                                                                                        f!LED
                                                                               COURT OF APPEALS
                                                                                      DIVISION 11
                                                                              2014 DEC 30 AM 9: 149

                                                                              STATE OF WASHINGTON
                                                                              BY
                                                                                               UTY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                              DIVISION II


 STATE OF WASHINGTON,                                                       No. 44533 -6 -II


                                  Respondent,


        v.



 JIMMY JOSEPH PERKINS,                                              UNPUBLISHED OPINION


                                   Appellant.




       LEE, J. —   A   jury   found   Jimmy   Perkins guilty   of second   degree   assault.   Perkins appeals


his conviction and sentence, arguing that ( 1) the prosecutor committed misconduct during closing

arguments, and ( 2) the court miscalculated his offender score by adding 1 point for being on

community custody.       Because the prosecutor did not commit misconduct and the trial court


properly calculated Perkins' offender score, we affirm.

                                                   FACTS


       Jimmy Perkins and John Mayfield were cellmates in the Cowlitz County Jail. Perkins was

in custody for a probation violation, and Mayfield was in custody for an alleged assault. Mayfield

and Perkins had confrontations over various issues. In the common area of the cell unit, Mayfield

questioned   Perkins   about   Mayfield' s missing candy       and asked   Perkins to leave his belongings
No. 44533 -6 -II



alone.   Perkins    asked     if Mayfield    was     insinuating     that he   was a " punk   b *tch," to which Mayfield


responded   that Perkins        was a " punk         b *tch."   1 Verbatim Report of Proceedings ( VRP) at 96.


Perkins approached Mayfield and punched him in the face. In response, Mayfield held Perkins in

a headlock until an inmate trustee broke up the fight.

         After that fight, Mayfield walked around the cell unit common area insulting Perkins and

saying, "[ W] e [   can]   take   care of   it ...   when we get      locked in."     1 VRP at 129. Perkins motioned


for Mayfield to come into their cell to fight again, but Mayfield continued to walk around the

common     area.     Perkins then      crossed        the   common      area   and   hit Mayfield.    They fought until

correctional officers intervened. Mayfield was examined by a doctor, who determined that he had

a broken cheekbone and that he needed surgery.

         The State charged Perkins with second degree assault for the second fight. The trial court


admitted a surveillance video of the cell unit showing the fight between Perkins and Mayfield that

resulted in the charge.


         Perkins claimed self defense
                              -       and testified at trial that after the first fight, Mayfield


threatened to rape him when they were locked in their cell. Perkins also testified that " you can't

let somebody      continue     to talk like that     without    responding, saying something to him," and there' s


 the   code of   the jail,"   that if an inmate allows someone to insult him without fighting or standing

up for himself, that insult becomes true. 2 VRP at 240; 3 VRP at 294. Perkins then testified that

he went into his cell to wait for Mayfield to fight.


         On cross -examination, Perkins testified that Mayfield wanted to fight and that Mayfield


knew Perkins was coming after him. Specifically, in response to the State' s question as to whether

he wove through the seating area in the cell unit to sneak over to hit Mayfield,



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          A. There' s no sneaking.
          Q. Okay, so you were directly going after him?
          A. Well, he knew what I was doing the whole time.
          Q. He knew that you were going to come at him and beat him?
          A. The whole time he wanted to fight.


2 VRP     at   250.    Perkins further testified on cross -examination that Mayfield only hit him after

Perkins went after him.


          During the State' s cross -examination, Perkins interrupted the prosecutor, stating that

Mayfield       was   standing    outside     the   courtroom window       trying   to intimidate him.   The prosecutor


said that he did not see Mayfield. The trial court directed Perkins to answer the pending question,

stating that the trial         court    would      control   the   hallway. The prosecutor continued questioning

Perkins and defense counsel interrupted, asking the trial court if Mayfield was outside the

courtroom. Again, Perkins said that Mayfield was staring at him, and again, the prosecutor said

he did   not see      him. The trial court directed Perkins to answer the question and stated that it had


control of the courtroom.



          In closing arguments, the prosecutor argued that Perkins did not have the right to hit

Mayfield based         on   Mayfield' s insults.       The prosecutor referenced Perkins' testimony about " the

code of   the jail."     3 VRP     at   294. The prosecutor argued that the " code of the jail" did not make


Perkins' use of force reasonable or deprive Perkins of his free choice to exercise other options and


not   fight Mayfield. 3 VRP             at   294. The prosecutor argued that if Perkins was concerned for his


safety, " he had       a number of options aside             from [ fighting].     He could have gone to, you know,


exclusive      custody...      The Defendant did not have a right to defend himself because the Defendant


created   both    of   those   situations."     3 VRP at 294, 306. The prosecutor also suggested that Perkins




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No. 44533 -6 -II




was trying to distract the jury when he complained that Mayfield was outside the courtroom

because Perkins had just gotten caught giving contradictory testimony.

         During rebuttal argument, the prosecutor reminded the jury that they are expected to read

the   jury   instructions.      The prosecutor then rebutted Perkins' assertion that being insulted was a

good enough reason to fight by arguing that Perkins did not have reasonable grounds for believing

that he was about to be attacked and that the expectation of a future fight does not create the right

to use force.


           The prosecutor also argued that he felt threatened when he was examining Perkins and that

Perkins demonstrated            aggressive   tendencies      on   the    stand.    Perkins objected and moved for a


mistrial.      The trial court denied the mistrial and instructed the jury to disregard the prosecutor' s

comments about his personal feelings.


           The   prosecutor' s rebuttal argument continued without additional objections.                       He argued


that Perkins " was and is the aggressor" and that the jury saw " how quickly he was to rise to anger,

and   that is   suggestive of someone who' s          going to    attack someone."           3 VRP at 346. The prosecutor


also suggested that Perkins and defense counsel used " diverting tactics" when Perkins could not

change       his story   or   talk his way   out of   the situation.      3 VRP        at   346. " That' s what his Defense


Counsel did here earlier. And that' s what they get paid to do. Come here and divert your attention

from   what     really happened."        3 VRP at 346.


           The jury found Perkins guilty of second degree assault. Perkins stipulated to his criminal

history,     stating that " he   wants   to be   sentenced   today      and get   it   over with."   3 VRP at 368. During

sentencing, Perkins did not object to the prosecutor' s references to the applicable sentencing range

or Perkins' calculated offender score. The felony judgment and sentence showed that Perkins was



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on community custody when the assault took place, and that 1. point was added to his offender

score as a result. The trial court sentenced Perkins to a mid -range sentence. Perkins appeals.

                                                        ANALYSIS


A.       PROSECUTORIAL MISCONDUCT


         Perkins      alleges     that the   prosecutor   committed       misconduct    by (   1)   commenting on his

personal   feelings    about      Perkins' demeanor       while   testifying, ( 2) arguing Perkins' propensity for

aggression, (   3) misstating the law of self -defense and lowering the State' s burden of proof, (4)

offering his personal opinion on Perkins' credibility and introducing facts not in evidence, and (5)

disparaging     the   role of     defense    counsel.   Perkins also alleges that the cumulative effect of the


prosecutor' s misconduct requires reversal. Perkins' claims of prosecutorial misconduct fail.


         To prevail on a claim of prosecutorial misconduct, Perkins must show that the prosecutor' s


conduct was     both improper          and prejudicial.    State v. Emery, 174 Wn.2d 741, 756, 278 P. 3d 653

 2012) ( citing State       v.   Thorgerson, 172 Wn.2d 438, 442, 258 P. 3d 43 ( 2011)). Once a defendant


has demonstrated that the prosecutor' s conduct was improper, we evaluate the defendant' s claim


of prejudice under two different standards of review, depending on whether the defendant objected

to the   misconduct at       trial.   Emery,   174 Wn.    App.    at   760 -61.   If the defendant objected, he must


show 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 -61 ( citing State v. Anderson, 153 Wn. App.

417, 427, 220 P. 3d 1273, review denied, 170 Wn.2d 1002 ( 2009)).


         If the defendant did not object at trial, the defendant is deemed to have waived any error,

unless the prosecutor' s misconduct was so flagrant and ill intentioned. Emery, 174 Wn.2d at 760-

61 ( citing State     v.   Stenson, 132 Wn.2d 668, 727, 940 P. 2d 1239 ( 1997), cert. denied, 523 U. S.




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No. 44533 -6 -II



1008 ( 1998)).        The defendant is presumed to have waived any error by not objecting because

objections are required to prevent additional improper remarks and abuse of the appellate process.


Emery, 174 Wn.2d at 762. Therefore, when there is no objection, we apply a heightened standard

requiring the defendant to          show    that "( 1) `   no curative instruction would have obviated any

prejudicial effect on the jury' and ( 2) the misconduct resulted in prejudice that `had a substantial

likelihood of affecting the        jury   verdict. '   Emery, 174 Wn.2d at 761 ( quoting Thorgerson, 172

Wn.2d    at   455).    When reviewing a prosecutor' s misconduct that was not objected to, we focus

 less on whether the prosecutor' s misconduct was flagrant and ill intentioned and more on whether

the resulting   prejudice could     have been     cured."    Emery, 174 Wn.2d at 762.

         In closing argument, prosecutors are afforded wide latitude to draw and express reasonable

inferences from the evidence. State v. Reed, 168 Wn. App. 553, 577, 278 P. 3d 203, review denied,

176 Wn.2d 1009 ( 2012).           When analyzing prejudice, we do not look at the comment in isolation,

but in the context of the total argument, the issues in the case, the evidence, and the instructions

given   to the jury. State   v.   Yates, 161 Wn.2d 714, 774, 168 P. 3d 359 ( 2007), cent. denied, 554 U. S.


922 ( 2008).     We also presume that the jury follows the court' s instructions. Anderson, 153 Wn.

App. at 428.

         1.        Arguments based on the prosecutor' s personal feelings


         During closing arguments, the prosecutor stated:

         And ifyou want to talk about is [ sic] being threatened, you saw how the Defendant
         acted when Ipushed his buttons. I thought I was being threatened. I thought I was
         going to be attacked, and did I? Did I jump over that box and punch him? I didn' t.
         I was a little concerned. But I didn' t punch him. Twenty minutes he waited as John
         Mayfield walked around .. .




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3 VRP   at    339 -40 (    emphasis        added) (    noting the        portion   Perkins    assigned     error   to).   Perkins


objected.     Outside the       presence of      the   jury,   Perkins     moved    for   a mistrial.    The trial court denied


the motion. 1 The trial court instead instructed the jury as follows:

        I just    need    to          of one thing: That the lawyers' remarks, statements,
                               remind you of —

        and arguments are intended to help you understand the evidence and apply the law.
        It' s important, however, for you [to] remember that the lawyers' statements are not
        evidence. You must disregard any remark, statement, or argument that isthat is
        not supported by the evidence or the law in my instruction —instructions. The
        evidence         is the   testimony     and    the     exhibits.    The Prosecutor made an argument

        regarding Mr. Perkins' demeanor on the stand yesterday and his feelings about that.
        You are instructed to disregard that.


3 VRP at 345 -46.


        Perkins asserts that this jury instruction was insufficient to cure the prejudicial effect of the

prosecutor' s statements and that the prosecutor' s statements could not be remedied by a curative

instruction, because           they   were   flagrant, ill intentioned,       and prejudicial.        Perkins also alleges that


the trial court should have instructed the jury not to consider the propensity evidence.

        Perkins has failed to show that the curative instruction was insufficient to cure the

prejudicial effect.        The jury instruction specifically targeted the wrongful conduct by instructing

the jury to disregard the prosecutor' s statements regarding his personal feelings about Perkins'

demeanor      on   the   stand.       Additionally, the State presented multiple witnesses who testified that

Perkins was the aggressor in the fight, and showed a video of the fight. Perkins testified that he

went after    Mayfield         and    hit him first. In the context of the entire argument, all of the evidence,




1 Perkins does not appeal the trial court' s denial of his motion for mistrial; he only appeals the
prosecutor'   s    improper       statements.    His    motion     for   mistrial preserved     the     issues for   appeal.   State
v.Lindsay,     180 Wn.2d 423, 430 -31, 326 P. 3d 125 ( 2014) ( finding
                                                                    that that a motion for mistrial
during the prosecutor' s closing arguments preserved the challenge for prosecutorial misconduct).


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No. 44533 -6 -II




and the jury instruction, Perkins has not shown a substantial likelihood that any resulting prejudice

from the     prosecutor' s     statements    affected    the   jury' s.   verdict.   Perkins' claim of prosecutorial


misconduct based on the prosecutor' s statements regarding his personal feelings fails.

        2.            Arguments based on propensity

        Perkins argues that the following statements were improper because the prosecutor

commented on Perkins' propensity for aggression.

        The point of everything is that the Defendant is the aggressor. He was and is the
        aggressor. You did see his temper. You did see how quickly he was to rise to anger,
        and that is suggestive of someone who 's going to go attack someone.      It is very
        suggestive ofsomeone who is going to attack someone. When he' s caught in certain
        areas where he' s unable to change his story or talk his way out of it, the Defendant
        was —quickly resorted to flashing anger, quickly.



3 VRP   at   346 ( emphasis      added) ( noting   the   portion   Perkins    assigned error      to).   Perkins did not


object; accordingly, he has waived any error unless he can show that the " misconduct was so

flagrant   and   ill intentioned that   an   instruction   would not       have   cured   the   prejudice."   Emery, 174

Wn.2d at 761 ( citing Stenson, 132 Wn.2d at 727).

        Perkins'        claim fails because even assuming, without deciding, that the prosecutor' s

statements were improper, Perkins has failed to show that any resulting prejudice could not have

been   cured     by   an   instruction. The State   presented       strong    evidence of       Perkins'   guilt.   The State


presented multiple witnesses who testified that Perkins was the aggressor in the fight and the jury

viewed a video of the fight. Perkins himself testified that he hit Mayfield first. Thus, in the context

of the entire argument and the. evidence, Perkins has not shown that the misconduct was so flagrant


and ill intentioned that it could not have been cured by a jury instruction or that the resulting

prejudice had a substantial likelihood of affecting the jury' s verdict. Therefore, we deem Perkins'




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No. 44533 -6 -II



claim of prosecutorial misconduct based on the prosecutor' s statements regarding propensity

waived.




        3.            Prosecutor' s statements relating to the law of self -defense

        Perkins argues that the prosecutor committed misconduct by misstating the law of self -

defense and lowering the State' s burden of proof. Perkins claims that the prosecutor did this by

improperly arguing that Perkins' use of force was not lawful because Perkins did not retreat or ask

for protection, that force is unlawful in response to threatening words, and that Perkins could not

lawfully use force to defend himself until he was being physically attacked.

        During closing, the prosecutor argued:

        He     was    there only for      a   three -day stint   in DOC. He knew he         was   going. There' s
        no reason for him to really be concerned about an ongoing, prolonged issue about
        being a " bitch" or a " punk." And ifthere was such a concern, he had a number of
        options aside from that. He could have gone to; you know, exclusive custody. He
        could     have    gone, pushed one          of any of these buttons here,         and asked,         say, " You
        know      what,   Ifeel like I'm       being   threatened." "     I've gotjust a little bit of time left to
        serve out on        my DOC hold,          and   I   can go." "    Can you guys help me?" " Can you
        get me        into protective custody ?" He didn' t do that. Instead, when John Mayfield

        was going to throw away his water bottles, the Defendant went and hit him.

3 VRP   at   294 -95 (   emphasis added) (         noting the portion Perkins assigned error to).

        He' s there until the next morning. He had other options, and he chose to show that
        he wasn' t a punk bitch. All these red "X's" are other options, and not once did he
        take those other options.           Instead, he created an option. Not something that was
        present       tense.   He   was   dealing with something way down in the future —if it ever.
        occurred.



3 VRP   at    339 -40 ( emphasis     added) (      noting the portion Perkins assigned error to).

          Sure,   they    were            Sure, Mr. Mayfield probably had some colorful
                                 saying things.
        language, but does that really give the Defendant the right to go and beat up Mr.
        Mayfield? The answer is " no." It doesn' t give him the right to do that. The only

        thing that Mr. Mayfield was doing was insulting him. Now there 's an old saying,
             Sticks   and stones    may break my bones, but              words   may   never   hurt   me."    And you




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No. 44533 -6 -II



        heard something about the code of the jail and how, you know, you call someone a
             a "   bitch"     or a " punk, "you' ve just made        them   into   a "   bitch"   or a " punk" unless


        they stand upfor themselves. That' s a choice. That' s a choice that someone makes
        to either abide by that code or not abide by that code. And the Defendant made a
        choice to abide by that code.

3 VRP   at   293 -94 ( emphasis         added) (   noting the portion Perkins assigned error to).

                       Now his       being   attacked — that is a really, really important distinction here
        yet, again, and this whole idea of what' s self -defense is about. That the Defendant
        had to have reasonable groundsfor believing that he is being attacked and to stand
        his ground. Is being attacked. That 's present tense. Right then, right there, he gets
        to defend himself. Not something in the future, not something an hour -and -a -half
        later, then,         right   then, right now,   present   tense — is       being.    That' s what has to be
        going through            his brain. Is     being    attacked.   That' s what justifies his right to go
        andbeat up John Mayfield. You saw the [...]                     video. Was he being attacked? No.

        What he did was — he kicked off his slippers, went around these tables, and went at
        John Mayfield who was not expecting him.

3 VRP   at   338 (     emphasis added) ( noting       the   portion   Perkins      assigned error     to).   Perkins did not


object to these statements at trial.


        Viewing the prosecutor' s statement in the context of the total argument, the prosecutor did

not misstate the law. Rather, the prosecutor argued that the facts do not support Perkins' claim of

     defense.
self -             "   A prosecutor can certainly argue that the evidence does not support the defense

theory."     State      v.   Lindsay,   180 Wn.2d 423, 431 -32, 326 P. 3d 125, 130 ( 2014) (                     citing State v.

Russell, 125 Wn.2d 24, 87, 882 P. 2d 747 ( 1994),                       cert.   denied, 514 U. S. 1129 ( 1995)).            The


prosecutor does not commit misconduct by arguing reasonable inferences from the facts in

evidence. State v. Smith, 104 Wn.2d 497, 510 -11, 707 P. 2d 1306 ( 1985)).




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No. 44533 -6 -II



         The prosecutor' s statements mirror the language ofthe jury instruction and do not misstate

the law.3 The prosecutor argued that, based on the circumstances, Perkins' use of force was not

reasonable. The prosecutor' s statements do not misstate the law of self -defense, lower the State' s

burden   of proof, or        contradict   the   jury   instructions.    The prosecutor' s statements were not


improper.


         Even if the prosecutor' s statements were improper, Perkins has not shown that the


misconduct was so flagrant and ill intentioned that it could not have been cured by an instruction.

Moreover, as stated above, the State presented strong evidence against Perkins. In the context of

the entire argument and the evidence, Perkins has not shown a substantial likelihood that any

resulting prejudice affected the jury' s verdict, and therefore, his claim of prosecutorial misconduct

fails.


         4.        Arguing facts not in evidence and offering a personal opinion on Perkins'
                   credibility


         Perkins alleges that the prosecutor argued " facts" not in evidence and provided a personal

opinion of Perkins' credibility by suggesting that Perkins fabricated a diversion. Br. of Appellant

at 18.


         When I had him pinpoint it on that, and he couldn' t get out of that statement, as a
         person who knew he was caught in that statement, he wanted to divert your
         attention.   He   wanted you all       to think, " Oh, my     goodness."      He was really being
         intimidated    by   John Mayfield. So         what   does the Defendant do? " Tell your client,
         tell your victim to quit     intimidating      me. "   And   what   did you   guys all   do?   You all




2 " Number 14A. It is lawful for a person who is in a place where that person has a right to be and
who has reasonable grounds for believing that he is being attacked to stand his ground and defend
against such attack by the use of lawful force. The law does not impose a duty to retreat." 3 VRP

at288.



3 Perkins does not challenge the self -defense instructions given to the jury.

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No. 44533 -6 -II



         turned      and   looked    at   doors. You looked           out   there,   and you forget for a brief
         moment what         he   was   saying. " John was in,this corner intimidating me." And then,
          I knew it        was on,    so I kicked off my slippers." Defendant' s right therethere' s

         his   slippers.     Where'    John? Right there walking past Table 3 — right there. Is he
                                          s

         even    looking at       the Defendant? Is he saying, " Let' s go. Let' s fight. " Now, he' s
         not.    John' slooking           at   the   ground,   looking      away. And look at the Defendant; he
         just goes over to him. Let' s watch that.

3 VRP    at   302 -03 (   emphasis added) ( noting             the   portion   Perkins   assigned error   to). Perkins did not


object to the statements at trial.


         Perkins has not shown that the prosecutor argued facts outside of the record. Prosecutors

are afforded wide          latitude to draw          and express reasonable          inferences from the     evidence.   Reed,


168 Wn.       App.   at   577.    The prosecutor argued that Perkins wanted the jury to think that .he was

intimidated     by   Mayfield.       This argument is a reasonable inference from the facts on the record,4

and from Perkins' theory of self -defense. Further, the prosecutor' s statement that the jury "turned

and looked at the doors" is a recitation of what happened in the courtroom, not an argument of

facts not in evidence. 3 VRP at 302.


         Perkins also has not shown that the prosecutor offered his own opinion about Perkins'


credibility..    Perkins properly notes that there is no evidence to suggest that Mayfield was not

outside the courtroom. However, the prosecutor did not say that he believed Perkins was lying or

that there was evidence that Perkins                   was   lying. He recounted Perkins' testimony, which was on

the record, and suggested that Perkins interrupted him to divert the jury' s attention from the




4 The prosecutor referenced Perkins' interruption during the State' s cross -examination, when
Perkins said, "[ w]hy is your witness trying to intimidate me, Your Honor, now by standing outside
that   window and         staring   at me."      2 VRP at 253.



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No. 44533 -6 -II



question, which     is   a reasonable   inference from the facts        on   the   record.     The prosecutor did not


offer a personal opinion and the statements were not improper.

        Even if the statements were improper, Perkins has not shown that the misconduct was so


flagrant and ill intentioned that it could not have been cured by an instruction. Moreover, the State

played a video of the fight, and presented multiple witnesses testifying that Perkins was the

aggressor in the fight. Perkins testified that he went after Mayfield and hit him first. In the context


of the entire argument and the evidence, Perkins has not shown a substantial likelihood that any

resulting prejudice affected the jury' s verdict. Therefore, Perkins' challenge fails.

        5.         Comments disparaging defense counsel

        Perkins alleges that the prosecutor' s comments about Perkins and defense counsel were


disparaging   and   flagrant, ill intentioned,    and prejudicial.       Perkins assigns error to the following

statements made by the prosecutor during closing arguments:

        When he' s caught in certain areas where he' s unable to change his story or talk his
        way out of it, the Defendant was —quickly resorted to flashing anger, quickly. And
        if that didn' t work for him, then he used diverting tactics. That' s what his Defense
        Counsel did here       earlier.   And that' s   what     they   get paid    to   do.   Come here and
        divert   your attention   from     what   really happened.
                                                           What really happened is the
        Defendant assaulted John Mayfield twice. He did it without lawful authority.

3 VRP   at   346 ( emphasis    added) (   noting the   portion   Perkins     assigned error      to.)   Perkins did not


object to the above statement, and the State concedes that the above statement was improper, but

argues that it was not prejudicial.


        A prosecutor may not " disparagingly comment on defense counsel' s role or impugn the

defense lawyer'     s   integrity." Thorgerson, 172 Wn.2d at 451 ( citing State v. Warren, 265 Wn.2d

17, 29 -30, 195 P. 3d 940 ( 2008)).       Here, it is clear that the prosecutor made a statement saying that




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No. 44533 -6 -II



the defense       counsel    is   paid   to divert        attention,     and     that is improper.        We accept the State' s


concession that the prosecutor' s statement was improper.

          But, Perkins has not shown that the misconduct was so flagrant and ill intentioned that it

could not       have been    cured   by    a   jury   instruction.         Moreover, as previously discussed, given the

context of the entire argument and the evidence, Perkins has not shown a substantial likelihood


that any resulting prejudice affected the jury' s verdict.

          6.           Cumulative effect


          Perkins       argues   that the alleged improper             statements, "     whether considered individually or

in the   aggregate, require reversal."              Br.   of   Appellant    at   20. ‘" [ T] he cumulative effect of repetitive


prejudicial prosecutorial misconduct may be so flagrant that no instruction or series of instructions

can erase      their   combined prejudicial effect.               Lindsay, 180 Wn.2d at 443 ( quoting In re Glasmann,

175 Wn.2d 696, 707, 286 P. 3d 673 ( 2012));                     State v. Walker, 164 Wn. App. 724, 738, 265 P. 3d 191

 2011) ( Cumulative error applies when the prosecutor makes " improper comments not just once


or twice, but frequently. ").

          Here, the prosecutor committed misconduct when he disparaged the role of defense


counsel,       saying that it is    paid   to divert the         jury' s    attention.    Courts apply the cumulative error

doctrine to       cases    of repetitive       or   frequent     misconduct —one          instance is neither repetitive nor


frequent. Accordingly, the cumulative error doctrine does not apply here.

B. OFFENDER SCORE CALCULATION


          Perkins alleges that the trial court erred by .miscalculating his offender score by adding 1

point    because he       was under      community custody             at   the time     of   the   assault.   Interpretation of the




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Sentencing Reform Act (SRA) is a question of law, which we review de novo. State v. Jones, 172

Wn.2d 236, 242, 257 P. 3d 616 ( 2011).


          The SRA provides that 1 point is added if the present conviction is for an offense committed

while    the    offender was under             community custody. RCW 9. 94A.525( 19).              Community custody is

tolled    if    a    defendant is in          confinement, "     unless the offender is detained pursuant to RCW


9. 94A.740           or   9. 94A. 631 ...        for confinement pursuant to sanctions imposed for violation of


sentence        conditions,         in   which   case,   the   period   of   community custody      shall not       toll."   RCW


9. 94A. 171( 3)( a).


          The State argues that Perkins cannot challenge his offender score on appeal because he

stipulated          to his   criminal       history. Washington courts " hold that in general a defendant cannot

waive     a challenge          to   a miscalculated offender score"            when   based   on   legal   error.     In re Pers.


Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P. 3d 618 ( 2002). "[                            T]he court may rely on the

defendant' s stipulation or acknowledgement of prior convictions to calculate the offender score."


State    v.   James, 138 Wn.             App. 628, 643,        158 P. 3d 102 ( 2007), review denied, 163 Wn.2d 1013


 2008).        When a defendant stipulates to his prior convictions to calculate his offender score, he

cannot object to the calculation on appeal. State v. Cadwallader, 155 Wn.2d 867, 875, 123 P. 3d

456 ( 2005).


              Here, Perkins agreed to his criminal history, and he expressed to the court that he wanted

to get sentencing over with and did not want to contest his criminal history. The criminal history

that Perkins stipulated to listed his prior convictions and showed that he was on community

custody        at   the time     of   the   offense.   Taking the record as a whole, because Perkins affirmatively




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agreed to his criminal history and the fact that he was on community custody at the time of his

offense, he cannot challenge it on appeal.


        We affirm Perkins' conviction and sentence.


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

Washington Appellate Reports, but will be filed for public record pursuant to RCW 2. 06. 040, it is


so ordered.




 We concur:




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