                                                                          FILED
                                                                       MARCH 10, 2020
                                                                 In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                           )
                                               )         No. 36180-2-III
                     Respondent,               )
                                               )
       v.                                      )
                                               )
CHRISTOPHER P. ROBBINS,                        )         UNPUBLISHED OPINION
                                               )
                     Appellant.                )

       KORSMO, J. — Christopher Robbins appeals from Okanogan County convictions

for unlawful imprisonment and third degree driving while license suspended (DWLS),

arguing that a new trial should have been granted due to the absence of a defense witness

and prosecutorial misconduct. We affirm the convictions and remand to correct the

sentence.

                                          FACTS

       Robbins drove a female acquaintance to a barter fair near Tonasket and they slept

in his car in a camping area at the fair. The victim testified that he touched her breast

without permission; she told him not to touch her. After the two had dozed, he asked her

to share his sleeping bag. When she did not show any inclination to join him, he started

driving the car up a hill away from the people at the fair.
No. 36180-2-III
State v. Robbins


       The victim repeatedly told him she did not want to go and to let her out; he kept

driving. She could not open the car door while the vehicle was moving. She struck him

and eventually stabbed him in the hand with a knife she carried in her bag. The car

stopped and she fell out when the door opened. She then ran to a group of people and

took cover in a nearby car. The incident was reported to fair security and they contacted

the county sheriff’s office.

       Robbins denied touching the victim or asking her to share his sleeping bag. He

did ask her to have a sexual relationship, but she declined. He then looked for

somewhere to let her out of his car. He agreed that she had stabbed his hand and that she

fell out of the car when the door opened. On cross-examination the prosecutor asked

about two statements Robbins allegedly made to the police—that he had met the victim

the day before and that the pair had arrived at the barter fair about 8:00 a.m. on the day of

the incident. He denied making them. The prosecutor also showed Robbins a letter and

asked if he wrote it. He denied doing so. The letter was not admitted into evidence.

       On the morning of the second day of trial, defense counsel advised the court that a

defense witness, Michael Sackman, had not responded to his subpoena and was not

present in court. Sackman was expected to impeach the testimony of the victim by

relating a conversation he had with her after the incident. His location was unknown,

though it was believed he might be at his girlfriend’s residence in Tonasket. The court

authorized a material witness warrant and told the defense that the case would stay on

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State v. Robbins


schedule if Sackman was not present by the time the defense rested. Defense counsel did

not challenge the schedule. The jury then heard testimony from a deputy sheriff and the

victim. The victim was not cross-examined about her alleged conversation with

Sackman. The State then rested its case around 11:00 a.m. Defense counsel presented

the warrant to the court for signature at 11:10 a.m.

       Mr. Robbins testified on direct examination before lunch and was cross-examined

when court resumed at 1:22 p.m. The defense rested at the conclusion of his testimony;

Sackman had not appeared. Defense counsel did not request a continuance of trial and

the parties proceeded with closing argument. The prosecutor argued, without objection,

that Mr. Robbins had told officers that the two had arrived at the barter fair at 8:00 a.m.

and that he had only met the victim the day before.

       Later that day, the jury was unable to reach a verdict on the original charge of

second degree kidnapping, but did convict Mr. Robbins of DWLS and the lesser included

offense of unlawful imprisonment. Around 1:00 a.m. the following morning, the material

witness warrant was served on Sackman and he was booked into the county jail. When

notified, the trial judge directed Sackman’s release because the trial had concluded.

Sackman was then booked into jail on a different matter. Robbins promptly moved for a

new trial due to an irregularity that denied him a fair trial. CrR 7.5(a)(5). After setting

the matter over for briefing, the court denied the motion. In the court’s view, the



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No. 36180-2-III
State v. Robbins


proposed impeachment testimony would not have changed the verdict and Sackman’s

absence from trial was never explained.

       The court imposed a standard range sentence of 55.5 months in prison on the

unlawful imprisonment charge and a term of 12 months of community custody upon

release. The judgment also included a provision that the total sentence could not exceed

the statutory maximum term of 60 months.

       Mr. Robbins timely appealed to this court. A panel considered his appeal without

hearing argument.

                                         ANALYSIS

       Appellant argues that the court erred in not continuing the trial due to Sackman’s

absence and by denying the new trial motion for the same reason. He also contends that

the prosecutor’s closing argument constituted misconduct, that cumulative error requires

a new trial, and that his sentence exceeded the maximum allowed by law. We treat the

two missing witness arguments as one before addressing the misconduct and sentence

issues. In the absence of multiple errors, we do not address the cumulative error claim.

       Missing Witness

       Mr. Robbins argues that the trial court erred in responding to Sackman’s absence.

The trial court did not abuse its discretion.

       A trial court’s continuance ruling is reviewed for abuse of discretion. State v.

Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004). Similarly, a trial judge’s decision

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No. 36180-2-III
State v. Robbins


on a motion for a new trial is reviewed for abuse of discretion. State v. Marks, 71 Wn.2d

295, 302, 427 P.2d 1008 (1967). Discretion is abused 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).

       Mr. Robbins initially argues that the court erred in denying a continuance. The

main problem with this argument is that he never requested a continuance. Counsel

postulated early that more time might be needed to find Sackman, but never requested

that the court recess or continue the trial to allow more time for the missing witness to be

located. A trial judge cannot abuse discretion he was never asked to exercise.

       Even if counsel’s statements could have been interpreted as an unequivocal

request to extend the trial in order to secure the witness’s attendance, the court would not

have abused its discretion by denying the request. In granting a continuance to secure the

attendance of a witness, the trial court may consider the likelihood of locating the

witness, the materiality of the proposed testimony, and the court’s interest in the

maintenance of orderly procedure. Downing, 151 Wn.2d at 273. Here, Robbins did not

demonstrate that Sackman could easily be located and brought in to testify in a

reasonably prompt manner. He also could not show that Sackman’s testimony had any

purpose other than to impeach the victim. However, impeachment testimony is not a

basis for continuing a trial. State v. Harris, 12 Wn. App. 481, 496-497, 530 P.2d 646

(1975). With no reason to know if Sackman could be located in a timely manner and no

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State v. Robbins


substance to his testimony, the trial court could not have erred in denying a continuance.

There was no abuse of discretion.

       Robbins also argues that the trial court should have granted a new trial due to

Sackman’s absence. The trial judge rejected the argument for several reasons, two of

which more than suffice to support the judge’s exercise of discretion. First, the court was

understandably concerned that no reason was ever given for Sackman’s absence. A

voluntary refusal to honor a subpoena would be a very questionable basis for granting a

new trial. On this record, all that the court knew was that Sackman had been subpoenaed

and inexplicably, but apparently voluntarily, failed to appear for trial. Why would the

court believe he would honor a second subpoena and attend a new trial?

       More fundamentally, as the trial court realized when it was considering the

material witness warrant, the proposed testimony was not admissible. In order to

impeach a witness with a prior inconsistent statement, the witness must first be asked

about the (alleged) prior statement. ER 613(b) 1; State v. Mays, 65 Wn.2d 58, 62-63, 395

P.2d 758 (1964). If the witness agrees that the statement was made, there would be no

need for the impeachment witness to testify.




       1
        The rule states in part that testimony about a prior inconsistent statement “is not
admissible unless the witness is afforded an opportunity to explain or deny” the
statement. ER 613(b).

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No. 36180-2-III
State v. Robbins


       Here, the defense failed to ask the victim about the alleged conversation with

Sackman. 2 Without that foundation, as the trial court duly noted, Sackman could not

impeach the victim with the alleged prior statement. Because the foundation was not

provided, Sackman could not have testified even if he had arrived at trial. There certainly

was no basis for granting a new trial due to his failure to appear.

       Either the unexplained absence or the lack of foundation was sufficient to deny the

new trial. The court had tenable reasons for denying the motion. There was no abuse of

discretion.

       Prosecutorial Misconduct

       Mr. Robbins next argues that the prosecutor erred in her closing argument by

referencing evidence not produced at trial. While he correctly identifies the prosecutor’s

mistake, his failure to object to the easily remediable error fails to establish prejudice.

       Well established standards govern review of this issue. The appellant bears the

burden of demonstrating prosecutorial misconduct on appeal and must establish that the

conduct was both improper and prejudicial. State v. Stenson, 132 Wn.2d 668, 718, 940

P.2d 1239 (1997). Prejudice occurs where there is a substantial likelihood that the

misconduct affected the jury’s verdict. Id. at 718-719. The allegedly improper



       2
        Also absent from the record is any affidavit from Sackman detailing what he
would testify about. Whether he would actually testify along the lines of the information
he supplied to defense counsel is unknown.

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No. 36180-2-III
State v. Robbins


statements should be viewed within the context of the prosecutor’s entire argument, the

issues in the case, the evidence discussed in the argument, and the jury instructions. State

v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).

       Reversal is not required where the alleged error could have been obviated by a

curative instruction. State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105 (1995). The

failure to object constitutes a waiver unless the remark was so flagrant and ill-intentioned

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

by an admonition to the jury. Id.; State v. Swan, 114 Wn.2d 613, 665, 790 P.2d 610

(1990); State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).

       Here, the prosecutor erred in attributing the two statements (arrival time and date

he initially met victim) to the defendant. When asked about each statement, he denied

making them. The prosecutor did not recall Deputy Lee to the stand to discuss the two

statements per ER 613(b). Since the deputy did not discuss them in his own testimony, it

was error for the prosecutor to argue the statements in her closing argument. They

simply were not in evidence.

       However, a timely objection would have cured the error. Mr. Robbins had

testified less than an hour earlier and an objection would have allowed the jury to focus

on his actual testimony and/or have permitted the judge to correct the prosecutor’s

misstatement. This was an easy problem to remedy.



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No. 36180-2-III
State v. Robbins


          Nor was the information particularly vital to the case. The critical question for the

jury to determine was the defendant’s intent in driving the car toward the hill. Moreover,

the now challenged argument was supported by the victim’s testimony, leaving the

prosecutor free to argue the conflict between her testimony and the defendant’s. The

prosecutor’s failed attempt to impeach the defendant by self-contradiction during cross-

examination did not preclude her from arguing the disagreement in testimony merely

because she wrongly attributed the evidence to the defendant. Her failure to establish the

latter point was squarely before the jury.

          Mr. Robbins has not established that the prosecutor’s error was so prejudicial that

an objection could not have remedied the problem. He has not established entitlement to

relief.

          Sentence Length

          Mr. Robbins does correctly argue that the combined term of incarceration and

community supervision exceeds the statutory maximum sentence. We remand for the

trial court to correct the term of supervision.

          Unlawful imprisonment is a class C offense carrying a statutory maximum

sentence of five years in prison. RCW 9A.20.020(1)(c); RCW 9A.40.040(2). The

combined term of imprisonment and community custody may not exceed the statutory

maximum sentence. RCW 9.94A.701(9). In the event that the combined sentence would

exceed the statutory maximum term, the trial court is required to reduce the term of

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No. 36180-2-III
State v. Robbins


community custody. Id. Merely noting on the judgment and sentence that the combined

term may not exceed 60 months is insufficient. State v. Boyd, 174 Wn.2d 470, 472, 275

P.3d 321 (2012).

      Accordingly, the trial court must reduce the term of community custody to 4.5

months in order to comply with RCW 9.94A.701(9).

      The convictions are affirmed. The case is remanded for the trial court to correct

the term of community custody.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




                   I   G-


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