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    IN THE COURT OF APPEALS OF THE STATE OF W.

                                                   DIVISION II

STATE OF WASHINGTON,                                                              No. 45694 -0 -II


                                         Respondent,


        V.



 SHAWN ERIC CHRISTOPHER,                                                     UNPUBLISHED OPINION


                                         Appellant.




       SUTTON, J. —        Shawn E. Christopher appeals his conviction and sentence for second degree

assault, violation of a domestic violence no contact order, and witness tampering. He argues that

 1) Substitute House Bill 1188 ( SHB), Laws of 2011, chapter 166, section 1, violated the single -


subject and subject -in -title requirements of article II, section 19 of the Washington Constitution,

2) the prosecutor committed prosecutorial misconduct, and ( 3) the trial court erred by failing to

consider   his   current   or    future ability to pay legal financial         obligations (   LFOs).   In addition,


Christopher asserts additional claims in his statement of additional grounds ( SAG).

       We hold that Christopher ( 1) does not have standing to challenge the constitutionality of

SHB 1188 because he was convicted of second degree assault by strangulation, and SHB 1188

addressed    only   second      degree   assault   by   suffocation; (   2) cannot establish prejudice based on a


claim of prosecutorial misconduct; and ( 3) cannot challenge his LFOs because he waived this issue


under RAP 2. 5( a) by failing to object at sentencing. We reject Christopher' s additional claims in
his SAG. We       affirm   his   conviction and sentence.
No. 45694 -0 -II



                                                               FACTS


          On August 22, 2013, Christopher and his girlfriend, Christina Gutierrez, were drinking

with   friends in their          apartment.    Christopher accused Gutierrez of staring at their mutual friends,

and   they   started      to    argue.   Christopher put his hands around Gutierrez' s neck and choked her for

about a minute.           When Christopher let her          go,   Gutierrez     called     911. Christopher left the apartment


and the police later apprehended him.


             The next day, the trial court issued a no contact order against Christopher, which

prohibited him from contacting Gutierrez in person or through others. Later that month, Gutierrez

received a call from an unfamiliar number. When she called the number back the caller identified

himself      as   a   friend     of   Christopher'   s   from jail, but       refused      to   state   his    name.     The caller read


Gutierrez a letter from Christopher, which asked Gutierrez to go to the police and tell them she

was lying about Christopher strangling her. The caller told Gutierrez that Christopher.was looking
at a second           strike.     A few days later, Gutierrez received texts from the same number asking

questions         about    their "    mutual   friend."     Report       of   Proceedings ( RP) ( Nov.                 12, 2013) at 166.


Following          this    second        exchange,       Gutierrez   called the            police       and     told    them   about the


communications.




             The      police     later identified Jacinto Hausinger             as   the   caller and         text   messenger.   He and


Christopher met when they shared the same jail cell in late August 2013. Hausinger admitted that

Christopher           asked     him to   contact   Gutierrez   and read       her the letter. He also admitted to, trying to


persuade Gutierrez to change her story.

          The State charged Christopher with assault in the second degree, violation of a domestic

violence no contact order, and tampering with a witness. At trial, Gutierrez testified and identified

                                                                     2
No. 45694 -0 -II



a number     of pictures   taken of her        neck   following   the    assault.   She identified the red lines of


handprints, a hickey, bruising, and Christopher' s thumbprint on her neck.

         Officer Therman Bibens, who responded to Gutierrez' s 911 call, also testified. During his

direct testimony, the      prosecutor asked      Bibens if he knew Christopher.              Bibens      responded, "    I' ve


met [   Christopher] before       on some previous calls at       that   same   location."     RP ( Nov. 13, 2013) at


234. Christopher objected to the testimony, which the trial court sustained and ordered the jury to

 disregard the last   remarks."      RP ( Nov. 13, 2013) at 234- 35.


          Christopher then moved for a mistrial on the basis that Bibens' testimony regarding his

pre -arrest contacts with Christopher was especially prejudicial to his case. The trial court denied

the motion for a mistrial ruling that the " sustaining of the objection and the order for the jury to

disregard the     comment    is   sufficient   in the   circumstance."      RP ( Nov. 13, 2013)          at   238.   The trial


court   later instructed the jury that "[ i] f evidence was not admitted or was stricken from the record,


then you are not. to     consider     it in reaching      your verdict."      Clerk'   s   Papers   at   53 (   quoting Jury

Instruction 1).    The instruction also stated that if the trial court had " asked you to disregard any

evidence, then you must not discuss that evidence during your deliberations or consider it in

reaching   your verdict."     CP at 53- 54 ( quoting Jury Instruction 1).

          The jury found Christopher guilty as charged of second degree assault, violation of a

domestic violence no contact order, and witness tampering. The trial court denied Christopher' s

post -trial motion for arrest of judgment and for new trial. The trial court sentenced Christopher to

26   months,   imposed   discretionary    LFOs totaling $ 1, 409.25, and did not inquire into his current or


future ability to pay LFOs.          Christopher did      not object     to the imposition     of   LFOs.        Christopher


appeals.




                                                             91
No. 45694 -0 -II



                                                                 ANALYSIS


            Christopher       argues     that ( 1)       SHB 1188 violated the single -subject and subject -in -title

requirements of article II, section 19 of the Washington Constitution, (2) the prosecutor committed


prosecutorial misconduct by eliciting impermissible propensity evidence, and ( 3) the trial court

erred
         by failing    to    consider     his     current or      future ability to pay LFOs..             In addition, Christopher


asserts a number of additional claims                         in his SAG. We hold that Christopher ( 1) does not have


standing to challenge the constitutionality of SHB 1188 because he was convicted of second degree
                                           SHB 1188                                              degree             by   suffocation, ( 2)
assault     by   strangulation, and                             addressed       only   second             assault




cannot establish that the prosecutor' s conduct in eliciting testimony was prejudicial, and (3) cannot

challenge his LFOs because he waived this issue under RAP 2. 5( a) by failing to object at

sentencing.         We      reject     Christopher'       s   additional        SAG    claims.     We affirm his conviction and


sentence.




A.          Standing

            We review whether a party has standing to assert a constitutional violation de novo. State

v.   A. W., 181 Wn.      App.     400, 409, 326 P. 3d 737 ( 2014). Christopher argues that SHB 1188, which


amended RCW 9A.36. 021, is unconstitutional because it violates the single -subject and subject -


in -title   requirements of article             II,   section   19   of   the Washington State Constitution.'                Because SHB




     Article II,   section   19   of   the Washington State Constitution                  provides    that: "[   n] o bill shall embrace
more     than    one subject,        and that     shall   be    expressed       in the title." Article II, section 19 established
two     specific    requirements: (        1)     the   single -subject rule and (         2) the    subject -in    -title   rule.   State v.
Haviland, 186 Wn.        App. 214, 218, 345 P. 3d 831 ( 2015). A violation of either the single -subject
 or the subject -in -title requirement renders the relevant provisions of the bill unconstitutional. See
 id. at 220.




                                                                           El
No. 45694 -0 -II



1188 amended RCW 9A.36. 021 to add " suffocation" to the definition of second degree assault,2

which Christopher was not convicted for, we hold that Christopher lacks standing to make this

argument .3

          To    prove   standing, Christopher          must show (             1) "`    a personal injury fairly traceable to the

challenged conduct and           likely to    be   redressed     by   the      requested relief"          and ( 2) that his claim falls


within    the   zone of     interests     protected   by   the   statute or constitution provision at                    issue.    State v.


Johnson, 179 Wn.2d 534, 552, 315 P. 3d 1090 ( 2014) (                                  quoting High Tide Seafoods v. State, 106

Wn.2d 695, 702, 725 P. 2d 411 ( 1986)).                If a party lacks standing for a claim, we cannot reach the

merits     of   that   claim.     Johnson,         179 Wn.2d          at    552.         A defendant may not challenge the

constitutionality of a statute unless he or she is harmed by the unconstitutional feature of the

challenged       statute.    State   v.   Jendrey,    46 Wn.       App.           379, 384, 730 P. 2d 1374 ( 1986); State v.


Lundquist, 60 Wn.2d 397, 401, 374 P. 2d 246 ( 1962).


           SHB     1188 amended the definition                   of       second        degree    assault      by    adding "   assault by

suffocation"      in RCW 9A. 36. 021( 1)( g).              LAWS           of   2011,      ch.    166, §   1.     But Christopher was


convicted of assault        by   strangulation under        RCW 9A.36. 021( 1)( g).                   Therefore, the amendment to


SHB 1188 did not affect him and he cannot show harm from the statutory amendments to SHB




2
    The   other amendments made             by   SHB 1188        are not         implicated      by   Christopher'      s case.   LAWS of
2011, ch. 166.


3 The State contends that Christopher may not challenge the constitutionality of SHB 1188 for the
first time on appeal because Christopher failed to assert this argument on appeal. Because we hold
that Christopher lacks standing to make this argument, we do not address the merits of the State' s
argument. See, e. g., State v. Johnson, 179 Wn.2d 534, 555, 315 P. 3d 1090 ( declining to reach the
merits of a     defendant'    s claim when         the defendant lacked standing to                   raise    the   claim),   cert. denied,
135 S. Ct. 139 ( 2014).

                                                                      5
No. 45694 -0 -II



1188.   We hold that Christopher lacks standing to challenge the constitutionality of SHB 1188.

We decline to address further his constitutional challenge to SHB 1188.

B. "      Prior Acts" Statement by Prosecution Witness

         Christopher argues that the prosecutor committed misconduct by eliciting testimony that

Bibens had been previously dispatched to the defendant' s residence for a related offense.

Assuming without deciding that the prosecutor did commit misconduct, we hold that Christopher

fails to show that Bibens' testimony prejudiced him.

         When a defendant objects to alleged prosecutorial misconduct at trial, a defendant must


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


affecting the     jury' s   verdict.      State      v.    Emery,       174 Wn.2d 741,      760, 278 P. 3d 653 ( 2012).


Misconduct is prejudicial if there is a substantial likelihood that it affected the jury verdict. Emery,

174 Wn.2d at 760.


         At trial, the   prosecutor asked          Bibens if he knew " Shawn Christopher.." RP ( Nov. 13, 2013)


at   234. The   officer responded, "          I' ve met [ Christopher] before on some previous calls at that same


location."      RP ( Nov. 13, 2013)           at   234.     Christopher objected, and the trial court sustained his


objection. The trial court also told the jury to disregard the officer' s statement.

         Assuming without deciding that the prosecutor committed misconduct by eliciting this

testimony, Christopher fails             to    show       that   Bibens'     statement had a substantial likelihood of


affecting the    jury   verdict.   See   Emery,       174 Wn.2d         at   760.   Bibens' testimony would not have led

the jury to convict based on alleged propensity evidence because ample evidence established both

the second degree assault and witness tampering charges without relying on Bibens' statement.

For the assault charge, the State produced Gutierrez' s testimony, which was corroborated by her

                                                                    0
No. 45694 -0 -II




statements to Bibens, her 911 call, and the photographs showing thumb print marks on her neck.

For the tampering with a witness charge, the. State produced Gutierrez' s and Hausinger' s

testimony,   as   well   as   the   photographs   of   Hausinger'    s   text   messages   to Gutierrez.   Thus, even


without Bibens' allegedly improper testimony, a reasonable jury had ample evidence to convict

Christopher as charged.


        Moreover, the trial          court   informed the    jury        to disregard Bibens'    statement.        Before


deliberating, the trial court instructed the jury again to disregard any evidence that the court had

either not admitted or had stricken. We presume the jury followed these instructions. See State v.

Swan, 114 Wn.2d 613, 661- 62, 790 P. 2d 610 ( 1990).             Accordingly, we hold that if any misconduct

occurred, Christopher fails to establish that it was so prejudicial that there was a substantial

likelihood it affected the verdict.4

C.      LFOs


        Christopher argues that the trial court. erroneously imposed discretionary LFOs in the

amount of $1, 409.25 without first determining that he had the current or future ability to pay them.

He raises this issue for the time on appeal, as he did not object at sentencing.




4 Christopher argues that the trial court should have granted his motion for a mistrial and post -trial
motion for a new trial because the State violated the motion in limine, which prohibited the State
from introducing ER 404(b) allegations with regard to Christopher. Aside from the assertion that
the trial court should have granted Christopher' s mistrial motion and motion for a new trial,
Christopher cites no legal authority and offers no legal analysis in support of his contention. We
will not consider assignments of error unsupported              by   citation    to authority. RAP 10. 3(   a)(   6), State
v.Bello, 142 Wn. App. 930, 932 n. 3, 176 P. 3d 554 ( 2008). Because Christopher fails to argue this
point, Christopher waived this assignment of error and we do not consider it further.



                                                            7
No. 45694 -0 -II



          When an appellant fails to raise an issue below, this court may refuse to review it. RAP

2. 5( a). 5 A party' s objection or argument preserves an issue only if the party actually raises that

particular issue before the trial court. See Cotton v. Kronenberg, 111 Wn. App. 258, 273, 44 P. 3d

878 ( 2002). In State            v.   Blazina, 182 Wn.2d 827, 832- 33, 344 P. 3d 680 ( 2015), our Supreme Court


reaffirmed that appellate courts in this state may decline to review the imposition of discretionary

LFOs where the defendant failed to object to the imposition of LFOs at sentencing. Blazina, 182

Wn.2d     at    681.        Here, the court sentenced Christopher after our decision in Blazina, wherein we


declined to review the trial court' s imposition of discretionary LFOs because the defendant did not

object at      sentencing.        State y. Blazina, 174 Wn. App. 906, 911, 301 P. 3d 492, remanded by 182

Wn.2d 827 ( 2015).              Because Christopher did not object to the trial court' s imposition of LFOs at


sentencing, we decline Christopher' s invitation to review this issue for the first time on appeal.
D.        SAG Claims


          In his SAG, Christopher claims prosecutorial misconduct ( a) in eliciting four statements

during Bibens' testimony, (b) in eliciting second -strike offense evidence during Bibens' testimony,

    c) in misrepresenting the evidence during closing argument, (d) in filing of amended charges one

month     before trial, ( e) in withholding               a witness    and   withholding   discovery, ( f) in coercing a

witness, (      g) in failing to call an available witness, and ( h) in vouching for a witness' s credibility.




5
     In State    v.    Jones, 182 Wn:2d 1,            6, 338 P. 3d 278 ( 2014), our Supreme Court recognized that
unpreserved sentencing errors " may be raised for the first time upon appeal because sentencing
 can implicate ftuldainental principles of due process if the sentence is based on information that is
 false, lacks     a minimum                  reliability, or is unsupported in the record." ( Citation omitted.)
                                       indicia   of

But in State          v.   Blazina, 182 Wn.2d 827, 832- 33, 344 P. 3d 680 ( 2015), our Supreme Court declined
 to apply this exception in the context of LFOs. We follow our Supreme Court' s lead and decline
 to apply this exception.

                                                                  M.
No. 45694 -0 -II



He also claims that the trial court abused its discretion in admitting evidence of photographs and

evidence of his ethnicity in the 911 call. We disagree.

          1.          Prosecutorial Misconduct Claim


                      a. Bibens' Testimony

          Christopher identifies four statements elicited by the prosecutor in Bibens' testimony that

he    alleges   constitute prosecutorial misconduct and are prejudicial: (                                  1)   that the neighbor' s call



about    Christopher        and   Gutierrez'   s   fight " was    a   911   call   of a —      a disturbance, a neighbor had called


and    basically     said   my    neighbors are      arguing      again,"    SAG        at   1; (   2) that " I start to walk up to the —

the   building,      I had been there two, three times before                     so   I knew       where   it   was,"   SAG   at   1; ( 3) that


he recognized Christopher at the scene and then later in the courtroom, and ( 4) that Bibens used

Christopher' s, Gutierrez' s, and their roommate' s first names. Christopher did not object to any of

these four statements at trial.


          When a defendant fails to object to prosecutorial misconduct at trial, we apply a different,

heightened       standard of review.           Emery,     174 Wn.2d          at   760- 61.          Under this heightened standard of


review, the defendant is deemed to have waived any error unless he establishes that the prosecuting

attorney' s misconduct " was so flagrant and ill intentioned that an instruction could not have cured
the resulting        prejudice."      Emery,        174 Wn.2d          at   760- 61.         This heightened standard of review


requires       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 State v. Thorgerson,

 172 Wn.2d 438, 455, 258 P. 3d 43 ( 2011)).                       We focus " more on whether the resulting prejudice




                                                                       OJ
No. 45694 -0 -II




could   have been       cured,"      rather   than the    flagrant    of   ill intentioned   nature of    the   remark.     Emery,

174 Wn.2d at 762.


             Assuming, without deciding, that the elicitation of this testimony by Bibens was improper,

Christopher fails to          meet   his burden to       show prejudice.        And if Christopher had objected, which


he did not, the court could have instructed the jury to disregard Bibens' testimony, and a limiting

instruction could have cured any prejudice. We assume that juries follow the court' s instructions.

State   v.   Weber, 99 Wn.2d 158, 166, 659 P. 2d 1102 ( 1983).                     This claim fails.


                      b. Second Strike Offense


             Christopher claims that the prosecutor violated the trial court' s ruling precluding Gutierrez

from testifying to the significance of Christopher getting a second strike offense.6
             The trial court stated,


             And here,   as   I   understand   it, the   reference    is that [ Hausinger]    said, "   He' s in trouble.
             He has   a second strike, and       therefore,   he     needs you   to   do things." So, if that' s what
              Gutierrez] testifie[ d] he said, that' s what he said. I' m not going to exclude it. She
             can' t go on to explain what she thought that he meant by that, or what she knew in
             terms of his past record and all that sort of thing, but she can testify as to what he
             said.



RP ( Nov. 12, 2013)           at   56.   The trial court ruled that Gutierrez could testify as to what Hausinger

told her, but that she could not explain the significance of Christopher getting a second strike if

convicted of violating the domestic violence no contact order.

             Christopher points to the following exchange as evidence that the prosecutor violated the

trial court' s ruling.




 6 The charge of second degree assault against Christopher would be a " second strike" offense
under    the    persistent offender        accountability     act,   RCW 9. 94A. 555, . 010, . 030( 32)( b).

                                                                     10
No. 45694 -0 -II




         State]:             What did [ Hausinger] tell you?
         Gutierrez]          That [ Christopher] loves me and wants to be with me.
         State]:             Did.the caller tell you anything else about the Defendant?
         Gutierrez]          That he' s looking at a second strike.
         State] :            What' s — what does that mean?
         Gutierrez]          That —
         State]:             Or, why did the   caller   tell   you   that? Strike that.    Why   did the   caller —what

                             was the significance of that?
         Gutierrez] :        To me, it meant something bad.

RP ( Nov. 12, 2013)     at   159.   Christopher did not object to the prosecutor' s questioning.

        The prosecutor expressly asked Gutierrez about the significance of Christopher getting a

second strike offense. The prosecutor' s question to Gutierrez violated the trial court' s ruling and

was misconduct. However, because Christopher did not object to this testimony at trial, he waived

this issue unless he can establish that the prosecutor' s misconduct was so flagrant and ill

intentioned that it caused an enduring prejudice that could not have been cured with an instruction

to the jury and the misconduct resulted in prejudice that had a substantial likelihood of affecting

the jury' s verdict. Emery, 174 Wn.2d at 761.

        Bibens did not actually explain the significance of Christopher getting a second strike.

There is no evidence that the prosecutor' s questioning was so prejudicial that it could not be cured

by a4imiting instruction, which was not requested. Moreover, in light of the evidence presented,

there is no showing that this misconduct had a substantial likelihood of affecting the jury' s verdict.

Christopher failed to meet his burden. This claim fails.


                    c. Closing Argument

        Christopher claims that the prosecutor misrepresented evidence during closing argument

by telling the jury ( 1) that Christopher had been drinking malt liquor the night of the assault and

 2) that Christopher     and    Gutierrez had been      dating      for five   years.   Christopher must demonstrate



                                                               11
No. 45694 -0 -II



that these statements resulted in prejudice that hada substantial likelihood of affecting the jury' s

verdict. Emery, 174 Wn.2d at 760. He fails to show any prejudice.

         Gutierrez testified that on the night of the incident she and Christopher were drinking "juice

and,   like   and actual alcoholic          beverage[ s],   and   there   was also        Bud Light." RP ( Nov. 12, 2013) at


110.    She    went on       to   explain   that the " juice"     came    in   a   tall   can and was "         like   malt   liquor.". RP


 Nov. 12, 20 13) at 111. During the State' s closing argument, the prosecutor indicated that the case

was " about a Defendant who was intoxicated that night, been drinking beer, some malt liquor."

RP ( Nov. 13, 2013) at 385. The prosecutor presented evidence that Christopher was drinking beer

and another beverage like a malt liquor. The inference that the jury would have taken from these

facts was that Christopher was intoxicated. The jury would have made the same inference had the

prosecutor clarified his statement and stated that the beverage was like a malt liquor. Christopher

fails to demonstrate that the malt liquor statement in closing argument had a substantial likelihood

of affecting the jury' s verdict.

          The prosecutor also indicated in closing argument that Gutierrez had " to overcome the

emotional      ties of   a   five- year relationship that         she   thought      was    love   at   first   sight."       RP ( Nov. 13,


2013)    at   387.   Both Gutierrez and Christopher testified to knowing each other or dating for only

six months before the assault. The prosecutor' s comment about the parties' five-year relationship

would not have negated the other ample evidence produced establishing Christopher' s guilt on the

charges of second degree assault, violation of a domestic violence no contact order, and witness


tampering.       Christopher fails to demonstrate that the reference to the five-year relationship in

closing argtunent had a substantial likelihood of affecting the jury' s verdict. This claim fails.



                                                                   12
No. 45694 -0 -II




                        I Filing Amended Charges

           Christopher       claims   that the State   erred   by    waiting "    until   the last   moment"        to add the


charges of violation of a          domestic    violence order and         tampering   with a witness.         SAG    at   8.   We


disagree.


           The Washington Supreme Court has held that where prosecutorial misconduct results in

prejudice        to the defendant, dismissal is     required pursuant        to CrR 8. 3(    b).    State v. Michielli, 132


Wn.2d 229, 240- 43, 937 P. 2d 587 ( 1997).             In Michielli, the prosecutor inexplicably decided to file

four additional charges five days before trial, thereby forcing the defendant to waive his speedy

trial rights in order to prepare a defense to the new charges. Michielli, 132 Wn.2d at 243- 44. The

State admitted it possessed all the information necessary to file all of the charges when it filed the

initial information, and it did not obtain more discovery or add witnesses for trial. Michielli, 132

Wn.2d       at   244.    The court noted that the only reasonable explanation for the prosecutor' s delay

appeared         to be harassment      of   the defendant    and    the   court   termed the       delay   as "   governmental




mismanagement."              Michielli, 132 Wn.2d      at   243.    Further, the court held that the defendant was


prejudiced when the prosecutor delayed adding four serious charges until just days before trial,

thereby giving the defendant the choice of going to trial unprepared or waiving his right to a speedy

trial and asking for a.continuance. Michielli, 132 Wn.2d at 244.

            Here, unlike in Michielli, the prosecutor did not possess the information to support the

 State' s additional charges at the time it filed the initial information against Christopher. Gutierrez

notified the police that Christopher had contacted her through Hausinger from jail and attempted

to   get   her to   alter   her testimony in late September 2013— at least three weeks. after the State filed


 its initial information          against    Christopher.      Conflicting testimony exists as to whether the


                                                               13
No. 45694 -0 -II




prosecutor actually became aware of the facts underlying the State' s amended information in late

September      or    early to    mid   October.     Christopher' s defense counsel asserted that the prosecutor


learned of these facts on or around September 27, 2013, but did not provide the defense with notice

of   its intent to   amend       the information    until   October 15, 2013.         However, the prosecutor told the


trial court that he did not receive the information supporting the charges of violating a domestic

violence no contact order and               tampering   with a witness Lentil "      towards the       end of   October."    RP


 Nov. 7, 2013)        at   4.   It is Christopher' s burden to show the prosecutor' s misconduct resulted in

prejudice    that had a         substantial   likelihood    of   affecting the   jury' s   verdict.   Emery, 174 Wn.2d at

760. Based on this record, we hold that Christopher fails to show prosecutorial misconduct.


          Moreover, even assuming misconduct, which we do not find, Christopher fails to show

prejudice.     There is no evidence in the record that the prosecutor' s act of filing to amend charges

on October 17, 2013 placed Christopher in the untenable situation of going to trial unprepared or


waiving his speedy trial right and asking for a continuance. See Michielli, 132 Wn.2d at 244. The

State filed its original information on August 26, 2013, charging Christopher with second degree

assault. On October 17, 2013, the State moved to amend the information to add count 2, charging

Christopher      with      a    violation   of   a domestic      violence   protection      order     and   count   3,   charging


Christopher     with       tampering    with a witness.          Christopher   objected.      Christopher' s trial began on


November 12, 2013.                Therefore, Christopher had exactly four weeks from October 15, 2013 to

November 12, 2013 to prepare a defense to the amended charges. The record does not show that

Christopher was prejudiced in preparing a defense.




                                                                   14
No. 45694 -0 -II




                        e. Withholding Exculpatory Evidence

          Christopher claims that the State committed a Brady' violation by withholding exculpatory

evidence by not showing the jury a police car video recording that showed him asking for pictures
of   Gutierrez'     s    injuries,   which would     have impeached Bibens'       and   Gutierrez'   s   testimony.   We


disagree.


          The State has a duty to disclose material evidence favorable to the defendant. See Brady,

373 U.S. at 87. Brady states that the suppression of evidence favorable to an accused violates due

process " where the evidence is material either to guilt or to punishment, irrespective of the good

faith or bad faith" of the State. Brady, 373 U.S. at 87. The State has a duty to learn of any favorable

evidence " known to the others acting on the government' s behalf in the case, including the police."

Kyles v. Whitley, 514 U. S. 419, 437, 115 S. Ct. 1555, 131 L. Ed. 2d 490 ( 1995).

          The evidence that Christopher claims the State withheld from him, however, is not included

or referenced           in the   record on review.    On direct appeal, we do not consider matters outside the


record.     State       v.   McFarland, 127 Wn.2d 322, 338       n. 5,   899 P. 2d 1251 ( 1995). We do not consider


this issue further.


                         f. Withholding a Witness/ Discovery

            Christopher claims the State did not allow his defense counsel to interview Hausinger until

the   day    of   trial.      But there is no evidence in the record that the State prevented Christopher' s

defense     counsel          from   interviewing   Hausinger.   Christopher' s claim relies on evidence outside of




  Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 ( 1963)
                                                                15
No. 45694 -0 -II



the   record.    On direct        appeal, we         do    not consider matters outside         the   record.   McFarland, 127


Wn.2d     at   338   n. 5.   We do not consider this claim further.


          Christopher also claims that the State failed to provide Officer Skeeter' s8 initial report to


his defense counsel for three weeks. The only reference to this report in the record is Christopher' s

counsel' s argument before the trial court that the prosecution had this report as of September 27,

but failed to    provide       it to her     until   October 15.          However, Christopher fails to demonstrate how


the State' s delay in providing Skeeter' s report resulted in prejudice that had a substantial likelihood

of    affecting the     jury' s   verdict.    Emery,        174 Wn.2d         at   760.   He had the opportunity to admit the

report at trial and make any admissible arguments beneficial to his position. Therefore, this claim

fails.


                      g. Coercing Hausinger

          Christopher claims that the State coerced Hausinger into testifying against Christopher by

threatening him with charges for tampering with a witness and gave Hausinger improper
preferential     treatment to        testify    against       him.       But the record contains no evidence to support


Christopher' s claim of coercion or that the State gave Hausinger preferential treatment for

testifying. McFarland, 127 Wn.2d                      at   338   n. 5.   We do not consider this claim further.


                       h. Failure to Call Available Witness


           Christopher claims that the State' s failure to call Skeeter, when she was an available


witness,       was a deliberate ploy to hide exculpatory evidence and constitutes prosecutorial

misconduct. But there is no information in the record that Skeeter was an available witness. Under




 8 Officer Skeeter' s first name is not contained in the record on appeal.

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RAP 10. 3(   a)(   5),   Christopher must cite to the record for every factual statement he presents for

review. Without such citation and evidence in the record supporting Christopher' s contention, we

do not consider this issue further. McFarland, 127 Wn.2d at 338 n. 5.


                     i. Vouching for a Witness' s Credibility

        Christopher claims that the prosecutor impermissibly vouched for Hausinger' s credibility

as a witness       during    closing   argument.        We agree that the prosecutor vouched for Hausinger' s


credibility, but we hold that Christopher waived this claim by failing to show that an admonition

to the jury, which he failed to request, would not have cured the error.

        A prosecutor commits improper vouching by expressing a personal opinion as to a

witness' s   veracity.      Thorgerson, 172 Wn.2d            at   443.      Whether a witness testifies truthfully is an

issue entirely      within   the    province    of    the trier   of   fact.     Thorgerson, 172 Wn.2d              at   443.   But a


prosecutor' s wide latitude to argue inferences from the evidence includes arguing inferences

             witness      credibility. Thorgerson, 172 Wn.2d                   at   448. In   addition,   the "`   failure to object
regarding


to an improper remark* constitutes a waiver of error unless the remark is so flagrant and ill

intentioned that it causes an enduring and resulting prejudice that could not have been neutralized

by   an admonition         to the   jury."'    Thorgerson, 172 Wn.2d at 443 ( quoting State v. Russell, 125

Wn.2d 24, 86, 882 P. 2d 747 ( 1994)).


        Christopher cites to the following section of the prosecutor' s closing argument discussing

Hausinger' s demeanor while testifying:

                     Now, the Defendant got up on the stand today and he denied that he told
        Jacinto Hausinger to do that, but                  you    saw       Mr. Hausinger.        The last thing Mr.
        Hausinger         wanted     to do    today    was stand       up   on   this   stand and   testify. He didn' t
        want to admit that the Defendant told him to contact Ms. Gutierrez. That was like
        pulling teeth out of him, but he did because he was under oath and he was telling

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           the truth. Now he could have also changed his story, he could have denied it....
           But he  finally came clean and said, " Yes."

RP ( Nov. 14, 2013)           at   393- 94 (   emphasis added).       During rebuttal, the prosecutor told the jury,

 Mr. Hausinger, you can make your own decisions on his credibility and what he got up here and

  and said    today." RP ( Nov. 14, 2013) at 418.

           In State   v.   Jackson, 150 Wn.       App.    877, 883- 84, 209 P. 3d 553 ( 2009),    one of the key issues

was whether       to believe the       police officers or a      defense    witness.   During closing arguments, the

prosecutor stated          twice that the      police   testified accurately.   Jackson, 150 Wn.       App.   at   884.   We


held that the prosecutor did not vouch for the officers' credibility because, looking at the argument

in context, the prosecutor reminded -the jury that it was the sole judge of credibility and then

outlined the evidence, which could support the jury' s conclusion that the officers were credible.

Jackson, 150 Wn. App. at 884- 85..

           Here, one of the key trial issues was whether to believe Hausinger'or Christopher regarding

whether Christopher directed Hausinger to call Gutierrez to persuade her to change her story.

During closing argument, the prosecutor expressly told the jury that Hausinger " was under oath

and   he   was   telling   the truth."   RP ( Nov. 14, 2013)       at   393- 94 ( emphasis   added).   In this context, the


prosecutor engaged in impermissible vouching because it directly commented on Hausinger' s

veracity. These statements constitute prosecutorial misconduct.

           But because Christopher did not object to the prosecutor' s statements, he waived any error.

He has not shown that any misconduct was so flagrant and ill intentioned that it " cause[ d] an

enduring and resulting prejudice that could not have been neutralized by an admonition to the

jury."      Thorgerson,        172 Wn.2d         at   443.    Here, an admonition to the jury to disregard the



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No. 45694- 0- I1




prosecutor' s, argument would have likely neutralized any prejudice arising from the prosecutor' s

misconduct. This claim fails.


             2.        Photographic Evidence


             Christopher claims that the trial court' s admission of photos taken by Gutierrez' s roommate

was improper because Gutierrez was not a credible source for the pictures and they could have

been altered. We disagree.


             We review a trial court' s decision to admit or exclude evidence for abuse of discretion.

Diaz    v.   State, 175 Wn.2d 457, 462, 285 P. 3d 873 ( 2012). A trial court abuses its direction when it


is   exercised on untenable grounds or                  for   untenable reasons.          State ex rel. Carroll v. Junker, 79


Wn.2d 12, 26, 482 P. 2d 775 ( 1971).


             The proponent of photographic evidence must authenticate the photographs before the trial

court   may        admit   it. ER 901(    a).   To do    so,    the   proponent must       introduce "` evidence sufficient to


support a         finding that   the   matter   in   question   is   what   its   proponent claims."'   State v. Bradford, 175


Wn.     App.       912, 928, 308 P. 3d 736 ( 2013) ( quoting ER 901(                    a)),   review denied, 179 Wn.2d 1010


 2014).


             At trial, Gutierrez testified that she and Christopher' s roommate, Amos Carpenter, took the.


three photographs of Gutierrez' s neck two to three days after the assault. Gutierrez identified the

three photographs and testified that the photographs were an accurate depiction of what her neck


looked like. Gutierrez' s testimony was sufficient to demonstrate that the photographs were actual

photographs taken of her neck and were properly authenticated as required under ER 901( a).




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           3.          Christopher' s Ethnicity

           Christopher also claims that the State should have edited Gutierrez' s 911 call in which she


identifies him as a Native American, so that the jury was not informed that he was a Native

American.        He claims that segments of the population believe Native Americans become violent


when drinking liquor. But he did not object based on his ethnicity; Christopher objected only to

admitting the 911 call as an excited utterance or a present sense impression under ER 803( a)( 2).

Because Christopher did not object to the testimony that he now complains of on appeal and does

not assert      that the alleged error was a "      manifest error      affecting   a constitutional right,"   we decline


to address this issue further under RAP 2. 5( a).


                                                         CONCLUSION


           We hold that Christopher ( 1) does not have standing to challenge the constitutionality of

SHB 1188 because he was convicted of second degree assault by strangulation, and SHB 1188

addressed       only   second    degree   assault   by   suffocation; (   2) cannot establish a claim of prosecutorial


misconduct or prejudice from any claimed misconduct; and ( 3) waived his challenge to the trial

court' s   imposition      of   LFOs   under   RAP 2. 5(    a).   We reject Christopher' s additional SAG claims.




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No. 45694 -0 -II



        We affirm Christopher' s 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 in accordance with RCW 2. 06. 040,

it is so ordered.



                                                                             M'



                                                      SUTTON, J.
 I concur:




                                                 21
No. 45694 -0 -II




           BJORGEN, J. ( concurring) —   For the reasons set out in my dissent in State v. Lyle, _

P. 3d _,     No. 46101 - 3 - II, 2015 WL 4156773 ( Wash. Ct.      App. July   10, 2015), I would reach


Shawn Christopher' s legal financial obligations' challenge, even though he did not raise it during

sentencing. However, the majority in Lyle, a published decision, reached a contrary conclusion.

Lyle,        P. 3d ,   No. 46101 -3 - II, 2015 WL 4156773 ( Wash. Ct.         App. July   10, 2015). Unless


Lyle is overturned or its bases questioned by subsequent case law, I shall observe its result under

principles of stare decisis. Therefore, I concur in this decision with the reservation here


expressed.




                                                   BJC , GEN, -




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