      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


STATE OF WASHINGTON,                         )          No. 76632-5-I
                                             )
                    Respondent,              )          DIVISION ONE
                                             )
             v.                              )          UNPUBLISHED OPINION
                                             )
KAREN LYNN KLEINSMITH,                       )
                                             )
                    Appellant.               )
                                             )         FILED: November 13, 2018


       ANDRUS, J. — A jury convicted Karen Lynn Kleinsmith of second degree

assault with a deadly weapon after she chased her neighbor, Sara Trowbridge,

down the hallway of their apartment building while holding a knife. Kleinsmith

appeals, alleging that at trial, the prosecutor committed misconduct by asking the

witnesses to opine as to Trowbridge's credibility. Kleinsmith also challenges a jury

instruction, contending that it did not state all the elements of the crime. We affirm

 Kleinsmith's conviction.

                                       FACTS

       Kleinsmith and Trowbridge have varying accounts of what happened on

 December 13, 2016. It is undisputed that in December 2016, Kleinsmith and

Trowbridge lived in adjacent apartments in the Ondine Apartments in Kirkland.

 Trowbridge testified that on December 13, 2016, as she walked past Kleinsmith's
No. 76632-5-1/2

Apartment 409, she heard a woman say "Get the fuck out." When Trowbridge

turned around,she saw a woman holding a butcher knife. Trowbridge testified that

the woman screamed "Don't come back" and began to chase her down the

hallway. Trowbridge immediately fled to the building's front office and reported the

event to Hannah Weber, an employee of Ondine, who called 9-1-1. Trowbridge

described her alleged attacker as a blonde female wearing a black t-shirt and

shorts, which was recorded by the 9-1-1 call.

        Multiple officers responded to the call, including Corporal Kimberly Baxter,

Officer Elizabeth Voss, and Detective Sean Carlson. Weber identified the resident

of Apartment 409 as Kleinsmith and testified that Kleinsmith matched the physical

description Trowbridge provided. Weber communicated this information to the

officers who arrived on scene. The officers discovered that Kleinsmith had an

outstanding arrest warrant from pending cases in Issaquah Municipal Court.1

When the officers went to Apartment 409, they knocked loudly on the door,

announced themselves repeatedly, and called several phone numbers associated

with Kleinsmith, until the officers finally used a key given to them by Weber to enter

the apartment.

        When the officers entered Apartment 409, they heard a woman screaming

inside, so they ordered her to walk toward the front door with her hands visible.




         1 Kleinsmith was charged with assault in the fourth degree, domestic violence, for allegedly
attacking her elderly father with a kitchen knife, as well as a violation of a domestic violence no-
contact order. Kleinsmith's father suffers from pre-dementia. While the court's findings of fact state
that the charges are pending in Kirkland Municipal Court, the Prosecuting Attorney Case Summary
states that the cases are pending In Issaquah Municipal Court.
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No. 76632-5-1/3

Kleinsmith emerged from the back of the apartment and told the officers that she

had been sleeping and did not know what was happening.

      The police placed Kleinsmith in handcuffs and advised her of her Miranda2

rights, at which point she invoked her right to have an attorney present for

questioning. Though the police did not continue to question Kleinsmith after she

invoked her rights, Kleinsmith did ask Detective Carlson to go back into her

apartment to retrieve some clothing, and she later asked Corporal Baxter to

retrieve her wallet and phone. She engaged in brief conversation with both as to

where the items could be located and gave them permission to enter her apartment

for that purpose. Detective Carlson noticed a large knife by the kitchen sink, and

Corporal Baxter placed it into evidence.

       As the police escorted Kleinsmith out of the building, Trowbridge identified

Kleinsmith as her attacker, telling Detective Carlson she was "one hundred

percent" sure that it was Kleinsmith.

       At trial, the State called five witnesses: Weber, Corporal Baxter, Officer

Voss, Detective Carlson, and Trowbridge. Although Trowbridge was the sole

witness to the incident, each witness testified as to the events of that day.

Kleinsmith did not testify. The prosecutor asked Weber whether Trowbridge's

story to the officers on scene was consistent with what Trowbridge had told her

immediately following the incident. The prosecutor also asked Detective Carlson

whether Trowbridge's story changed between when the officers first arrived on




       2 Miranda   v Arizona 384 U.S. 436, 865. Ct. 1602, 16 L. Ed. 2d 694(1966).

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scene and her formal statement taken later that day. Both Weber and Carlson

testified that Trowbridge's story remained consistent throughout.

      A jury found Kleinsmith guilty of assault in the second degree. Kleinsmith

was sentenced to four-and-a-half months In King County Jail, and six months in

community custody, and ordered to have no contact with Trowbridge for 10 years.

The court also ordered Kleinsmith to obtain mental health treatment.

                                    ANALYSIS

   A. Misconduct Related to the Witness's Credibility

      Kleinsmith alleges that the prosecutor committed misconduct when he

asked two of the witnesses to opine on Trowbridge's credibility. The misconduct,

she contends, was prejudicial as Trowbridge was the only witness to, and alleged

victim of, the incident with Kleinsmith. The State concedes that witness testimony

regarding the consistency of Trowbridge's statements was erroneously admitted,

but contends that it was not prejudicial.

       Evidence that a witness repeatedly told the same story out of court is not

admissible to corroborate or bolster the witness's testimony. State v. Alexander,

64 Wn. App. 147, 822 P.2d 1250 (1992). Thus, the prosecutor improperly

attempted to bolster Trowbridge's credibility when he asked Weber and the officers

whether Trowbridge's story remained consistent at the scene and in court.

       Kleinsmith, however,failed to object to the prosecutor's questions or to the

witnesses' testimony at trial. An evidentiary error, such as the admissibility of

testimony regarding Trowbridge's credibility, is not of constitutional magnitude.

State v. Powell, 166 Wn.2d 73, 84, 206 P.3d 321 (2009). And the failure to object


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No. 76632-5-1/5

to impermissible statements by a prosecutor constitutes a waiver of the objection

unless there is a substantial likelihood it affected the jury's verdict. State v.

Gauthier 189 Wn.App. 30, 37, 354 P.3d 900(2015). When the defendant fails to

object at trial, the defendant must also prove that the statements were so flagrant

or ill-intentioned that the prejudice could not have been cured by a timely objection.

Id. at 38.

       Kleinsmith's defense at trial was that Trowbridge had misidentified her as

the attacker. She asserts that the cumulative effect offour witnesses vouching for

Trowbridge's credibility prejudiced the jury into believing Trowbridge's testimony

that Kleinsmith was the woman who charged her with the knife. We disagree

because there was ample evidence corroborating Trowbridge's testimony.

       First, Kleinsmith matched the physical description of Trowbridge's attacker.

Second, Weber testified that Trowbridge's only other neighbor, in Apartment 413,

was a male resident and that there were no residents on Trowbridge's floor

matching the physical description Trowbridge provided. Moreover, Trowbridge

heard a woman scream "Get the fuck out," as she passed Kleinsmith's apartment.

She subsequently identified Kleinsmith as her attacker as Kleinsmith was being

escorted out of the apartment building by police, stating she was "one hundred

percent" sure Kleinsmith was the woman wielding the knife.

       Kleinsmith points to the fact that Trowbridge insisted the knife she saw was

a butcher knife, while the knife found in Kleinsmith's kitchen was a steak knife.

Kleinsmith also points out that the attacker's clothing as described by Trowbridge

was different than the clothing Kleinsmith was wearing when arrested. She argues


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that these inconsistencies raise serious questions as to the credibility of

Trowbridge's overall story that Kleinsmith was her attacker. However, it is not

implausible that Kleinsmith changed clothing during the half hour between the

event and her encounter with the police. And the fact that no other resident on the

floor other than Kleinsmith matched Trowbridge's description of her assailant,

combined with the location of the altercation, is strong evidence that Kleinsmith

was in fact her attacker.

       Finally, Kleinsmith told police she had been sleeping in her apartment and

had not heard the police, a fairly incredible story considering the duration of time

the police stood outside her door attempting to get her attention. Corporal Baxter

testified she knocked loudly and identified herself as the Kirkland Police repeatedly

for 35 to 40 minutes.

       We cannot say from this record that there is a substantial likelihood that the

Inadmissible credibility testimony changed the outcome of the trial.

       Finally, Kleinsmith does not explain why a timely curative instruction would

not have eliminated any resulting prejudice. Had counsel objected the first time

the prosecutor asked a witness about the consistency of Trowbridge's statements,

the objection would have been sustained and not asked again. Moreover,the jury

could have been instructed to disregard any testimony regarding this issue. The

questions were not so flagrant or ill-intentioned that a curative instruction would

have been futile in remedying any prejudice.




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No. 76632-5-1/7

   B. Misconduct Related to the Law of the Case

       Kleinsmith further contends that the prosecutor misstated the law of the

case during closing argument. In his closing argument, the prosecutor said:

      As I said before, Ms. Trowbridge talked to Ms. Weber. She told Ms.
      Weber what had just happened. She talked to Corporal Baxter, she
      talked to Detective Carlson, she talked to Officer Voss, and then she
      talked to Detective Carlson again and gave a recorded statement
      which was then transcribed. And then she testified in front of you
      under oath yesterday. And each and every time, she's consistent.
      The details are consistent.

Kleinsmith alleges that referencing the consistency of Trowbridge's testimony

during the closing argument was not only improper but misstated the law of the

case as set out in Instruction No. 1. Kleinsmith did not object to these statements.

On appeal, Kleinsmith alleges that the prosecutor essentially instructed the jury to

give great weight to the number of times it heard Trowbridge's story from the five

different witnesses.

       Jury Instruction 1 said in part:"The weight of the evidence as to a fact does

not necessarily depend on the number of witnesses who testify about it. The State

asserts that the instructional language on which Kleinsmith relies was merely a

guide to the jury for how to evaluate evidence. The State, however, concedes that

instructions to which the State does not object become "law of the case," State v.

Hickman,135 Wn.2d 97, 102,954 P.2d 900(1998), even if the instructions impose

a burden not otherwise required. State v. Johnson, 188 Wn.2d 742,756,399 P.3d

507 (2017). The State did not object to Instruction No. 1 proposed by the trial

court. The court need not determine whether the language on which Kleinsmith




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No. 76632-5-1/8

relies is a statement of law or merely a guide. The State essentially concedes the

point.

         Misstating bedrock legal principles on which our criminal justice system

stands constitutes prosecutorial misconduct. State v. Veneoas, 155 Wn.App.507,

525, 228 P.3d 813 (2010) (misstating the law on presumption of innocence Is

flagrant misconduct warranting reversal). We do not find the prosecutor's closing

argument to be a misstatement of basic criminal law that would render it

misconduct. And as indicated above, even if it were misconduct, Kleinsnnith has

not established that the remark at trial was so flagrant and ill-Intentioned that it

could not have been cured with a jury instruction. We conclude the closing

argument did not prejudice Kleinsmith's right to a fair trial.

   C. Jury Instruction 8

         Kleinsmith argues that Instruction 8, the "to-convict" instruction on the

elements of assault did not instruct the jury on the element of intent. We reject this

argument.

         We review errors Injury instructions de novo. State v. Becklin, 163 Wn.2d

519, 525, 182 P.3d 944(2008). The to-convict instruction generally must contain

all essential elements of the crime. State v. Mills, 154 Wn.2d 1, 7-8, 109 P.3d 415

(2005). In State v. Byrd, 125 Wn.2d 707, 715-16, 887 P.2d 396 (1995), the

Supreme Court reversed an assault conviction on the ground that former WPIC

35.50, the definition of assault, relieved the State of the burden of proving an

element of its case because the jury was not instructed that it had to find that the




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No. 76632-5-1/9

defendant acted with the specific Intent to cause apprehension or fear of bodily

harm. The relevant paragraph of WPIC 35.50 at the time of Byrd's trial provided:

       An assault is also an intentional act, with unlawful force, which
       creates in another a reasonable apprehension and fear of bodily
       injury even though the actor did not actually intend to inflict bodily
       Injury.
This paragraph in WPIC 35.50 was deemed to be an erroneous statement of the

law because it allowed a jury to find only that the defendant acted intentionally and

the result of the act was the creation of a reasonable apprehension and fear of

bodily injury, rather than the defendant acted with the intent to create this

apprehension or fear. Byrd, 125 Wn.2d at 715.

       The instruction in this case did not omit the specific intent element and is

distinguishable from the instruction deemed improper In Byrd. Instruction 8

provided in its entirety:

              To convict the defendant of the crime of assault in the second
       degree, each of the following elements of the crime must be proved
       beyond a reasonable doubt:
             (1) That on or about December 13, 2016, the defendant
       assaulted Sara Trowbridge with a deadly weapon; and
              (2)That this act occurred in the State of Washington.
              If you find from the evidence that each of these elements have
       been proved beyond a reasonable doubt, then it will be your duty to
       return a verdict of guilty. On the other hand, if, after weighing all of
       the evidence, you have a reasonable doubt as to any of these
       elements, then it will be your duty to return a verdict of not guilty.

            For purposes of this instruction:
          • An assault is an act done with the intent to create in another
            apprehension and fear of bodily injury, and which in fact
            creates in another a reasonable apprehension and imminent
            fear of bodily injury even though the actor did not actually
            intend to inflict bodily injury.
          • A person acts with intent or intentionally when acting with the
            objective or purpose to accomplish a result that constitutes a
            crime.

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No. 76632-5-1/10

          • Deadly weapon means any weapon, device, instrument,
            substance, or article, which under the circumstances in which
            it is used, attempted to be used, or threatened to be used, is
            readily capable of causing death or substantial bodily harm.

(emphasis added).

Instruction 8 followed the Washington Pattern Jury Instructions(VVPIC)for assault

in the second degree, WPIC 35.19, the revised pattern jury instruction defining

assault, WPIC 35.50, the pattern jury instruction defining intent, WPIC 10.01, and

the pattern jury instruction defining "deadly weapon," WPIC 2.06.01. The third

paragraph of WPIC 35.50 has been amended to include the specific intent element

deemed missing by Byrd. Because Instruction 8 correctly instructed the Jury to find

that Kleinsmith acted with the specific intent to create apprehension and fear of

bodily injury, there was no instructional error requiring reversal.


       Affirmed.



                                                   ,ilaceha,z-, a.
WE CONCUR:




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