorneys present,




4 Chenault is African- American.

5 The trial court did not allow specific testimony about Fierro Walmsley having sex with J. A. and
limited Fierro Walmsley' s testimony to J. A.' s condition around the time Chenault was with J.A.

                                                                   5
No. 44203 -5 -II



and the juror stated that he had looked up the information because he had never served on a jury

before, but that he had not done any research into anything else or any substantive issue on the

case. The prosecutor had no objection to the juror staying on. Chenault moved for a mistrial or to

have the juror       replaced with    the   alternate.     The trial court denied that motion for the mistrial


because he felt the information the juror looked up                    was    inconsequential.         The trial court also


declined to replace the juror with the alternate.


        During closing argument, the prosecutor argued that J. A.' s physical condition at the time

Chenault had sex with her indicated that she was unable to consent. The prosecutor pointed out

that Barnes'    s   testimony    established   that Chenault        saw   J. A. fall   on   her face   and not get   up. And


Fierro Walmsley' s testimony established that Chenault knew she was, at least at one point,

sleeping or unconscious. To that end, the prosecutor stated:

        Cameron Fierro [  Walmsley] told you yesterday that the first time he saw the
        Defendant       walk     through that clearing, he had —he
                                                               didn' t say he didn' t know it
        was —he didn' t know who it was at the time, was the only African American male

        that walked through that circle that day, and he describes him as drinking the exact
        beer the Defendant said he was drinking on the stand, I would like you to note that.
        He said he saw him, he had an Earthquake beer in his hand, which is exactly what
        the Defendant       said   he had. And he        said   that he, he   walked over       to [ J. A.],   who was

        passed out on this chair, and put it up to her mouth and tried to give it to her, even
        though this      girl was    basically   unresponsive, and           he   said, "   Hey, dude, get out of
        here."


11 RP   at   1439 -40.    After the prosecutor' s closing argument, the jury was dismissed for lunch.

Then, Chenault objected to the prosecutor' s statement:


        I    guess   I' m kind   of — I' m definitely shocked and I' m extremely disappointed that
            the prosecutor] would put into issue a fact that wasn' t even testified to in the trial.
        She just told the jury that my            client gave        this girl alcohol.        That, that was her
        argument in front of the jury-




                                                                6
No. 44203 -5 -II



11 RP at 1463. The trial court disagreed with Chenault' s characterization and stated that it believed

that the prosecutor argued that Chenault offered J.A. beer, not that J. A. took or consumed any of

it.


          Chenault also objected based on the fact that Chenault never testified that he had an

Earthquake beer. The trial            court ruled: "   Well, you can argue that to the jury and the jury will rely

on    their   collective memories and notes —"           11 RP at 1470. Chenault asked for a mistrial. The trial


court denied the motion. In her r`ebuttal argument, the prosecutor made sure to clarify that she was

not arguing that Chenault ever gave J.A. any alcohol.

          The     jury   found Chenault guilty         of second       degree   rape.   At sentencing, the trial court

imposed a standard range sentence and imposed legal financial obligations. The trial court did not


mark the box on the judgment and sentence stating that the defendant had the present or likely

future ability to pay legal financial obligations. Chenault appeals.

                                                         ANALYSIS


A.            EVIDENCE OF J. A.' S MENTAL HEALTH HISTORY


              We review a trial court' s decision to exclude evidence for an abuse of discretion. State v.

Lord, 161 Wn.2d 276, 294, 165 P. 3d 1251 ( 2007).                       A trial court abuses its discretion when its


decision is based         on   untenable     grounds     or   untenable    reasons.     Lord, 161 Wn.2d at 283 -84.


Criminal defendants have a constitutional right to present evidence in their own defense. State v.


Hawkins, 157 Wn.          App.   739, 750, 238 P. 3d 1226 ( 2010), review denied, 171 Wn.2d 1013 ( 2011).


But, the evidence must be relevant; there is no constitutional right to present irrelevant evidence.


Lord, 161 Wn.2d           at   294.    Relevant   evidence      is "   evidence having any tendency to make the




                                                                7
No. 44203 -5 -II



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."    ER 401.


         To convict Chenault of second degree rape, the State had to prove that Chenault engaged


in sexual intercourse with J.A. when J.A. was " incapable of consent by reason of being physically

helpless   or   mentally incapacitated."              RCW 9A. 44. 050( 1)( b).    Both "   mental   incapacity"   and




 physically helpless"        are   statutorily defined. "   Mental incapacity" means:

         that condition existing at the time of the offense which prevents a person from
         understanding the nature or consequences of the act of sexual intercourse whether
         that condition is produced by illness, defect, the influence of a substance or from
          some other cause.




RCW 9A.44. 010( 4). And, " physically             helpless" means:

          a person who is unconscious or for any other reason is physically unable to
          communicate unwillingness to an act.


RCW 9A.44. 010( 5).          It is a defense to second degree rape based on mental incapacity or physical

helplessness if the defendant proves by a preponderance of the evidence " that at the time of the

offense the defendant reasonably believed that the victim was not mentally incapacitated and /or

physically helpless."        RCW 9A.44. 030( 1).


          Chenault argues that he was denied his right to present a defense because the trial court


excluded evidence of J. A.' s mental health history. It appears that Chenault is making two separate

arguments.        First, he is arguing that the evidence regarding J.A.' s mental health history was

relevant because it was an alternative explanation for her condition on the night of the rape.


Second, he is arguing that it was relevant to prove his defense that he reasonably believed that she

was capable of consent. Neither argument demonstrates that the trial court abused its discretion

in excluding      evidence of      J.A.' s   mental   health   history.   Regardless of how Chenault attempts to




                                                                8
No. 44203 -5 -II



frame the issue, evidence of J.A.' s mental health history is irrelevant, and the trial court did not

abuse its discretion by excluding it.

           1.        J.A.' s Mental Health as an Alternative Explanation


         Chenault argues that the evidence regarding J.A.' s mental health history was relevant

because it        provided    an      alternative   explanation   for her behavior.       However, this argument is


predicated on the assumption that the State is obligated to prove the underlying cause of J.A.' s

mental   incapacity      or physical       helplessness. The State argues that it is not obligated to prove the


underlying         cause of     the    victim' s    mental   incapacity   or .physical   helplessness.   Therefore, an


alternative explanation for J.A.' s condition at the time of the rape was irrelevant and properly

excluded.         Both parties point out that the opposing party has failed to cite authority for their

proposition —and with              good reason.        It does not appear that there is any authority discussing

whether the State has the burden to prove the underlying cause of a victim' s mental incapacity or

physical        helplessness.    Based on the statutory language, we hold that the State is not required to

prove the underlying cause of the victim' s condition at the time of sexual intercourse. Therefore,

J. A.' s mental health history was not relevant to Chenault' s defense.

           Statutory interpretation is         a question of      law   we review   de   novo.   State v. Rice, 180 Wn.


App.   308, 313, 320 P. 3d 723 ( 2014) ( citing              State v. Franklin, 172 Wn.2d 831, 835, 263 P. 3d 585

 2011)).        Our objective is to determine and give effect to the legislature' s intent. Rice, 180 Wn.


App. at 312. We give effect to the statute' s plain language when the meaning can be determined

from the text.        Rice, 180 Wn. App. at 313 ( citing State v. Jones, 172 Wn.2d 236, 242, 257 P. 3d

616 ( 2009)). " If the statute is still susceptible to more than one interpretation after we conduct a


plain meaning review, then the statute is ambiguous and we .rely on statutory construction,



                                                                  9
No. 44203 -5 -II



legislative   history,   and relevant case       law to determine legislative intent."       Rice, 180 Wn. App. at

313 ( citing Jones, 172 Wn.2d at 242).

          Here,   the   statute   focuses   on   the   victim' s condition at    the time   of   the           not the
                                                                                                       offense —




underlying     cause    of   the victim' s condition.       Although there are no cases directly stating this

proposition, State v. Summers, 70 Wn. App. 424, 853 P.2d 953, review denied, 122 Wn.2d 1026

 1993),   provides some guidance.




          In Summers, Division One of this court determined that expert testimony was not required

to   prove a victim was       mentally incapacitated. 70 Wn.         App.   at   431.   The court held the victim' s


 testimony was direct evidence of her lack of capacity and demonstrated her inability to

comprehend basic facts such as the time of day, much less the nature or consequences of sexual

intercourse."     Summers, 70 Wn. App. at 430. And, the court determined that there was sufficient

evidence to prove that the victim did not understand the nature or consequences of sexual


intercourse based on her inability to accurately describe sexual intercourse, her inability to explain

the potential consequences of sexual intercourse, and her basic lack of understanding of nonsexual

matters such as the days of the week or how to tell time. Summers, 70 Wn. App. at 431 -32. In its

discussion of sufficiency of the evidence, the court .did not consider why the victim lacked the

capacity to understand the nature of consequences of sexual intercourse. In fact, at no point does

the court mention what the cause of the victim' s mental incapacity was.

          Here, the State presented J. A.' s testimony regarding her condition at the time of the rape.

Her testimony in this regard is all the State was required to present to establish whether she was

mentally incapacitated or physically helpless at the time of the rape.




                                                             10
No. 44203 -5 -II



         Chenault argues that J.A.' s mental health history is important because J. A.' s condition was

not a permanent or organic            condition    such as   a    developmental      disability.   But the cause of a


temporary condition that results in mentally incapacity or physical helplessness is no more relevant

than the cause of a permanent or organic condition. For example, if the State presents evidence


that a rape victim was laying on the ground unconscious at the time of the rape, it is obvious that

the State     would not    have to   prove   how the   victim     became     unconscious.     The victim could have

suffered      a   head   injury,   passed   out    from drugs      or    alcohol,   gone   into diabetic   shock —the




possibilities are both endless and irrelevant. The only thing that would be relevant is whether the

defendant had       sexual   intercourse    with   the unconscious       victim.    The same is true here, how J.A.


ended up in the condition in which Chenault found her is irrelevant, what matters is whether that

condition resulted in mental incapacity or physical helplessness.

         Finally, Chenault apparently alleges that the evidence of J.A.' s mental health history is

relevant to demonstrating an alternative explanation for her overall behavior that night, rather than

the   specific condition      in   which   Chenault found her.          There is evidence in the record suggesting

that some of J.A.' s mental health records may show that she was engaging in self -destructive and

risk -taking behavior. However, such evidence is not only irrelevant, it is improper in a rape case.

RCW 9A.44. 020.           Therefore, we consider any argument that evidence of J.A.' s mental health

history should be admissible to explain her overall behavior that evening to be without merit.

         2.         Chenault' s Reasonable Belief


         Chenault also argues that J.A.' s mental health condition was relevant to presenting his

affirmative defense that he reasonably believed that J.A. was not mentally incapacitated or

physically helpless.         Chenault does not explain how presenting evidence of J.A.' s mental health



                                                             11
No. 44203 -5 -II



history would have any bearing on his defense that he reasonably believed J. A. was not mentally

incapacitated or physically helpless.

         Here, there   were    two   accounts of      J. A.' s behavior.    J. A. and the other witnesses testified


that she was in and out of consciousness, she was having trouble speaking coherently, she was

falling down, she was vomiting, and at times she was generally unresponsive. In contrast, Chenault

testified that, although it appeared J.A. had been drinking, she appeared to be functioning normally.

Evidence of J.A.' s mental health history would not have changed either of those accounts of J.A.' s

behavior. Either the jury found J.A. and the other witnesses credible or they believed Chenault' s

account.       Evidence of J.A.' s mental health history would not have made it more probable that

Chenault' s observations were accurate, nor would it make it less probable that the jury would find

J.A.' s account, and the State' s witness, less credible.

         Chenault had     no   knowledge      of   J. A.' s   mental   health   history.   Thus, J.A.' s mental health


history could not have influenced how Chenault perceived her condition. Therefore, evidence of

J. A.' s mental health history was irrelevant to Chenault' s affirmative defense, and the trial court

did not abuse its discretion in excluding it.

B.       JUROR MISCONDUCT


         We review a trial court' s decision denying a motion for a mistrial based on juror

misconduct for an abuse of discretion. State v. Balisok, 123 Wn.2d 114, 117, 866 P. 2d 631 ( 1994).


 A strong, affirmative showing of misconduct is necessary in order to overcome the policy

favoring stable and certain verdicts and the secret, frank, and free discussion of the evidence by
the   jury."    Balisok, 123 Wn.2d     at   117 -18 ( citing Richards       v.   Overlake   Hosp.   Med. Ctr., 59 Wn.


        266, 271 -72, 796 P. 2d 737 ( 1990),                           denied, 116 Wn.2d 1014 ( 1991)).           But,
App.                                                          review




                                                               12
No. 44203 -5 -II



consideration of novel or extrinsic evidence constitutes juror misconduct and can require a new

trial. Balisok, 123 Wn.2d          at   118. '     Novel or extrinsic evidence is defined as information that is


outside all   the   evidence admitted at          trial,   either   orally   or   by   document. "' Balisok, 123 Wn.2d at


118 ( quoting Richards, 59 Wn. App.                at   270). If there is evidence of juror misconduct, we presume


the defendant is prejudiced. State v. Boling, 131 Wn. App. 329, 332, 127 P. 3d 740, review denied,

158 Wn.2d 1011 ( 2006).            However, if we conclude beyond a reasonable doubt that the extrinsic


evidence   did   not contribute     to the       verdict, we will not grant a new            trial. State v. Briggs, 55 Wn.



App. 44, 56, 776 P.2d 1347 ( 1989).

        Here, juror 12 looked up some information on the internet regarding the role of a jury

foreman    and   how   a   jury   conducts       deliberations. Although juror 12' s conduct was improper, the


trial court did not abuse its discretion by denying Chenault' s motion for a mistrial. The information

juror 12   obtained    from the internet           was not extrinsic evidence.              The information that the juror


obtained had no bearing on any factual determination the jury was required to consider in this case.

Nothing in the record indicates that the basic information regarding jury service that juror 12 found

on the internet contributed to the verdict.6 We conclude beyond a reasonable doubt that that there




6 We would also note that after conducting the colloquy with juror 12 the trial court stated:

        I want to make clear for the remainder portion of this trial, nothing, absolutely
        nothing are you to research, look up, even if it seems like a real collateral issue,
        like how does a jury foreman help lead deliberations like this sheet. I don' t want
        you —Do not tell the jury why you —the remaining panel why you were brought in

        here. Don' t share any information off of this sheet. I recognize it' s pretty kind of
        basic, but still-


9 RP at 1131.



                                                                    13
No. 44203 -5 -II



was no prejudice to Chenault, and the trial court did not abuse its discretion by denying Chenault' s

motion for a mistrial.


C.        PROSECUTORIAL MISCONDUCT


          A defendant claiming prosecutorial misconduct bears the burden of demonstrating that the

challenged conduct was both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 759 -60,

278 P. 3d 653 ( 2012).            A prosecutor is allowed wide latitude in closing arguments to draw

reasonable inferences from the facts in evidence and to express such inferences to the jury. State

v.   Gregory,    158 Wn.2d 759, 860, 147 P. 3d 1201 ( 2006).              However, the prosecutor' s statements


must be supported by the record. State v. Ramos, 164 Wn. App. 327, 341, 263 P.3d 1268 ( 2011).
We review alleged misconduct " within the context of the prosecutor' s entire argument, the issues

in the   case,   the   evidence   discussed in   the   argument, and   the   jury instructions."   State v. Dhaliwal,


150 Wn.2d 559, 578, 79 P. 3d 432 ( 2003).              We presume jurors follow the trial court' s instructions.


State v. Russell, 125 Wn.2d 24, 84, 882 P. 2d 747 ( 1994).


          Where, as here, the defendant objected at trial, he must demonstrate prejudice by showing

 that the prosecutor's misconduct resulted in prejudice that had a substantial likelihood of affecting

the jury'   s verdict."    Emery,    174 Wn.2d    at   760. "   The decision to deny a request for mistrial based

upon alleged prosecutorial misconduct lies within the sound discretion of the trial court, and it will


not   be disturbed      absent an abuse of   discretion." Russell, 125 Wn.2d at 86. A trial court abuses its


discretion when its decision is based on untenable grounds or untenable reasons. State v. Powell,


126 Wn.2d 244, 258, 893 P. 2d 615 ( 1995).


          Chenault' s prosecutorial misconduct claim arises from one particular section of the


prosecutor' s closing argument:




                                                                14
No. 44203 -5 -II



         Cameron Fierro [          Walmsley] told you yesterday that the first time he saw the
         Defendant         walk   through that clearing, he had —he
                                                                  didn' t say he didn' t know it
         was —     he didn' t know who it was at the time, was the only African American male
         that walked through that circle that day, and he describes him as drinking the exact
         beer the Defendant said he was drinking on the stand, I would like you to note that.
         He said he saw him, he had an Earthquake beer in his hand, which is exactly what
         the Defendant          said   he had. And he   said   that he, he   walked over   to [ J. A.], who was

         passed out on this chair, and put it up to her mouth and tried to give it to her, even
         though this girl was basically unresponsive, and he said, " Hey, dude, get out of

         here."


11 RP    at    1439 -40.    Chenault raises two specific arguments based on the prosecutor' s argument.


First, he argues that the trial court should have granted his motion for a mistrial because the


prosecutor referred to facts not in the record by stating that Chenault testified that he had an

Earthquake beer the night of the rape. Second, he argues that the trial court should have granted a


mistrial because the prosecutor improperly implied that Chenault gave J.A. alcohol on the night of

the   rape.    Both arguments lack merit, and we affirm the trial court' s decision to deny Chenault' s

motion for a mistrial.


          1.        Reference to Earthquake Beer


         The State concedes that the prosecutor' s statement that Chenault testified regarding the

brand of beer he had in his possession was not in the record. However, the State contends that the


trial court did not abuse its discretion by denying the motion for a mistrial because there was not

a substantial likelihood that the prosecutor' s misstatement affected the jury' s verdict.

         At trial, Chenault did not dispute that he had beer with him when he went to the spot or


that he had sex with J.A. The only disputes were whether J. A.' s condition rendered her incapable

of consenting to sex and whether Chenault knew that J. A. was incapable of consenting to sex.

Considering the issues in the case and the evidence presented at trial, the brand of beer Chenault

had    with    him .was     a   relatively trivial   matter.        There is not a substantial likelihood that the


                                                               15
No. 44203 -5 -II



prosecutor' s misstatement affected the verdict; the trial court did not abuse its discretion by

denying Chenault' s motion for a mistrial.

            Moreover, the         jury   was   specifically instructed that the lawyers'                    statements    were   not




evidence.         And, the jury was instructed to " disregard any remark, statement, or argument that is

not supported         by the    evidence or    the law in my instructions."              CP at 44. We assume that the jury

followed the trial court' s instructions and disregarded the prosecutor' s misstatement regarding the

brand       of   beer in Chenault'   s possession     on    the   night of   the   rape.    Thus, Chenault fails to meet his

burden to show that there is a substantial likelihood that that prosecutor' s misstatement affected


the jury' s verdict. The trial court did not abuse its discretion by denying Chenault' s motion for a

mistrial.



             2.        Prosecutor' s Implication that Chenault gave J.A. alcohol


             Chenault also argues that the trial court should have granted a mistrial because the


prosecutor         improperly     implied that Chenault           gave   J. A.   alcohol   the   night of   the   rape.   He argues


that    the       prosecutor' s    argument      is   not   supported        by    the     evidence.        However,       Chenault


mischaracterizes          the   prosecutor' s    argument.         The prosecutor' s argument was an appropriate


inference from Fierro Walmsley' s testimony; therefore, the trial court did not abuse its discretion

by denying Chenault' s motion for a mistrial.

             The prosecutor' s argument was an accurate statement from Fierro Walmsley' s testimony.

Fierro Walmsley testified that before he left J. A. at the spot, he saw a black man come up and offer

J. A.   a   beer.     He then testified that J. A. did            not   take the beer because          she was      sleeping.    The


prosecutor did not state that Chenault actually gave J.A. the beer, and she did not state, or imply,

that J.A. consumed any of it. Instead, she argued that Fierro Walmsley saw Chenault offer J.A. a



                                                                   16
No. 44203 -5 -II



beer, and that J. A. did not take the beer because she was unresponsive. The prosecutor' s statements


were not based on facts outside the record; the statements were an accurate recitation .of Fierro

Walmsley' s testimony combined with the reasonable inference that the black man Fierro

referenced was Chenault. Accordingly, nothing in the prosecutor' s argument was improper, and

the trial court did not abuse its discretion by denying Chenault' s motion for a mistrial.'

D.        CUMULATIVE ERROR


          Chenault alleges that the cumulative error doctrine entitles him to relief because the


combined effect of the alleged errors           denied him    a   fair trial. " The cumulative error doctrine applies


where a combination of trial errors denies the accused of a fair trial, even where any one of the

errors,   taken   individually,     would     be harmless."       In re Pers. Restraint of Cross, 180 Wn.2d 664,

690, 327 P. 3d 660 ( 2014).          To support a cumulative error claim the appellant must demonstrate

multiple errors. Cross, 180 Wn.2d at 690 -91.


          Here, Chenault has identified          a single error —     the prosecutor' s misstatement regarding the

brand     of   beer Chenault had.      Because there is only one error, the cumulative error doctrine does

not entitle Chenault to relief.




7 And, we note that any potential prejudice from the prosecutor' s statement was cured by the
prosecutor' s rebuttal argument.              During   rebuttal    argument    the   prosecutor stated: "   If for some
reason it appeared that I was arguing to you that Timothy Chenault gave her alcohol, that is not
the   argument      the State was attempting to          make."        11 RP   at    1519.   The prosecutor made it
abundantly       clear   that   she was not   implying   or   arguing that Chenault      gave   J.A. any   alcohol.   The
prosecutor' s statements could not have affected the verdict because she clarified them to ensure
that there was no misunderstanding. Because the prosecutor specifically told the jury that she was
not in any way arguing that Chenault gave J. A. any alcohol, Chenault cannot meet his burden to
show that there is a substantial likelihood that the prosecutor' s comment could have affected the
verdict.




                                                              17
No. 44203 -5 -II



E.        LEGAL FINANCIAL OBLIGATIONS


          Chenault claims that the trial court erred by imposing discretionary legal •financial

obligations without sufficient evidence to support a finding that Chenault has the present or future

ability to pay. However, Chenault has overlooked the fact that the trial court did not make a finding

that Chenault has the      present or   likely   future ability to pay legal financial   obligations.    The trial


court is not required to make a specific or formal finding regarding the defendant' s present or

likely   future ability to pay legal financial      obligations.    State v. Curry, 118 Wn.2d 911, 916, 829

P. 2d 166 ( 1992).


          Moreover, Chenault' s claim is ultimately a claim that insufficient evidence supports a

finding    that Chenault has the   present or     likely   future ability to pay legal financial   obligations.   A


claim that the evidence is insufficient to support a finding that a defendant has the present or likely

future ability to pay cannot be raised on the first time on appeal and is not ripe for review until the

trial court attempts to collect payment on the legal financial obligations. State v. Blazina, 174 Wn.


App.     906, 911, 301 P. 3d 492,   review granted,        178 Wn.2d 1010 ( 2013);    State v. Lundy, 176 Wn.

App.     96, 108, 308 P. 3d 755 ( 2013).    Therefore, Chenault' s claim fails.


F.         SAG- INEFFECTIVE ASSISTANCE OF COUNSEL


           A defendant claiming ineffective assistance of counsel has the burden to establish that ( 1)

counsel' s performance was deficient and ( 2) the deficient performance prejudiced the defendant.


Strickland    v.   Washington, 466 U. S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984).              Failure


to establish either prong is fatal to an ineffective assistance of counsel claim. Strickland, 466 U.S.




                                                            18
No. 44203 -5 -II



at 700. Counsel' s performance is deficient if it falls below an objective standard of reasonableness.

State   v.   Stenson, 132 Wn.2d 668, 705, 940 P. 2d 1239 ( 1997), cert. denied, 523 U.S. 1008 ( 1998).


A defendant is prejudiced by counsel' s deficient performance if there is a reasonable probability

that, but for counsel' s deficient performance, the outcome of the trial would have been different.

Stenson, 132 Wn.2d           at   705 -06.     A legitimate trial tactic or strategy cannot be the basis for an

ineffective     assistance    of counsel       claim.      State v. Grier, 171 Wn.2d 17, 33 -34, 246 P. 3d 1260


 2011).


             Chenault alleges that his counsel was ineffective because his counsel did not attempt to


have the       pictures   Nicholson took         of   J. A.' s   cell phone   excluded   from   evidence.   But, defense


counsel used the photos as part of a legitimate trial strategy. Defense counsel used the pictures of

J. A.' s cell phone to demonstrate that she was using her phone, checking voicemail, and text

messaging during the period of time the State was alleging that J.A. was unconscious or

incapacitated. He argued that J. A. could not have been incapacitated because she was functioning

well enough to use her phone at various times throughout the evening. Although the strategy was

ultimately      unsuccessful,     it   was a   legitimate trial strategy. Therefore, defense counsel' s failure to


move to have the pictures of J. A.' s cell phone excluded cannot form the basis for an ineffective

assistance of counsel claim.




                                                                   19
No. 44203 -5 -II


        We affirm Chenault' s conviction.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports but will instead be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




 We concur:




                                              20
