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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                      No. 72141-1-1


                        Respondent,                       DIVISION ONE


                 v.



DARREN MORRIS-WOLFF,                                      UNPUBLISHED


                        Appellant.                        FILED: February 1,2016




          Cox, J. — Darren Morris-Wolff appeals his judgment and sentence for

residential burglary. The trial court did not comment on the evidence when it

instructed the jury that violation of a court order "may or may not" be a crime

against a person, depending on the facts and circumstances of the violation.

Morris-Wolff fails to establish that he can argue for the first time on appeal that

the trial court erred by answering a jury question during deliberations. And the

court did not abuse its discretion by denying his motion for a curative instruction

made after the jury had begun to deliberate. Likewise, the denial of his motion

for a new trial does not require reversal. There was no cumulative error. We

affirm.

          Darren and Lisa1 Morris-Wolff were married and had two children. After

an altercation, Lisa obtained a series of protection orders against him. These



          1We adopt the State's naming convention and refer to Lisa Morris-Wolff as "Lisa"
to avoid confusion.
No. 72141-1-1/2



orders prohibited Morris-Wolff from contacting either Lisa or their children and

from being within 500 feet of the family home.

       Subsequently, Morris-Wolff repeatedly called and sent text messages to

Lisa. Lisa did not answer the calls, but she responded to a single message

stating: "[Our] [k]ids do need you and [are] proud of you, too. Please stop texting

and calling. It isn't the right way to resolve this and can only get you into

trouble."2

       Morris-Wolff testified at trial that he believed that Lisa's response, telling

him not to contact her by phone, was an invitation to talk to her in person. Thus,

he went to her home on August 14, 2013, despite the fact that a protection order

prohibited him from doing so. Hoping to avoid being seen by neighbors, he

parked away from the house and approached the side of the house. He saw Lisa

and called out to her. She ran inside and called 911.

       According to his testimony, once Morris-Wolff realized that Lisa was

calling 911, he "freaked out."3 Realizing he was likely going to jail, he decided to

speak with his children. He wanted them to know that he loved them and that he

was not abandoning them when he was arrested for violating the protection order

against their mother. Deciding to do so immediately, he broke down the door to

the house, while Lisa watched his intrusion. He went inside, and spoke to his

children.

       Based on this incident, the State charged Morris-Wolff with a number of

offenses, including residential burglary. At his first trial, the jury found Morris-

       2 Report of Proceedings (June 10, 2014) at 140.

       3 Report of Proceedings (June 12, 2014) at 101.
No. 72141-1-1/3


Wolff guilty of some charges, not guilty of others, and could not reach a verdict

on the residential burglary charge.

       The State elected to retry him on only the residential burglary charge

based on the August 14, 2013 incident. At the second trial, the jury found him

guilty of residential burglary.

       Morris-Wolff appeals.

                          COMMENT ON THE EVIDENCE

       Morris-Wolff argues that the court erroneously instructed the jury that

violation of a court order "may or may not" be a crime against a person,

depending on the facts and circumstances of the violation. He claims this was a

comment on the evidence. We disagree.

        Article IV, section 16 of the Washington constitution prohibits judges from

commenting on the evidence. A court does so "if the court's attitude toward the

merits of the case or the court's evaluation relative to the disputed issue is

inferable from the statement."4

       A proper jury instruction is not a comment on the evidence.5 But if an

instruction "essentially resolve[s] a contested factual issue" then it is an improper

comment on the evidence.6

       The question is whether the challenged jury instruction either

communicates to the jury the court's attitude toward the merits of the case or



       4 State v. Lane. 125 Wn.2d 825, 838, 889 P.2d 929 (1995).

       5 State v. Brush. 183 Wn.2d 550, 557, 353 P.3d 213 (2015).

       6ld

                                              3
No. 72141-1-1/4


resolves a disputed factual issue. Notably, resolution of a disputed legal issue is

not within the scope of the constitutional prohibition.

       Under RCW 9A.52.025, "A person is guilty of residential burglary if, with

intent to commit a crime against a person or property therein, the person enters

or remains unlawfully in a dwelling

       Whether a crime qualifies as a crime against property under this statute is

a question of law.7 Similarly, whether a crime is a crime against a person is also

a question of law.8

       Here, the challenged jury instruction states that "A court order violation

may or may not be 'a crime against a person' depending on the facts and

circumstances of the violation."9 This instruction did not resolve a contested

factual issue. The plain words of the instruction address the possible legal effect

of a court order violation. Likewise, the instruction does not communicate the

court's attitude toward the merits of the case. It is not an improper comment on

the evidence.

       The State's theory of the case was that Morris-Wolff intended to commit

one of two crimes—assaulting Lisa or violating a no-contact order—when he

unlawfully entered the home. Accordingly, the court's other instructions defined
both assault and violation of a no-contact order.

       We note that the State proposed the instruction at issue because the jury

in the first trial had repeatedly asked the court whether a violation of a no-contact

       7 State v. Kindell. 181 Wn. App. 844, 851, 326 P.3d 876 (2014).

       8 State v. Stinton, 121 Wn. App. 569, 574, 89 P.3d 717 (2004).

       9 Clerk's Papers at 249 (emphasis added).
No. 72141-1-1/5


order was a crime against a person. In response to the State's proposal at this

trial, Morris-Wolffargued that the State's proposed instruction would be a

comment on the evidence. Specifically, he claimed that it singled out one of the

two crimes that the State alleged Morris-Wolff intended to commit.

       Addressing Morris-Wolff's concerns, the court offered to also instruct the

jury that assault qualified as a crime against a person. Additionally, the trial court

noted that it was more obvious that assault was a crime against a person,

compared to violation of a no-contact order, which the trial court characterized as

a more "abstract" crime.

       Morris-Wolff did not respond to the court's offer to instruct the jury that

assault also qualified as a crime against a person. The court then gave the

instruction he now challenges.

       For the reasons the trial court identified, it was proper to instruct the jury

on whether violation of a no-contact order was a crime against a person. Giving

the instruction was designed to avoid confusion of this jury, a possibility that the

first trial suggested was likely in this trial. Moreover, this instruction neither

communicates the court's view of the merits of the case nor resolves a factual—

as opposed to a legal—issue. In fact, it does not even resolve the legal issue:

the possible effect of violation of a court order.

       Morris-Wolff argues that the instruction implicitly suggests that the State

proved violation of a court order. It does no such thing. Rather, it neutrally

states that it "may or may not be 'a crime against a person,'" depending on the

circumstances. And the court instructed the jury on the elements of violation of a
No. 72141-1-1/6


court order, indicating that that it was the jury's role to determine whether Morris-

Wolff intended to violate a court order.

       For these reasons, we reject this unpersuasive argument.

                         ANSWER TO JURY QUESTION

       For the first time on appeal, Morris-Wolff argues that the court improperly

answered a question from the jury during its deliberations. Specifically, he

argues that the court's answer to a jury question was inconsistent with its other

written instructions given before closing arguments. Because he did not

preserve this claim by arguing it below, and also fails to show that he may raise

this issue under RAP 2.5(a), we do not reach it.

       Before answering the jury's question during deliberations, the court gave

both parties the opportunity to review the proposed answer. The record shows

that the State reviewed the proposed answer and concurred that it was proper.

The record does not show that Morris-Wolff addressed the court's proposed

answer either by way of objection or otherwise. The court then gave the

proposed answer in response to the jury's question. Accordingly, there was no

preservation of any objection to the proposed answer.

       This court generally does not review issues first raised on appeal.10 But

an appellant may raise an issue for the first time on appeal if it is a manifest error

affecting a constitutional right under RAP 2.5(a).11 "Criminal law is so largely

constitutionalized that most claimed errors can be phrased in constitutional


       10 RAP 2.5(a).

       11 State v. Kalebauqh. 183 Wn.2d 578, 583, 355 P.3d 253 (2015).
No. 72141-1-1/7



terms."12 Thus, to raise an issue for the first time on appeal, an alleged error

must be both constitutional and manifest.

       Under RAP 2.5(a), courts ask two "gatekeeping" questions: "(1) Has the

party claiming error shown the error is truly of a constitutional magnitude, and if

so, (2) has the party demonstrated that the error is manifest?"13

       A manifest error "'requires a showing of actual prejudice.'"14 "To

demonstrate actual prejudice, there must be a 'plausible showing by the

[appellant] that the asserted error had practical and identifiable consequences in

the trial of the case.'"15

       Here, Morris-Wolffdoes not address RAP 2.5(a) in his opening brief. And

his reply brief does not fully address why his claim falls within RAP 2.5(a)'s

narrow exception. Specifically, he fails to argue why this alleged error is

manifest. Thus, we do not reach the merits of his unpreserved argument.

              CURATIVE INSTRUCTION AND NEW TRIAL MOTION

        Morris-Wolff next makes two related arguments. He first argues that the

trial court erroneously denied his request for a curative instruction while the jury

deliberated. He next argues that the court abused its discretion by denying his

motion for a new trial following the guilty verdict. Underlying both arguments is

his contention that the prosecutor committed misconduct during closing


        12 State v. Lynn. 67 Wn. App. 339, 342, 835 P.2d 251 (1992).

        13 Kalebauqh. 183 Wn.2d at 583.

        14 id. at 584 (alteration in original) (internal quotation marks omitted) (quoting
State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009)).

        15 Id (internal quotation marks omitted) (quoting O'Hara, 167Wn.2d at 99).
                                                   7
No. 72141-1-1/8


argument. We hold that the court did not abuse its discretion by failing to give a

curative instruction because Morris-Wolff failed to request one before the

beginning of deliberations. Additionally, the court did not abuse its discretion by

denying Morris-Wolff's motion for a new trial because the evidence he relied on

inhered in the jury's verdict.

                                 Curative Instruction

       Morris-Wolff argues that the court abused its discretion by declining to

give the jury a curative instruction. We disagree.

       To prevail on a claim of prosecutorial misconduct, the defense must

establish that the prosecutor's conduct was both improper and prejudicial.16

       During closing argument, prosecutors have "wide latitude to draw and

express reasonable inferences from the evidence."17 But prosecutors may not

"make prejudicial statements that are not sustained by the record."18

       We review a trial court's ruling on alleged prosecutorial misconduct for

abuse of discretion.19

       During closing argument, Morris-Wolff argued that he did not enter the

house to assault Lisa on August 14, 2013. He argued that he intended to see his

children. According to his testimony, he wanted them to know that he loved them




       16 State v. Emery. 174 Wn.2d 741, 756, 278 P.3d 653 (2012).

       17 State v. Reed. 168 Wn. App. 553, 577, 278 P.3d 203 (2012).

       18 State v. Dhaliwal. 150 Wn.2d 559, 577, 79 P.3d 432 (2003).

      19 State v. Lindsay. 180 Wn.2d 423, 430, 326 P.3d 125 (2014); State v. Stenson.
132 Wn.2d 668, 718, 940 P.2d 1239 (1997).


                                              8
No. 72141-1-1/9



and that he was not abandoning them when he was likely to be arrested for

violating the protection order against their mother.

       In rebuttal, the prosecutor stated:

       This isn't a circumstance where [Morris-Wolff] went to the kids'
       daycare, all right. He didn't go to the kids' school, all right.
       Although the testimony was that he was familiar with those
       processes, all right, he lived there and he went to the same daycare
       and the same school and he certainly did not go on August 14th as
       defined in State's Exhibit 8, the order for protection that Lisa asked
       for, to the supervised visitation that was ordered with his
       childrenJ20!

       At this point, Morris-Wolff objected on the basis that the argument was

misleading. The court overruled the objection.

       The prosecutor later repeated the argument:

               Because while Lisa followed a court process, she petitioned
       for a protection order, the defendant didn't show up for those
       hearings. He had supervised visitation.1211

       Morris-Wolff objected again on the basis that the argument was

misleading. This time, the court sustained the objection. Notably, Morris-Wolff

did not then request any curative instruction after the court sustained the second

of his two objections. The prosecutor finished his rebuttal, and the jury left the

courtroom to begin its deliberations. At this time, Morris-Wolff stated that he

intended to research the remedy for the prosecutor's allegedly misleading

statements during closing.

       After the parties returned from recess and while the jury was deliberating,

Morris-Wolff asked the court to give the jury a curative instruction. He asked that


       20 Report of Proceedings (June 16, 2014) at 63.

       21]d at 64.
                                              9
No. 72141-1-1/10


the court "instruct the jurors that between July 5, 2013 and August 14, 2013, Mr.

Morris-Wolff was not legally permitted to visit[] with his children supervised or

unsupervised because of the existence of the no-contact order."22 Morris-Wolff

argued that this instruction was necessary to cure the State's misleading

statements during closing about visitation. In the alternative, he asked the court

to instruct the jury to disregard the State's argument on supervised visitation.

       The court denied these requests for alternative curative instructions. The

court stated, among other things, that such instructions would likely confuse the

jury. The court determined that it would confuse the jury to receive a new

instruction because the court had informed the jury that they would not receive

any further instructions. The court also determined that the jury might not

understand the term "supervised visitation" and that visitation was not "what this

case [was] about," so the jury could give the instruction undue weight.23 The

court further noted that it would be "extremely risky" to give the jury another

instruction when counsel would not be able to argue it to the jury.24

       We conclude that the primary focus of Morris-Wolffs argument is whether

the trial court properly denied his request for alternative curative instructions

while the jury deliberated. He does not appear to complain that the trial court

sustained only the second of his two objections to the prosecutor's allegedly

misleading argument.




       22 Id at 69.

       23 Jd at 72.

       24 Id.

                                              10
No. 72141-1-1/11


       Here, it was not an abuse of discretion for the court to deny his requests

for curative instructions. The record is clear that Morris-Wolff first requested

curative instructions while the jury deliberated, not before.

       For the reasons the trial court identified, giving the jury a curative

instruction could have confused the jury. Morris-Wolff could have immediately

requested curative instructions upon the court sustaining his second objection to

the prosecutor's argument. But he did not do this. Instead, he waited until after

the jury had begun deliberating. That was simply too late. The court did not

abuse its discretion by declining to give the jury a curative instruction during its

deliberations.

                               Motion for a New Trial

       Morris-Wolff also argues that the court should have granted his post-

verdict motion for a new trial based on the prosecutor's allegedly misleading

closing argument. Because the evidence that he relied on inhered in the jury's

verdict, we disagree.

       After the verdict, Morris-Wolff moved for a new trial under CrR 7.5, arguing

that the State's allegedly misleading closing argument necessitated a new trial.

Morris-Wolff supported this motion with a declaration from his counsel. His

counsel stated that he spoke to the jurors after trial. Several jurors indicated that

they were surprised that the protection orders prohibited Morris-Wolff from
attending supervised visitation with his children. And one juror "stated that the




                                              11
No. 72141-1-1/12


fact that [Morris-Wolff] had not been attending the supervised visits was a "'nail in

the coffin.'"25

        We review for abuse of discretion a trial court's decision on a motion for

new trial.26 "A trial court abuses its discretion if a decision is manifestly

unreasonable or based on untenable grounds or untenable reasons."27

        "Appellate courts will generally not inquire into the internal process by

which the jury reaches its verdict."28 Thus, evidence that inheres in the verdict

cannot support a new trial.29

        "One test is whether the facts alleged are linked to the juror's motive,

intent, or belief, or describe their effect upon him; if so, the statements cannot be

considered for they inhere in the verdict and impeach it."30 Jurors' erroneous

beliefs about facts or the law inhere in the verdict.31 "[T]he effect the evidence

may have had upon the jurors or the weight particular jurors may have given to

particular evidence" also inhere in the verdict.32



        25 Clerk's Papers at 265.

        26 State v. Hawkins. 181 Wn.2d 170, 179, 332 P.3d 408 (2014).

        27 Skaait County Pub. Hosp. Dist. No. 304 v. Skaait County Pub. Hosp. Dist. No.
1, 177 Wn.2d 718, 730, 305 P.3d 1079 (2013).

        28 Breckenridqe v. Vallev Gen. Hosp.. 150 Wn.2d 197, 204, 75 P.3d 944 (2003).

        29 id

        30 Gardner v. Malone. 60 Wn.2d 836, 841, 376 P.2d 651, 379 P.2d 918 (1962).

        31 id at 842.

        32 Breckenridqe. 150 Wn.2d at 205 (quoting Cox v. Charles Wrioht Academy.
Inc., 70 Wn.2d 173, 179-80, 422 P.2d 515(1967)).


                                               12
No. 72141-1-1/13



       Here, when Morris-Wolff moved for a new trial, the evidence he relied on

inhered in the jury's verdict. His counsel's declaration went to the jurors' beliefs

about facts in the case and the effect those beliefs had on their deliberations.

The court did not abuse its discretion when it denied his motion for a new trial.

                               CUMULATIVE ERROR

       Morris-Wolfffinally argues that cumulative error requires reversal.

Because any errors here did not deny him a fair trial, we disagree.

       Where several errors standing alone do not warrant reversal, the

cumulative error doctrine requires reversal when the combined effects of the

errors denied the defendant a fair trial.33

       Here, as described earlier, the court did not err or abuse its discretion.

Thus, we reject this argument.

       We affirm the judgment and sentence.
                                                           G&AJ3-

WE CONCUR:




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       33 State v. Davis. 175 Wn.2d 287, 345, 290 P.3d 43 (2012).

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