                                                                                                     w U T     OF APPEALS
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                                                                                                    S TATE




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                      DIVISION II

STATE OF WASHINGTON,                                                                    No. 43075 -4 -II


                                           Respondent,


           v.




TONYA NADINE QUINATA,                                                             UNPUBLISHED OPINION


                                           Appellant.


           JOHANSON, J. —            Tonya Nadine Quinata appeals her jury trial conviction for first degree

assault.        She   argues   that (   1) the first degree assault statute is unconstitutional because it was

enacted in        violation     of   Wash. Const.          art.   II, §   19; ( 2)   the trial court erred in admitting

 testimonial          hearsay" in violation of her U.S. Const. amends. VI and XIV right to confront

witnesses; (      3) the trial court erred in admitting the same hearsay statement under the medical

treatment and diagnosis exception to the hearsay rule; and ( 4) the State engaged in prosecutorial

misconduct in closing argument. Because the 1997 amendment to the first degree assault statute

cured   any      potential art.    II, §   19 defect, any potential confrontation clause or hearsay error was

not prejudicial, and the prosecutor' s remarks in closing argument either were not improper or

were or could          have been     cured   by   proper   jury   instructions,   we affirm.
No. 43075 -4 -II



                                                   FACTS


                                               I. THE STABBING


          On October 14, 2010, Quinata called 911 and reported that her live -in boyfriend, Samuel

Kama, had      stabbed   himself in   an    attempted   suicide.'   During the call, Quinata told the 911

dispatcher that Kama       was "   trying   to say [ Quinata    was]   the   one   that   did .it."   2 Report of


Proceedings ( RP) at 347.


          When the    paramedics and police arrived,      Quinata   was   waiting for them      outside.   She told


one of the paramedics that Kama had a knife wound, but she then " became distraught and was

unable    to relay any information to the [   ambulance] crew."        lA RP at 64.


          When the police and paramedics entered the home, Kama was on his back in a hallway.

He had blood on his shirt and the paramedics found a stab wound in his chest that was about one -

half to three -quarters    of an   inch    wide.   On the way to the hospital, Kama told one of the

paramedics that he did not stab himself, but according to the paramedic, Kama was unable to

relay   who   did.   Medical personnel then intubated Kama to assist with his breathing, and he was

unable to speak Doetors operated on Kama to repair life threatening injuries.

          Meanwhile, several officers from the Clark County Sheriff's Office arrived at the scene

after   Kama had been transported.          Quinata told Sergeant Bill Roberts that she and Kama had

argued that night and she told Kama that he had to move out. Quinata also told Detective Wayne

Phillips and Deputy Eric Dunham that she and Kama had been arguing and she had asked him to

 leave.    She stated that after she had asked Kama to leave, he walked from the kitchen to the



 1
     At trial, Quinata admitted that Kama had not attempted to stab himself. Instead, she testified
 that she had accidentally " poked" Kama in the chest as he came around a corner and walked into
 her as she was eating her dinner. 3 RP at 489.

                                                         2
No. 43075 -4 -II



carport a few times as she prepared and started to eat her dinner; at some point after he had gone

in and out a few times, she then realized that he had blood or " a liquid" in " his stomach area"

and   Kama then      collapsed        in the   hallway    between the kitchen            and    the   carport.    1A RP at 137.


Quinata also told Detective Phillips that Kama " had mentioned about killing himself previously"

and   that he had    also   told her he     would     tell the   officers   that   she   had    stabbed   him.    1A RP at 138.


In addition, she told Deputy Dunham that after she called 911 and started to apply pressure to the
wound, Kama insisted she remove some of his clothing, hit her several times in the leg, pulled

her hair,    and said, "`   I'   m   going to tell the   cops you      tried to kill     me,'   or something to that effect."

1B RPat217.


                                                         II. PROCEDURE


           The State charged Quinata with attempted second degree murder and first degree assault.

The State' s witnesses testified as described above, and the jury heard the 911 tape.

                                                    A. HEARSAY EVIDENCE


           During   trial, the State      sought    to introduce      some of   Kama'      s                   through physician



assistant" Cassandra Sappington. Sappington first testified -hat Kama was unable to talk from the
                                                            t

time   he   was admitted until after           he   was extubated      following     his surgery.         When he was able to


talk, " psych     services evaluate[       d] him    and [ made]      a written record of what            he   said   to them."   1B


RP    at   306.   When the State asked Sappington what Kama had said, Quinata objected on hearsay




 2 Kama did not appear at trial to testify.

                                                                  3
No. 43075 -4 -II


           3
grounds.         The State argued that these statements were admissible as having been made for

medical diagnosis and treatment. The trial court overruled the objection.


          Sappington then testified that " psychiatry had an opportunity to assess" Kama based on

concerns       about " suicidal        ideations."         1B RP        at   307.    Sappington then read from psychiatric

                                                                               4
services nurse practitioner            Patricia Morgan' s         report:




          In    quotation     marks      it    says, "   Never."         The patient denies having a history of
          depression         ever. "     Never any            pills."        The patient states that this was his
           girlfriend" that stabbed him. The [ registered nurse] also provided information to
          me regarding this and also states that this is the same information that was
          provided      to her.        That the patient did not have a suicide attempt but it was the
          patient' s    significant           other    that     stabbed       him.      The patient has               been   in    a
          marriage... .




                           The patient has been in a marriage but he also has a significant other.
          He has been in this relationship for     one year. The patient does state that he has a

          history    of physical abuse with               the   girlfriend     but he   minimizes       this.    He states that
          his    girlfriend     and     he    were    arguing   day of this stab wound. He came
                                                                   on    the

           around      the   corner ", that' s in quotation marks, and " I was poked" is in quotation

          marks. "      I do [   sic]    not even        know I    was       hurt   until   I   saw   the blood,"       quotation

          marks.       I woke up today and was told you were coming and I wanted to tell my
          story.


 1B RP    at    307 -10.     Sappington, who had no independent knowledge of Kama' s statements, also


testified that the information in quotations in the report were probably direct quotes from the

patient, whereas the rest of the report was likely " just a generalized impression of what [ the

patient was]       saying."      1B RP at 311.




 3 Quinata objected again later because Sappington was not the person to whom Kama had
 spoken. The State argued that Sappington' s testimony was admissible because she was testifying
 about " medical records          made in        the     regular course of          business."        1B RP     at   308.   The trial court
 overruled Quinata' s objection.

 4
     Morgan dictated this        report on       October 16, 2010;             she " authenticated"       it the     next   day.   1B RP at
 313.


                                                                         4
No. 43075 -4 -II


                                                B.    QUINATA' S TESTIMONY


         Quinata     was    the    sole   defense    witness.   She testified that while she was eating her dinner

on the night of the incident, she and Kama had been arguing and she had asked Kama to leave.

She asserted that she had' been eating her sandwich with a sharp knife and fork and she had

accidentally " poked" Kama in the chest as he came around a corner and walked into her. 3 RP at

489.   She did not realize that Kama was injured until he collapsed after walking in and out of the

house.     Quinata stated that she was on the phone with her son when Kama collapsed and she


called 911 after examining Kama and noticing blood on his shirt.

         Quinata explained that she told the 911 dispatcher that Kama had tried to kill himself

because she ( Quinata) panicked when Kama started to scream that she was trying to kill him.

Quinata also admitted that she told the emergency responders that Kama had tried to commit

suicide.      She testified that she told the emergency responders this because Kama was " screaming

that [ she]    was   trying   to kill him,"      and she did not " want to get in trouble" because that was not

what happened. 3 RP at 501 -02.


           Quinata further testified that she did not tell any of the investigating officers that she had

 poked"       Kama    or mention          this in her   written statement   because   she was   scared.   Quinata was


unsure of what she had done with the knife, but she believed that it was either on the kitchen

counter or in the kitchen sink.


           Defense counsel also asked Quinata whether she had " had a long time to think about this

incident." 3 RP        at   509.   She responded that she had and that she realized that she shouldn' t have


lied and that she likely would not be on trial if she had just told the truth.




                                                                 5
No. 43075 -4 -
             II



                                                   C. CLOSING ARGUMENTS


         In closing argument, the prosecutor played the 911 call ( which included Quinata telling

the 911 dispatcher that Kama had stabbed himself) and told the jury that Quinata was now telling

a   very different story.         The prosecutor argued that although Quinata claimed to be telling the

truth   now and      trying     to take " responsibility,"      she was, in fact, just changing her story to fit the

evidence      the   jury   had heard "[      a]fter watching three days of testimony in which every little piece

was picked apart."              3 RP   at   584 ( emphasis   added).   Throughout her argument and the rebuttal,


the prosecutor asserted that Quinata had changed her story in response to the evidence she had

heard during the trial because she realized that the jury would not have believed her original

claim that Kama had stabbed himself. The prosecutor also argued that Quinata' s claim that the


stabbing was an accident was not " reasonable" because it did not make sense based on Quinata' s

and Kama' s relative heights and the nature of Kama' s injuries. 3 RP at 597.

         Defense counsel argued that Kama' s statement to Morgan was not inconsistent with


Quinata' s testimony, that all Kama told Morgan was that he came around a corner and was

    poked,"   that Kama did not realize until later that he was injured, and that this statement did not

establish     that Quinata had              intentionally   stabbed   him   with   intent to kill him.    3 RP at 609.


Defense counsel also argued that the State had not presented any evidence about the amount of

force it would have taken to stab Kama or whether the knife Quinata said she had been using was

capable of inflicting such injury.

          In rebuttal, the prosecutor argued that the jury could rely on common sense when

determining whether Kama' s injuries were consistent with Quinata' s testimony and that the State

was not required           to   present     testimony   about   this issue from     a   doctor.   The prosecutor further


argued,



                                                                 6
No. 43075 -4 -II



            The State does         not --    did   not    bring      in   a --    a person to testify about how much
          force it     would take         for    someone        to accidently [         sic]    stab someone in the chest

            because the State did not know that the Defendant was going to change her story
            until   today,    until you sat       here today.         That       was    the    first time.     So, there was no
            witness    to   come     in   and    talk    about   force.          But,   you    know   what?         There are the

            twelve of you, there' s a jury that gets to use your common sense.

3 RP   at   632 ( emphasis         added).      Quinata did not object to any of the prosecutor' s argument.

            The jury found Quinata not guilty of attempted murder, but found her guilty of first

degree assault. Quinata appeals her conviction.


                                                                ANALYSIS


                                                  I. No ART. II, § 19 VIOLATION


            Quinata        first   contends       that    the     first    degree        assault     statute,       RCW   9A.36. 011,    is


unconstitutional           because it     was enacted      in    violation of       Wash. Const.        art.   II, § 19, which provides


that "[   n] o bill shall embrace more than one subject, and that shall be expressed in the title."

Specifically,        she    argues   that ( 1)    the 1986 legislation enacting former RCW 9A.36. 011 ( 1986),



which altered the mens rea required to commit the crime of first degree assault and added a third

alternative means of committing the offense, violated the single subject rule because RCW

9A.36. 011 was not within the scope of the bill' s title, which addressed only the sentencing of

adult felons; and ( 2) this error was not cured by the 1997 amendment to the 1986 version of the

 statute because that legislation also violated the single subject rule. We disagree.

                                          A. STANDARD           OF   REVIEW        AND   ART. II, §19


            We      review constitutional          issues de         novo.       Bellevue Sch. Dist.           v.   E.S., 171 Wn.2d 695,


 702, 257 P. 3d 570 ( 2011). -`             A statute is presumed constitutional and the parties challenging its

                            must   demonstrate its unconstitutionality beyond                         a reasonable      doubt."     Belas v.
 constitutionality


 Kiga, 135 Wn.2d 913, 920, 959 P. 2d 1037 ( 1998).



                                                                          7
No. 43075 -4 -II



           Article II,       section      19   contains      two     prohibitions: (       1) no bill shall embrace more
           than        one subject ( single subject rule),                and ( 2) that the bill' s title shall express the
           bill'   s    subject ( subject -in       -itle
                                                    t       rule).     Citizens for Responsible Wildlife Mgmt. v.
           State, 149 Wn.2d 622, 632, 71 P. 3d 644 ( 2003) (                              citing State ex rel. Wash. Toll
           Bridge Auth.           v.   Yelle, 32 Wn.2d 13, 23, 200 P. 2d 467 ( 1948)).                          A violation of
           either the single subject or the subject - -itle requirement renders the bill
                                                    in t
           unconstitutional. Patrice v. Murphy, 136 Wn.2d 845, 852, 966 P.2d 1271 ( 1998).

State v. Stannard, 134 Wn. App. 828, 834, 142 P. 3d 641 ( 2006).

               Our Supreme Court has, however,                            stated, "[   T] hat when a statute is challenged on the


basis that its title violates article II, section 19, a later amendment to or reenactment of the statute

supersedes and            therefore `     cure[ s]      any defect' in the         earlier     legislation."   Morin v. Harrell, 161


Wn.2d 226, 231, 164 P. 3d 495 ( 2007) (                        second alteration          in   original) (   quoting Pierce County v.

State, 159 Wn.2d 16, 39 -41, 148 R3d 1002 ( 2006)).                                     Because the legislature amended former


RCW 9A.36. 011 in 1997,                       we   do   not need     to   address      the 1986 legislation.      Thus, Quinata must


show that the 1997 legislation violated the single subject rule; this she fails to do.

                                                   B. NO CONSTITUTIONAL VIOLATION


               Quinata argues that the 1997 legislation did not cure the 1986 defect because the 1997

         titled, " AN ACT
bill was "                                Relating       to crimes,"        and this title was not broad enough to encompass -

the portions of the bill that related to changes to civil detention hearings for human
                                                                                                                                           5
                                        infected people who                            in behaviors dangerous to       public    health.
immunodeficiency                 virus -                                    engage




See LAws           OF    1997,   ch.    196, § 5.       But Quinata fails to recognize that even if we assume the civil

detention portion of the 1997 bill went beyond the bill' s title, the other portions of the bill could

be    severed      from the arguably               objectionable portion of             the    bill.   See State v. Thomas, 103 Wn.




 5
     The   governor vetoed             this   section of    the bill. See LAws OF 1997, ch. 196, § 5.


                                                                             8
No. 43075 -4 -II



       800, 813 - 14, 14 P. 3d 854 ( 2000),                        denied, 143 Wn.2d 1022 ( 2001).     As we stated in
App.                                                  review




Thomas,


          W] here the proposed legislation with a single subject title contains multiple
        subjects, those provisions not encompassed within the title are invalid but the
        remainder is constitutional if: ( 1) the objectionable portions may be severed such


        that a court can presume the enacting body would have enacted the valid portion
        without the          invalid    portion;    and (   2) elimination of the invalid part would not
        render the remainder of the act incapable of accomplishing the legislative
        purpose. [       State   v.   Broadaway,       133 Wn.2d 118, 128, 942 P. 2d 363 ( 1997).]           In

          short, when an act contains provisions not fairly within the single subject of its
        title,  such provisions are void. [ Power, Inc. v. Huntley, 39 Wn.2d 191, 200, 235

          P. 2d 173 ( 1951).] See also Price v. Evergreen Cemetery Co. ofSeattle, 57 Wn.2d
          352, 354, 357 P. 2d 702 ( 1960).


103 Wn.     App.    at   813 - 14 ( footnote        omitted).       Here, even presuming that the civil detention

portions of the legislation went beyond the bill' s title, those portions of the 1997 amendment can

easily be   severed.     Quinata does not argue, nor does it appear, that the remaining portions of the

legislation are not within the bill' s title. Because Quinata does not show that the 1997 legislation

failed to cure any alleged defect in the 1986 legislation, she cannot show that RCW 9A.36.011 is
unconstitutional under art.            II, § 19, and this argument fails.


                                        II_ CONFRONTATION CLAUSE CHALLENGE


          Quinata next argues that the trial court violated her Sixth and Fourteenth Amendment

right to confront witnesses by admitting testimonial hearsay in the form of Sappington' s

testimony about Morgan' s report, which, in turn, contained hearsay about what Kama had said.
 She   argues    that there were "        multiple layers of testimonial hearsay, one produced by Kama, a

 second   by Patty     Morgan         of ` psych services,'         and a third by an unnamed transcriptionist who

 typed up Morgan'        s   dictated    report."    Br.    of   Appellant   at   20. Regardless of whether Quinata has




                                                                    9
No. 43075 -4 -II


                                                         6
properly     preserved        these   arguments,             and assuming but not deciding that Morgan' s report

contained testimonial hearsay, Quinata' s confrontation clause argument fails because the record

establishes that the admission of this testimony was harmless beyond a reasonable doubt.

            C]    onfrontation      clause      violations          are   subject    to    harmless      error   analysis."   State v.


Beadle, 173 Wn.2d 97, 119, 265 P. 3d 863 ( 2011) (                                citing State v. Koslowski, 166 Wn.2d 409,

431, 209 P. 3d 479 ( 2009)).                Although we presume that a constitutional error is prejudicial, a


constitutional error is harmless if we are assured beyond a reasonable doubt that the jury verdict

is   unattributable     to the    error.    State   v.   Watt, 160 Wn.2d 626, 635, 160 P. 3d 640 ( 2007). The State


bears the burden        of   establishing that the           error was         harmless.    Watt, 160 Wn.2d at 635.


          Although       no   other witnesses            testified that Kama              had   stated   that Quinata had "    poked"




him,    one of    the   paramedics         testified that      on   the way to the hospital, Kama stated, "[              H] e did not


stab    himself but he       was unable       to relay       who    did."       1 A RP at 66. Although this statement did not


identify who had " stabbed" Kama, there was no one else in the house and there was no allegation

at   trial that   another person was present when                         Kama    was     injured.   Additionally, in her 911 call

and her statements to Deputy Dunham and Detective Phillips, Quinata herself stated that Kama
was     accusing her         of   having     stabbed         him.     Quinata did not challenge any of this evidence.

Because the jury heard this other evidence and Kama' s statement to Morgan is merely

cumulative, we hold beyond a reasonable doubt that the jury' s verdict was not attributable to




6
     See RAP 2. 5( a).


                                                                          10
No. 43075 -4 -II



Kama'     s statement            to Morgan.       Because the State can establish any potential error was harmless,

Quinata' s confrontation clause argument fails.


                                                        III. HEARSAY CHALLENGE


              Quinata further argues that the trial court erred when it admitted Sappington' s testimony

about Kama' s statements to Morgan as statements for medical diagnosis or treatment under ER

                    8
803(    a)(   4).       Again, we disagree.


              We        review a    trial   court' s   evidentiary   rulings   for   abuse of   discretion.   State v. Ellis, 136


Wn.2d 498, 504, 963 P. 2d 843 ( 1998).                        A court abuses its discretion when its evidentiary ruling

is "'   manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons '

 State    v.    Downing,          151 Wn.2d 265, 272 -73, 87 P. 3d 1169 ( 2004) (                quoting State ex. rel. Carroll

v.   Junker, 79 Wn.2d 12, 26, 482 P. 2d 775 ( 1971)),                          or if "no reasonable person would take the


view adopted              by    the trial   court."    State v. Castellanos, 132 Wn.2d 94, 97, 935 P. 2d 1353 ( 1997)


 citing State            v.   Huelett, 92 Wn. 2d 967, 969, 603 P. 2d 1258 ( 1979)).               Evidentiary error is grounds

for     reversal         only if it   results     in   prejudice.    State v. Neal, 144 Wn.2d 600, 611, 30 P. 3d 1255


    2001). "        An error is prejudicial if, `
                                                within reasonable probabilities had the error not occurred,

the     outcome of            the trial   would   have been materially        affected.'"    Neal, 144 Wn.2d at 611 ( quoting


7 Furthermore, because Quinata admitted that she had been eating her sandwich with a sharp
knife and fork and she had accidentally " poked" Kama in the chest as he came around a corner
and walked into her, 3 RP at 489, who stabbed Kama was not at issue at trial and the medical
records did not address whether the stabbing was intentional or accidental, these records are even
less harmful.

8
     ER 803( a)( 4) establishes the following exception to the hearsay rule:
              Statements for Purposes of Medical Diagnosis                           or   Treatment.   Statements made
              for purposes of medical diagnosis or treatment and describing medical history, or
              past       or    present      symptoms,      pain,    or   sensations,      or the inception or general
               character of the cause or external source thereof insofar as reasonably pertinent to
               diagnosis or treatment.


                                                                         11
No. 43075 -4 -II



State     v.    Smith, 106 Wn.2d 772, 780, 725 P. 2d 951 ( 1986)).                              And a trial court' s erroneous


admission of hearsay statements is harmless when the jury has heard substantially similar

testimony        without objection.          State   v.   Weber, 159 Wn.2d 252, 276, 149 P. 3d 646 ( 2006) ( quoting


Ashley     v.   Hall, 138 Wn.2d 151, 159, 978 P. 2d 1055 ( 1999)), cert. denied, 551 U.S. 1137 ( 2007).


               Hearsay" is a statement " offered in evidence to prove the truth of the matter asserted."

ER 801(        c).   Hearsay evidence is not admissible unless it fits under a recognized exception to the

hearsay        rule,   in   which case we presume            its reliability. 9        State v. Athan, 160 Wn.2d 354, 383, 158

P. 3d 27 ( 2007).            In instances of multiple hearsay, each level of hearsay must be independently

admissible.            ER 805.       Here, Sappington'           s   testimony is double hearsay —Kama' s statements to

Morgan are the first level of hearsay, and Morgan' s report to Sappington is the second level.'°

See ER 801( c).


               One   exception      to the   hearsay      rule   is ER 803( a)( 4). Under this rule, admissible statements


include those " reasonably                   pertinent      to       diagnosis    or    treatment."   ER   803( a)( 4). "   To be


admissible, the declarant' s apparent motive must be consistent with receiving treatment, and the

statements must- be information on which the medical provider- reasonably relies to make a

diagnosis."            State   v.   Fisher, 130 Wn.          App.       1,    14, 108 P. 3d 1262 ( 2005), review denied, 156


Wn.2d 1013 ( 2006). "                The rationale is that we presume a medical patient has a strong motive to




9 " The hearsay prohibition serves to prevent the jury from hearing statements without giving the
opposing party a chance to challenge the declarants' assertions."                                     Brundridge v. Fluor Fed.
Servs., Inc., 164 Wn.2d 432, 451 -52, 191 P. 3d 879 ( 2008).

1°
     On   appeal,       Quinata     argues    that this      hearsay ": Kama to Morgan, Morgan
                                                           evidence was "         triple

to a transcriptionist, and Morgan' s report through Sappington. During the trial, Quinata arguably
objected to two layers of hearsay, but she did not argue that the fact that Morgan' s report was
transcribed was an additional layer of hearsay. Accordingly, we treat this argument as a double

hearsay argument. See RAP 2. 5( a).

                                                                             12
No. 43075 -4 -II



be truthful     and   accurate.     This    provides    a    significant   guarantee   of   trustworthiness."   State v.


Perez, 137 Wn.        App. 97, 106,      151 P. 3d 249 ( 2007).        Kama' s statements to Morgan that he had


not    injured himself       were   clearly for the         purpose   of   diagnosis      and   treatment —Morgan    was


attempting to ensure that Kama was not suicidal. And Kama' s statement to Morgan that Quinata

had stabbed him were relevant to Kama' s treatment and diagnosis because the identity of his

assailant could affect        his treatment.     State v. Williams, 137 Wn. App. 736, 746, 154 P. 3d 322

 2007) ( " In domestic       violence ...     situations, a declarant' s statement disclosing the identity of a

closely -related perpetrator is admissible under ER 803( a)( 4) because part of reasonable treatment

and    therapy is   to   prevent recurrence and         future   injury." ( citing State v. Ackerman, 90 Wn. App.
                                                                                                                    11
477, 482, 953 P. 2d 816 ( 1998); State           v.   Sims, 77 Wn.    App.     236, 239, 890 P. 2d 521 ( 1995))).


          Accordingly, the trial court did not abuse its discretion when it admitted Kama' s

statements as statements for medical diagnosis or treatment under ER 803( a)( 4).

          Furthermore, as we discussed above, the admission of this evidence was harmless,


particularly in light of the other, similar evidence to which Quinata did not object. Accordingly,

this argument also fails.




11
      Another   exception     to the   hearsay   rule   is the business     records exception.       State v. Garrett, 76
Wn.  App. 719, 725 -26, 887 P. 2d 488 ( 1995). A record of an act, condition or event, shall in so
far as relevant, be competent evidence if the custodian or other qualified witness testifies to its
identity and the mode of its preparation, and if it was made in the regular course of business,
method and       time                         justify its admission. RCW 5. 45. 020. At trial,
                          of preparation were such as          to

Quinata asserted a general hearsay objection, and the State relied on the medical treatment
exception as well as         the business     record exception.       Quinata now argues that the State failed to
                         foundation to                 the                 a   business   record.   But Quinata did not
lay    a sufficient                      establish           report was

 object at trial on this ground; accordingly, we do not address this argument. See RAP 2. 5( a).

                                                                 13
No. 43075 -4 -II



                                             IV. PROSECUTORIAL MISCONDUCT


         Quinata next argues that the prosecutor engaged in prosecutorial misconduct in closing

argument.          Specifically, she argues that the prosecutor improperly ( 1) commented on Quinata' s

right   to    be   present     and   to     confront    the   prosecution     witnesses,    and (   2)   argued facts not in


evidence.          Quinata contends that each of these errors was flagrant and ill intentioned, and


because these errors pervaded the State' s entire closing argument, would not have been cured by

any objection. Again, we disagree.

                                                 A. STANDARD OF REVIEW


         To establish prosecutorial misconduct, Quinata has the burden of establishing that the

challenged conduct was               both improper       and prejudicial.      State v. Cheatam, 150 Wn.2d 626, 652,


81 P. 3d 830 ( 2003).          We review the prosecutor' s conduct " by examining that conduct in the full

trial context,       including     the    evidence     presented, `    the context of the total argument, the issues in


the case, the       evidence addressed          in the   argument, and       the instructions   given    to the   jury. "'   State


v.   Monday,        171 Wn.2d 667, 675, 257 P. 3d 551 ( 2011) ( internal quotation marks omitted)


 quoting State                                    52, 134 P. 3d 221 ( 2006)) "
                      v. McKenzie, 157 Wn. 2d 44, -                                              Once [ the] defendant has


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

prejudice on the merits under two different standards of review depending on whether the

defendant       objected at       trial."    State v. Sakellis, 164 Wn. App. 170, 183, 269 P. 3d 1029 ( 2011),

review denied, 176 Wn.2d 1004 ( 2013).


             Because Quinata failed to object to the portions of the prosecutor' s argument that she


now challenges,          she      is deemed to have           waived   any   error "   unless the prosecutor' s misconduct


was so flagrant and ill intentioned that an instruction could not have cured the resulting

prejudice."          State   v.    Emery,     174 Wn.2d 741,            760 -61,   278 P. 3d 653 ( 2012). "         Under this


                                                                   14
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heightened      standard, [      Quinata]     must 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).                                When applying this standard, our focus is

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

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

                                                                B. TAILORING


          Quinata argues that the             prosecutor         improperly          commented on      Quinata'   s art.   I, § 22 right


to   appear     and    defend in       person      and    to    confront       witnesses.      This is essentially         a "   tailoring"

               12
argument.




          Quinata       appears       to   argue   that    under       State    v.   Martin, 171 Wn.2d 521, 252 P. 3d 872


 2011),   prosecutors are never allowed to make a tailoring argument in closing argument because

such arguments violate            Wash. Const.           art.   I, § 22. We disagree.


          Martin addressed a prosecutor' s questioning of a defendant in cross -examination, not, as

is the case here, a prosecutor' s              statement         in closing     argument.       See 171- Wn. 2d     at     533 -34. - The


Martin     court      held that "      our state constitution was not violated when a deputy prosecutor, in

response to testimony [ the defendant] had given on direct examination, asked [ the defendant] if
he had tailored his testimony to                   conform        to   testimony       given   by   other witnesses,"       because the




 12 Quinata appears to argue that the prosecutor' s argument went beyond an assertion that Quinata
 had tailored her testimony to fit the evidence she had heard during the trial because the
 prosecutor suggested that Quinata had " created her whole version of events from the testimony
 she   heard    at   trial."   Br.    of   Appellant      at    31.    We see no distinction between an assertion that a
 defendant has " tailored" some of his or her testimony to fit the evidence presented at trial and an
 assertion that the defendant has invented an entirely new story based on the evidence presented
 at trial. In both instances the defendant has presented the jury with facts based on the previously

 presented evidence. Accordingly, we consider this argument to be a " tailoring" argument.

                                                                        15
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defendant' s testimony included a statement that he based his testimony in part on other evidence

presented at      trial, squarely placing the defendant'                 s   credibility    at    issue.   171 Wn.2d at 537 -38.


But Martin did not address whether a prosecutor may argue tailoring in closing argument and,

apart   from its      pronouncement          that    art.   I, § 22 is more protective than its federal counterpart, is


not particularly informative here.

         Unlike Martin, State               v.   Berube, 171 Wn.         App.    103, 116, 286 P. 3d 402 ( 2012),               review




denied, 178 Wn.2d 1002 ( 2013),                    a case   from Division One        of    this   court,   is   directly   on point.   In


Berube, the court rejected the same argument Quinata now makes. Noting that the Martin court

had expressly declined to                 address " generic      tailoring    arguments,"         the court held that it was not


prosecutorial misconduct for a prosecutor to assert in closing argument that a defendant had

tailored   his   or   her testimony "[           w]hen tailoring is alleged based on the defendant' s testimony on

direct examination, the argument is a logical attack on the defendant' s credibility and does not

burden the       right   to   testify."    Berube, 171 Wn. App. at 116 -17. We agree.

           Here, it was clear that Quinata' s trial testimony was substantially different than the

statements she made at the time of the incident, therewas no evidence that Quinata had claimed

the stabbing was accidental before the trial, and Quinata used the same words to describe the
incident that Kama             used   in describing it to Morgan.               The prosecutor' s tailoring argument was


based on Quinata' s testimony, which was the type of argument that the Berube court approved.

 171 Wn.     App.     at   106 ( " Nor     does a prosecutor commit misconduct by arguing that the defendant

tailored his account of events in response to other witnesses' testimony where the argument is




                                                                    16
No. 43075 -4 -II



based   on    defendant'   s   testimony   on   direct   examination. ").   Quinata fails to establish prosecutorial


misconduct on this ground. 13

                     C. ARGUING FACTS OUTSIDE THE RECORD AND PERSONAL OPINION


          Finally, Quinata argues that the prosecutor' s argument stating that Quinata had changed

her defense theory that same day and that the State was unaware of that change in time to present

a witness to testify about the amount of force necessary to stab a person in the chest was

improper because this           evidence was not         before the   jury. Although these facts were not in the

record,   14 the trial court instructed the jurors that the prosecutor' s argument was not evidence and

that   they   must   disregard any    statement or argument not supported             by   the   record.   We presume


the jury follows the trial court' s instructions. State v. Foster, 135 Wn.2d 441, 472, 957 P. 2d 712

 1998).       Thus, even presuming the prosecutor engaged in misconduct, we hold that Quinata does

not show prejudice under the heightened prejudice standard.


          To the extent Quinata also argues that the prosecutor' s arguments amounted to personal


opinion of Quinata' s guilt when it advised the jury that Quinata had changed her defense that day

andthat the State was unaware of that change in time to obtain a witness who could testify about




13 Because Quinata does not show that the prosecutor engaged in misconduct, we need not
address whether she has shown prejudice. See Sakellis, 164 Wn. App. at 183.
        Furthermore, given that ( 1) the evidence clearly showed that Quinata' s trial defense was
distinctly different from the account she had previously given; ( 2) the jury was well aware that
Quinata was present during the trial and heard all of the evidence; and ( 3) Quinata' s use of some
of the same language from Morgan' s report, the jury could have easily concluded on its own that
 Quinata      was   tailoring her testimony        to fit the trial   evidence.    Thus, the prosecutor' s tailoring
 argument, to the extent it was improper, did not have a substantial likelihood of affecting the
verdict under        the heightened    prejudice standard.          Emery, 174 Wn.2d at 761; see also Sakellis,
 164 Wn. App. at 183.

 14 The State did not present any evidence establishing that it had not had time to seek an expert
 witness.      But the record does reflect that the State had attempted to locate such a witness after
 presenting its rebuttal witness.
                                                               17
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the amount of force the stabbing took, that argument has no merit. Not only could such an error

have easily been cured by an instruction advising the jury to disregard this portion of the

argument, nothing in the prosecutor' s argument suggests that the prosecutor was offering her

personal belief of Quinata' s guilt.


        We affirm.


        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..




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