IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON,                     )
                                             )         No. 75922-1-1
                     Respondent,             )
                                             )         DIVISION ONE
              v.                             )
                                             )         UNPUBLISHED OPINION
 NEHEMIAH DEARIS DUBOSE,                     )
                                             )
                     Appellant.              )         FILED: July 23, 2018
                                             )
      APPELWICK, C.J. — DuBose was convicted of fourth degree assault -
domestic violence, and witness tampering. He argues that the prosecutor made

improper and prejudicial comments during the opening statement. We affirm.

                                     FACTS

      On April 3, 2016, Jasmine Griffin called 911 about an incident with her ex-

boyfriend, Nehemiah DuBose. Griffin reported that DuBose had hit her and was

outside with her car. When police officers arrived at Griffin's apartment she had

visible injuries to her face and neck. She told the police that she had been hit,

slapped, kicked, strangled, and that DuBose had threatened to kill her. The police

searched the area for DuBose. An officer found DuBose in a car with three other

people and subsequently arrested him.

      The State charged DuBose with second degree assault - domestic violence,

first degree robbery, witness tampering, and felony harassment - domestic

violence. The court dismissed the robbery charge during trial. The jury found him
No. 75922-1-1/2


not guilty of second degree assault and harassment, but guilty of fourth degree

assault and witness tampering. DuBose appeals.1

                                   DISCUSSION

       DuBose argues that the prosecutor made improper comments during his

opening statement, that there is a substantial likelihood the prosecutorial

misconduct affected the jury's verdict, and that reversal is required.

       A prosecutor's opening statement should be confined to a brief statement

of the issues of the case, an outline of the anticipated material evidence, and

reasonable inferences to be drawn therefrom. State v. Campbell, 103 Wn.2d 1,

15-16, 691 P.2d 929 (1984). Counsel may anticipate testimony as long as there

is a good faith belief such testimony will be produced at trial. Id. at 16.

       We review allegations of prosecutorial misconduct under an abuse of

discretion standard. State v. lsh, 170 Wn.2d 189, 195, 241 P.3d 389 (2010). To

prevail on a claim of prosecutorial misconduct, the defendant must establish that

the prosecutor's conduct was both improper and prejudicial in the context of the

entire record and the circumstances at trial. State v. Thomerson, 172 Wn.2d 438,

442, 256 P.3d 43 (2011). To establish prejudice the defendant must prove that

there is a substantial likelihood that the instances of misconduct affected the jury's

verdict. Id. at 442-43.

       In beginning his opening statement the prosecutor stated,

      [D.B.] probably doesn't remember what happened on Sunday, April
      3rd, 2016. He probably doesn't remember the sight of his mother's

      1 DuBose withdrew the argument in his brief relative to the felony
harassment.

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No. 75922-1-1/3

      face bruised and beaten, swollen and red. He probably doesn't
      remember the sight of her curly black hair that had been pulled out
      of her scalp. He probably doesn't remember the swollen red marks
      on his mother's neck. [D.B.], hopefully, doesn't remember any of
      these things because he was only seven months old when this
      happened. But if he could remember, if he could come in here and
      testify, he would probably tell you about the sight of seeing his dad
      beat his mother inside his home while they were in that living room.
       A short time later, the prosecutor began talking about Jasmine Griffin,

                Now,there's someone else who you probably or may not hear
      from, and I'm guessing you've all figured out by now, and that is
      [D.B.]'s mom. Her name is Jasmine Griffin. Now, let me tell you a
      little bit about Jasmine Griffin from what little we do know about her.
      She's a single mother of two children from two different fathers.
      She's only 19 years old. One of the children is also Mr. DuBose's
      son. ... .

                Now what you should know is that Mr. DuBose has been really
       critical in the life of these two kids. In fact, Mr. DuBose has basically
       raised the two kids throughout their lives as if they were his own. And
       you're also going to hear, I suspect, that Jasmine has had a turbulent
       -- turbulent life. Not only is she a single mom of these two kids, but
       she's also had run-ins with the law. In fact, earlier this year not too
       long ago she was convicted of theft and she was convicted of robbery
       both occurring on the same day. It's fair to say that Jasmine Griffin
       probably doesn't think much about the police officers or prosecutors
       like me. So I can't tell you -- I can't tell you standing here today
       whether Jasmine Griffin is going to walk through those doors and
       testify. And if she does testify, I can't tell you if she's going to tell the
       truth, or if she's going to try to protect the father of her two kids.
       At this point, DuBose objected, stating, "This is argument. This is not

opening statement." The court overruled the objection. Then, after the prosecutor

described Griffin's 911 call, he stated,

     . And this is a call during which a time she wasn't thinking about what
       calling the police would mean for her life, or her family, or her
       relationship with Mr. DuBose. All she wanted was for the pain to
       stop.
Defense counsel again objected. The court sustained the objection and instructed

the jury to "disregard the last sentence."


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No. 75922-1-1/4


   A. Comments about the Infant Child

       DuBose argues that it was improper for the prosecutor to use the "child's

potential testimony as a tool" because it was evidence that he could not produce.

And, he argues that the prosecutor's comments were improper because they were

designed to appeal to the jurors' emotions. This argument fails because he himself

acknowledges that "there was never a suggestion that [his] infant child would be

able to testify." The use of the infant child's "potential testimony" was, as the State

contends, merely a rhetorical device. It is not analogous to cases where the

prosecutOr discusses testimony that he or she does not later present to the jury.

       While the prosecutor's comments about the effect on the infant child may

have been improper, DuBose did not object to the remarks. Absent an objection

by defense counsel to a prosecutor's remarks, the issue of prosecutorial

misconduct cannot be raised on appeal unless the misconduct is so flagrant and

ill intentioned that no curative instructions could have obviated the prejudice

engendered by the misconduct. State v. Ziegler, 114 Wn.2d 533, 540, 789 P.2d

79(1990). Reading the record as a whole, the prosecutor's remarks were not so

flagrant that curative instructions could not have obviated any prejudice created.

See State v. McKenzie, 157 Wn. 2d 44, 60, 134 P.3d 221 (2006)(prosecutor's

comments about a 12 year old child's lost innocence were improper, but not so

flagrant and ill intentioned that they prejudicial effect could not have been cured by

jury instruction.).




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No. 75922-1-1/5


   B. Comments about Griffin

      DuBose next contends that the prosecutor improperly commented that

Griffin "'wasn't thinking about what calling the police would mean for her life, or

her family, or her relationship with Mr. DuBose. All she wanted was for the pain to

stop.'" And, he argues that the prosecutor improperly remarked that Griffin was

unlikely to testify because she "probably doesn't think much about the police

officers or prosecutors." Defense counsel objected to both of these comments.

      The court overruled the objection to the statement by the prosecutor that he

did not know if Griffin was going to testify and that she "probably doesn't think

much" about police and prosecutors. Citing State v. Monday, 171 Wn.2d 667,669,

257 P.3d 551 (2011), DuBose argues that it is inappropriate for the State to

suggest why a witness would not trust the police or the government when there is

no evidence to support this claim. In Monday, the court held that the prosecutor

committed misconduct by invoking racial bias to discount the credibility of African

American witnesses. 171 Wn.2d at 679-81.

      The holding in Monday does not support DuBose's argument. Here, the

prosecutor did not appeal to any underlying bias. Instead, he told the jury that

Griffin may not testify, and he provided reasons for why she "probably doesn't think

much" about police and the prosecutors—detailing her "run-ins with the law."

These were not improper comments. The trial court did not abuse its discretion in

overruling the objection.

       Finally, the trial court sustained defense counsel's objection to the

prosecutor's comment that Griffin "wasn't thinking about what calling the police


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No. 75922-1-1/6


would mean. ... All she wanted was for the pain to stop.", It instructed the jury to

disregard the last sentence. While this was an improper statement, the court

instructed the jury to disregard it, and juries are presumed to follow the court's

instructions. State v. Ingle, 64 Wn.2d 491, 499, 392 P.2d 442 (1964). DuBose

must show that the prosecutor's misconduct resulted in prejudice that had a

substantial likelihood of affecting the jury's verdict. See State v. Allen, 182 Wn.2d

364, 375, 341 P.3d 268 (2015). In light of DuBose's testimony that he "tried to

push [Griffin] away" and that he bit her, DuBose has not shown a substantial

likelihood that the misconduct affected the guilty verdict on the fourth degree

assault. Further, the challenged comments have nothing to do with DuBose's

witness tampering charge.       Thus, DuBose has failed to establish that the

prosecutor's improper comments prejudiced him as to the charges of which he was

convicted, fourth degree assault and witness tampering.

       We affirm.




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