IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

en 

### STATE OFWASHINGTON, ~ Respondent,

v. KAREN R. MORGAN, Appellant. 

## No. 71109-1-1 ^ 5J fv> -H$/' 

# DIVISION ONE ^ gg UNPUBLISHEDOPINION^ §S

FILED: March 2, 2015 Appelwick, J. — Morgan appeals her conviction for third degree criminal mistreatment resulting from hercare of an elderly patientat an adultfamilyhome. Morgan 

### argues thatthe prosecutorimproperlyappealed tothe passions ofthejuryand prejudiced 

### the outcome, entitling her to a new trial. Herstatementof additional grounds lacks merit.
We affirm. FACTS 

### In 2009, Hannah Sinnett, an elderly woman with multiple significant health issues,


### was a resident ofSeattle Heights Elder Care Home. Seattle Heights was an adultfamily home licensed to and operated by Regina Daniels. Sinnett's attorney-in-fact and brotherin-law, Sam Robison, moved Sinnett into the home in 2006. 

### Karen Morgan served as the nurse delegator for Seattle Heights. A nurse 

### delegator in an adultfamily home is charged with examining the residents at least every 

### 90 days and, when appropriate, training and delegating specific nursing care tasks to 

### qualified and trained nursing assistants. WAC 246-840-930. Morgan became Sinnett's

nurse delegator in 2006. 

### On September 10, 2009, Morgan examined Sinnett. Morgan noted that Sinnett did not have any wounds at thattime but was at risk for skin breakdown.No. 71109-1-1/2 

### Morgan saw Sinnett again on December22, 2009. She observed that Sinnetthad developed several serious pressure ulcers. Pressure ulcers result from continuous pressure on the skin, such as when a patient is bedbound. The constantpressure causes the skin to break down and potentially become infected. An infected pressure ulcer can be fatal. 

### Morgan called Robison and informed himthat Sinnett had very serious sores. She told Robison that Sinnett could go to the hospital or, if Robison wanted, Morgan could treat Sinnett at Seattle Heights. Morgan did not say that the wounds were open or infected orthatSinnettwas at risk fordeath. Robison opted to have Sinnettstay at Seattle Heights. 

### The next day, registered nurse Courtney Tarr was caring for another resident at 

### SeattleHeights when she noticed a badodor. She asked the caregiver about the smell and was directed to Sinnett's room. Tarr observed two pressure ulcers on Sinnett's left 

### hip and sitbone. Tarrdescribed the ulcers as "[djeep tissue injury, black, deadtissue, lots ofyellowish drainage, horrible odor." She also noted that the wounds were not properly dressed. 

### Tarr called Daniels and asked why Sinnett was not in the hospital. Daniels said that she would come to Seattle Heights butdid not arrive before Tarrleft. Laterthat day, 

### Morgan called Tarr and told her thatSinnett's plan oftreatmentwasantibiotics and bed rest. Tarr responded that she would call 911 unless Sinnett was taken to the hospital. Morgan agreed to take Sinnett.No. 71109-1-1/3

Four days later, on December 27, Sinnettwas admitted to the emergency room at Swedish Hospital. Morgan did not accompany Sinnett to the hospital. The ambulance
crew reported that Sinnett's chiefcomplaintwas "[ajltered mental status." 

### Dr. Benjamin Seo treated Sinnett inthe emergency room. He noted that Sinnett had several large chronic ulcers withsigns of infection. The largerwounds were covered in a layer ofdead tissue. Sinnettwas also showing signs ofsepsis. Dr. Seo provided her "heavy duty" intravenous antibiotics and admitted herto the hospital. 

### On January 7, 2010, Sinnett was transferred to a nursing home. She died five days later. 

### On December 21, 2011, the State charged Morgan with second degree criminal mistreatment in violation of RCW 9A.42.030. Under the statute, a person is guilty of 

### criminal mistreatment in the second degree if he or she is employed to provide a 

### dependent person the basic necessities oflife andrecklessly (a) creates animminentand substantial risk of death or great bodily harm, or (b) causes substantial bodily harm by withholding any of the basic necessities oflife. RCW 9A.42.030(1). 

### Morgan pleaded notguilty. Her trial began on August 15, 2013. Her defense theorywas that she came into a situationwhere the riskofdeath or greatbodilyharm had already been created and that it would not have affected Sinnett's overall health if she had been hospitalized when Morgan first noticed her ulcers. Inclosing argument, the prosecutor said, 

### The defendantmayargue to you in closing, "Well, Hannah was dying 

### anyway. The defendant really didn't create a risk, because it was already too late."No. 71109-1-1/4 

### Ladies and gentlemen, Hannah, we know, got better when she went into the hospital, not for a long time, but for a couple of weeks she was better. Herappetite improved, her mental state improved, and her lab tests 

### showed improvement. That in itself is evidence that she wasn't dying on the 22nd, when [Morgan] took control ofher care. Yes, Hannah probably didn't have long to live anyway, but at that stage ofher lifeevery day mattered, and how dare [Morgan] implythat this person's lifedidn't matter and that she was dying. Morgan objected that this was "improper argument," and the trial court sustained. When Morgan moved to strike or instruct the jury to disregard the comment, the court responded, "I'll sustain your objection." Thejury found Morgan guilty of the lesser included crime of third degree criminal mistreatment. She was sentenced to four months of electronic home detention. She appeals. DISCUSSION I. Prosecutorial Misconduct Morgan argues that the prosecutor improperly appealed to thejury's passion and prejudice by saying, "[H]owdare [Morgan] imply that this person's life didn't matter and that shewas dying." The State maintains thatthe commentdid not constitute misconduct, because itwas merely an expression of indignation warranted by the facts ofthe case. But, the trial court sustained Morgan's objection that the prosecutor's argument was improper. The State does not cross-appeal to challenge that ruling. The ruling is the law ofthe case. See Virgil v. Spokane Countv. 42 Wn. App. 796, 799, 714 P.2d 692 (1986) (holding that an unchallenged ruling becomes the law ofthe case). However, an appellant bears the burden of showing that a prosecutor's improper comment was prejudicial. State v. Emery. 174 Wn.2d 741, 760, 278 P.3d 653 (2012).No. 71109-1-1/5 

### Here, Morgan maintains that she was prejudiced by the trial court's refusal to strike the comment or instruct thejury to disregard it. 

### Morgan first asserts that this refusal provided undue legitimacy to the State's improper argument. When the trial court overrules an objection to a prosecutor's improper comment, that ruling lends an aura of legitimacy to the comment. State v. Davenport. 100 Wn.2d 757, 764, 675 P.2d 1213 (1984). Buthere, thetrialcourtsustained Morgan's objection. This signaled to the jury that the prosecutor's statement was improper and the court did not endorse the statement. Morgan further argues that, by leaving the statement in the record, the court created a serious risk that the comment would influence thejury's verdict. Upon review ofthe evidence and the context ofthe prosecutor's comment inthe full trial, we disagree. Thejury convicted Morgan ofthe lesser included crime ofcriminal mistreatment in the third degree. This required the State to show that Morgan (1) assumed responsibility

or was employed to provide Sinnett the basic necessities of life and, (2) with criminal negligence, created an imminent and substantial risk of or caused substantial bodily harm to Sinnett by withholding any ofthe basic necessities. RCW 9A.42.035(1). As to the first element, Robison testified that Morgan advised him that she could treat Sinnett. He said that Morgan gave him confidence she could take care of itand he trusted her because she was a nurse who knew Sinnett. This showed that Morgan assumed responsibility to provide Sinnettthe basic necessities of life. As to the second element, the State argued that Morgan caused Sinnett to suffer, her condition to worsen, and her risk of dying to increase by not taking herto the hospital 

### for five days. There was considerable evidence to support this assertion. MultipleNo. 71109-1-1/6


### medical professionals testified that Morgan's in-home treatmentplanwas inadequate and Sinnett's condition required hospitalization. When Sinnettarrived at the hospital, shewas malnourished, dehydrated, and showing signs of infection. Her condition had become so
severe that itwas appropriate not to pursue aggressive treatment ofherwounds, such as surgery. LauraVadman, a wound specialistwho treated Sinnettat Swedish, testified that, ifSinnett had been brought to the hospital on the 22nd, she would have had a higher chance of surviving treatment. Dr. Laura Mosqueda, a specialist in family and geriatric medicine, testified that hospitalizing Sinnett sooner would have given her "more of a chance to recover" and Sinnett "would have suffered a lot less." The State also elicited testimony from multiple doctors that Sinnett's death was not inevitable. For example, Dr. Mosqueda testified that Sinnett's condition improved after being admitted to the hospital and that Sinnett showed an interest in food, suggesting that she was not in the active dying phase ofher life. Dr. Mosqueda further stated that she believed that Sinnett "was severely neglected, and it led to her death." Inthe face ofthis strong evidence, Morgan has not established a substantial likelihood that the prosecutor's comment affected the jury's verdict. This conclusion is further supported by the comment's context. The timing of a prosecutor's remark is relevant to its prejudicial value, as statements at the end of argument are more likelyto cause prejudice. State v. Lindsay. 180 Wn.2d 423, 443, 326 P.3d 125 (2014). Here, the prosecutor's commentwas a brief, isolated statement inthe 

### middle of her closing argument. And, directly before and after the comment, the prosecutor referred to the facts in evidence.No. 71109-1-1/7 

### Morgan has not demonstrated that she was prejudiced bythe trialcourt's refusal to strike or instruct on the prosecutor's isolated comment. We deny her requestfor a new
trial. II. Statement ofAdditional Grounds 

### Morgan raises twoissues in her statementof additional grounds. First,she argues that the trial court erred in excluding Daniels's testimony. But, the court did not prevent Daniels from testifying. Morgan did not call her as a witness. 

### Morgan further argues that shewas not read herMiranda1 rights. As support, she cites toonlythe testimony of DetectiveMichael Gordon, who investigated Sinnett's death. But, Detective Gordon did not testify about Morgan's arrest. Nor is there relevant evidence elsewhere in the record. We cannot review Morgan's challenge. See RAP 

### 10.10(c) (an appellate court will not consider an argument made in a statement of additional groundsfor review ifit does notinform the court of the nature and occurrence 

### of the alleged errors); State v. Alvarado, 164Wn.2d 556, 559, 192P.3d 345 (2008). If there are material facts that were notpresented and heard, Morgan's recourse is tobring
a properly supported personal restraintpetition. See RAP 16.4.
We affirm.

WE CONCUR: 

# d~Ssf ^Tr\oK^i t Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).