State Of Washington, Respondent V. Tonya Quinata, Appellant (Majority)

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w U T OF APPEALS OtVdS'' Jis 11 2Gr [i APR 29 AM 8: t,1 S TATE IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II No. 43075 -4 -II STATE OF WASHINGTON, Respondent, v. UNPUBLISHED OPINION TONYA NADINE QUINATA, Appellant. Tonya Nadine Quinata appeals her jury trial conviction for first degree JOHANSON, J. assault. She enacted in argues violation testimonial witnesses; ( that ( of 1) the first degree assault statute is unconstitutional because it was Wash. Const. art. II, § 19; ( 2) the trial court erred in admitting hearsay" in violation of her U.S. Const. amends. VI and XIV right to confront 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 dispatcher that Kama was " attempted an trying suicide.' to say [ Quinata During the call, Quinata told the 911 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 quarters half to three - 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. 1 She stated that after she had asked Kama to leave, he walked from the kitchen to the 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 tried to kill cops you 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' through physician s assistant" Cassandra Sappington. Sappington first testified -hat Kama was unable to talk from the t time he talk, " psych RP at he was extubated d] him and [ made] was admitted until after 306. services evaluate[ following his surgery. a written record of what When he was able to he said to them." 1B 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 The State argued that these statements were admissible as having been made for grounds. medical diagnosis and treatment. The trial court overruled the objection. Sappington then testified that " psychiatry had an opportunity to assess" Kama based on services nurse practitioner In quotation depression 1B RP ideations." about " suicidal concerns Patricia Morgan' s it marks Sappington then read from psychiatric 307. 4 report: Never." says, " Never any ever. " at The patient denies having a history of The patient states that this was his pills." 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 patient' s That the patient did not have a suicide attempt but it was the to her. significant that other him. stabbed The patient has been in a marriage... . The patient has been in a marriage but he also has a significant other. one year. The patient does state that he has a He has been in this relationship for history his of physical abuse with around marks. the girlfriend but he minimizes this. He states that day of this stab wound. He came corner ", that' s in quotation marks, and " I was poked" is in quotation girlfriend marks. " the and I do [ sic] he were arguing not even know I on the was hurt until I saw the blood," quotation 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; 313. 4 she " authenticated" it the next day. 1B RP at No. 43075 -4 -II B. Quinata was the sole defense QUINATA' S TESTIMONY 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 Quinata stated that she was on the phone with her son when Kama collapsed and she house. 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 She testified that she told the emergency responders this because Kama was " screaming suicide. 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. truth now and evidence the trying jury The prosecutor argued that although Quinata claimed to be telling the to take " responsibility," had heard "[ was picked apart." 3 RP at she was, in fact, just changing her story to fit the a]fter watching three days of testimony in which every little piece 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," establish that Kama did not realize until later that he was injured, and that this statement did not 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 argued, 6 a doctor. The prosecutor further No. 43075 -4 -II The State does force it did not -- would take for not bring someone in a -- a person to testify about how much to accidently [ sic] stab someone in the chest because the State did not know that the Defendant was going to change her story today, until witness to until you sat come in here today. talk and That force. about was But, the you first time. know So, there was no 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 unconstitutional that "[ first contends because it that first the was enacted in degree violation of assault statute, Wash. Const. art. RCW 9A.36. 011, is II, § 19, which provides 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 We review constitutional 702, 257 P. 3d 570 ( 2011). -` constitutionality must OF issues de REVIEW novo. AND ART. II, §19 Bellevue Sch. Dist. v. E.S., 171 Wn.2d 695, A statute is presumed constitutional and the parties challenging its demonstrate its unconstitutionality beyond Kiga, 135 Wn.2d 913, 920, 959 P. 2d 1037 ( 1998). 7 a reasonable doubt." Belas v. No. 43075 -4 -II Article II, than bill' section 19 contains two prohibitions: ( s subject ( subject in -itle t Citizens for Responsible Wildlife Mgmt. v. rule). State, 149 Wn.2d 622, 632, 71 P. 3d 644 ( 2003) ( Bridge Auth. 1) no bill shall embrace more and ( 2) that the bill' s title shall express the one subject ( single subject rule), citing State ex rel. Wash. Toll Yelle, 32 Wn.2d 13, 23, 200 P. 2d 467 ( 1948)). v. 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 Wn.2d 226, 231, 164 P. 3d 495 ( 2007) ( earlier second alteration we do not need to address original) ( Morin v. Harrell, 161 quoting Pierce County v. Because the legislature amended former State, 159 Wn.2d 16, 39 -41, 148 R3d 1002 ( 2006)). RCW 9A.36. 011 in 1997, in legislation." 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 immunodeficiency See LAws OF 1997, infected people who virus - ch. 196, § 5. engage in behaviors dangerous to public health. 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 5 severed The from the arguably governor vetoed this objectionable portion of section of the bill. See State v. Thomas, 103 Wn. the bill. See LAws OF 1997, ch. 196, § 5. 8 No. 43075 -4 -II App. 800, 813 - 14, 14 P. 3d 854 ( 2000), review denied, 143 Wn.2d 1022 ( 2001). As we stated in 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 invalid without the portion; and ( 2) elimination of the invalid part would not render the remainder of the act incapable of accomplishing the legislative State purpose. [ 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 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 title, 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 Quinata does not argue, nor does it appear, that the remaining portions of the severed. 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 second that there were " by Patty Morgan typed up Morgan' s multiple layers of testimonial hearsay, one produced by Kama, a of ` psych services,' dictated report." Br. of and a third by an unnamed transcriptionist who Appellant 9 at 20. Regardless of whether Quinata has No. 43075 -4 -II properly these preserved 6 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 Beadle, 173 Wn.2d 97, 119, 265 P. 3d 863 ( 2011) ( harmless to error analysis." State v. citing State v. Koslowski, 166 Wn.2d 409, Although we presume that a constitutional error is prejudicial, a 431, 209 P. 3d 479 ( 2009)). constitutional error is harmless if we are assured beyond a reasonable doubt that the jury verdict is unattributable to the bears the burden of Although him, stab one of the v. Watt, 160 Wn.2d 626, 635, 160 P. 3d 640 ( 2007). The State establishing that the no other witnesses paramedics himself but he State error. error was testified that Kama testified that was unable harmless. to relay on who Watt, 160 Wn.2d at 635. had stated that Quinata had " the way to the hospital, Kama stated, "[ did." poked" H] e did not 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 803( a)( 4). 8 We Again, we disagree. review a trial court' s evidentiary Wn.2d 498, 504, 963 P. 2d 843 ( 1998). is "' v. Downing, view adopted citing State reversal 2001). " the abuse of discretion. State v. Ellis, 136 A court abuses its discretion when its evidentiary ruling 151 Wn.2d 265, 272 -73, 87 P. 3d 1169 ( 2004) ( Junker, 79 Wn.2d 12, 26, 482 P. 2d 775 ( 1971)), for for manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons ' State v. rulings by v. the trial court." or if " no reasonable person would take the State v. Castellanos, 132 Wn.2d 94, 97, 935 P. 2d 1353 ( 1997) Huelett, 92 Wn. 2d 967, 969, 603 P. 2d 1258 ( 1979)). only if it results in quoting State ex. rel. Carroll prejudice. Evidentiary error is grounds State v. Neal, 144 Wn.2d 600, 611, 30 P. 3d 1255 An error is prejudicial if, ` within reasonable probabilities had the error not occurred, 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 Smith, 106 Wn.2d 772, 780, 725 P. 2d 951 ( 1986)). v. And a trial court' s erroneous admission of hearsay statements is harmless when the jury has heard substantially similar testimony Ashley v. State without objection. Weber, 159 Wn.2d 252, 276, 149 P. 3d 646 ( 2006) ( quoting 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 rule, Hearsay evidence is not admissible unless it fits under a recognized exception to the in P. 3d 27 ( 2007). admissible. which case we presume its reliability. 9 State v. Athan, 160 Wn.2d 354, 383, 158 In instances of multiple hearsay, each level of hearsay must be independently 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 to the exception include those " reasonably hearsay rule to pertinent is ER 803( a)( 4). Under this rule, admissible statements 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. Wn.2d 1013 ( 2006). " App. 1, 14, 108 P. 3d 1262 ( 2005), review denied, 156 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." Servs., Inc., 164 Wn.2d 432, 451 -52, 191 P. 3d 879 ( 2008). 1° Brundridge v. Fluor Fed. hearsay ": Kama to Morgan, Morgan 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). On appeal, Quinata argues that this evidence was " 12 triple No. 43075 -4 -II be truthful and Perez, 137 Wn. accurate. App. 97, 106, injured himself not This were significant a provides 151 P. 3d 249 ( 2007). clearly for the purpose guarantee of trustworthiness." State v. Kama' s statements to Morgan that he had of diagnosis and Morgan treatment 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 2007) ( " In domestic his treatment. violence ... State v. Williams, 137 Wn. App. 736, 746, 154 P. 3d 322 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 future prevent recurrence and 477, 482, 953 P. 2d 816 ( 1998); State v. injury." ( citing State v. Ackerman, 90 Wn. App. Sims, 77 Wn. App. 236, 239, 890 P. 2d 521 ( 1995))). 11 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 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 Wn. identity and the mode of its preparation, and if it was made in the regular course of business, justify its admission. RCW 5. 45. 020. At trial, Quinata asserted a general hearsay objection, and the State relied on the medical treatment method and time of preparation were such as exception as well as lay a sufficient the business foundation to to record exception. establish the Quinata now argues that the State failed to report was a business record. But Quinata did not 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 Specifically, she argues that the prosecutor improperly ( 1) commented on Quinata' s argument. right to be and present to confront the witnesses, prosecution and ( 2) argued facts not in Quinata contends that each of these errors was flagrant and ill intentioned, and evidence. 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 evidence trial context, including the case, the evidence addressed Monday, State v. Cheatam, 150 Wn.2d 626, 652, We review the prosecutor' s conduct " by examining that conduct in the full 81 P. 3d 830 ( 2003). v. and prejudicial. the presented, ` in the the context of the total argument, the issues in argument, and the instructions given to the jury. "' State 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, 14 760 -61, 278 P. 3d 653 ( 2012). " Under this No. 43075 -4 -II heightened any standard, [ prejudicial substantial Quinata] on effect likelihood of the that ( 1) ` must show jury' 2) the misconduct resulted in prejudice that ` had a and ( affecting the no curative instruction would have obviated jury verdict. ' Emery, 174 Wn.2d at 761 ( quoting State v. When applying this standard, our focus is Thorgerson, 172 Wn.2d 438, 455, 258 P. 3d 43 ( 2011). 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 to appear defend in and improperly prosecutor person to and confront commented on witnesses. Quinata' s art. This is essentially I, § 22 right a " tailoring" 12 argument. Quinata 2011), appears to argue that under State v. Martin, 171 Wn.2d 521, 252 P. 3d 872 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 Martin court held that " statement in closing argument. See 171- Wn. 2d at 533 -34. - The 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 No. 43075 -4 -II 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. denied, 178 Wn.2d 1002 ( 2013), a case App. 103, 116, 286 P. 3d 402 ( 2012), from Division One of this court, is directly review 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 record, that evidence was not before the jury. Although these facts were not in the 14 the trial court instructed the jurors that the prosecutor' s argument was not evidence and 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 Thus, even presuming the prosecutor engaged in misconduct, we hold that Quinata does 1998). 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 No. 43075 -4 -II 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.. 18

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