IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON STATE OFWASHINGTON, Respondent,

v. DAWN MARIE SULLIVAN, Appellant. No. 73217-0-1 c=> _-< cz S3 p"; (Consolidated with No. 73216-1-1) c C~'
PUBLISHED OPINION 5?
FILED: October 10, 2016 Leach, J. — Dawn Sullivan appeals her conviction for second degree 

### assault. She challenges the trialcourt's refusal to excuse a juror who may have known the complaining witness and its decisions to give a first aggressorjury 

### instruction and not to give a multiple assailants instruction. And she claims 

### prosecutorial misconductin closing argument to which she did notobject. We reject each ofthese arguments. The record shows that the juror's possible acquaintance with a witness did not affect the juror's ability to be fair and impartial. The evidence at trial justified a first aggressor instruction. The trial court's self-defense instructions allowed Sullivan to argue her defense theory, 

### and her multiple assailant instruction would have been cumulative. Finally, the 

### prosecutor's remark in closing reflected a reasonable inference from Sullivan's testimony. Accordingly, we affirm Sullivan's conviction.NO. 73217-0-1/2 (consol. with No. 73216-1-l)/2


### The Stateappeals Sullivan'ssentence. Itclaims that the trial court had no authority to sentence her to a community program instead of confinement or to award credit for participation in that program toward her sentence. Because the 

### Sentencing Reform Act of 19811 and the Supreme Court's decision in State v. Medina2 prohibit the sentence the trial court imposed, we remand for resentencing. FACTS 

### Dawn Sullivan cut Christopher Bohannon on the arm with a kitchen knife 

### during a quarrel in Bohannon'sapartment. She had been staying there, offand on, forabout a month while she looked for a new place to live. The night of the assault, Sullivan and Bohannon drank together at the apartment. Aftermidnight, Sullivan left and walked to a nearby area ofbars in downtown Seattle. She met 

### Robert Cessill, a stranger, who was in town during a long layover and waiting at 

### a bus stop. She invited Cessill back to Bohannon's apartment. The threetalked, and Cessill and Bohannon drank, until Cessill fell asleep on the couch. Sullivan asked to smoke some ofBohannon's medical marijuana. After he 

### refused, the two began to argue. Sullivan, Bohannon, and Cessill later gave different accounts ofwhatfollowed.

1 Ch. 9.94A RCW. 2 180Wn.2d 282, 324 P.3d 682 (2014).NO. 73217-0-1/3 (consol. with No. 73216-1-l)/3 

### According to Sullivan, Bohannon became furious and told her to leave. She tried to rouse Cessill because "itwould be rude" to bring over a guest and then leave him there. Bohannon told her to let Cessill sleep. As she was 

### shaking Cessill's foot, Bohannon "pounced" on her, and the two rolled on the floor. She did not see Cessill get offthe couch, but she suddenly felt both men 

### on top of her on the floor. She was afraid because "people were putting their hands on [her] body and holding [her] against [her] will for no reason." She 

### "wiggled out, jumped over the couch," ran to the kitchen, and grabbed a knife from a magnetic strip. She feltshe needed to defend herself, and the knife was closer than the door. Bohannon grabbed her, and he and Cessill took the knife from her within seconds. Bohannon then threw her out of the apartment. She did not know she had cut him during the scuffle. 

### According to Bohannon, Sullivan was angry and announced she was 

### leaving. She pulled Cessill off the couch and toldhim, "[Y]ou're coming with me or I'm going to punch you inthe face." Bohannon intervened, telling her not to 

### punch anyone and that he wanted her to leave. As he led her toward the door, Sullivan "ran across [him] the wrong way intothe kitchen area." Hefollowed her, and she punched him in the nose multiple times. To this point, he had not 

### touched Sullivan except on the arms. He grabbed her wrists and pulled her toNO. 73217-0-1/4 (consol. with No. 73216-1-l)/4


### her hands andknees, then puthis hand on herback, trying tocalm herdown. 

## She stayed onthefloorfor 30 secondsto 2minutes. Then she "twirled around and got up and grabbed [Bohannon's] kitchen knife, [his] big one." Bohannon 

## grabbed atit, cutting his hand. Then Sullivan swung itdown, cutting his wrist. Bohannon again grabbed herwrists and pulled herdown to all fours. Shewas 

## still holding the knife. Atthatpoint, Cessill gotoffthe couch, grabbed Sullivan, 

## and pulled her backward onto the couch. Bohannon tookthe knife away. He wentto the kitchen, gathered up the other knives from the magnetic strip, took them tohis bedroom, andthrew them onto thefloor on thefar side ofhis bed. He sawthat Cessill had made Sullivan pass out. 

## Similarly, Cessill testified that he woke up as Sullivan was standing over him and saying, "I'm going to punch you in the face." Cessill opened his eyes, andSullivantold him heneededtoleaveimmediately. Bohannontold Sullivanto leave Cessill alone and that she needed to leave. She became more upset. 

## Bohannonand Sullivan arguedverybriefly, andthen Sullivanwenttothekitchen. As Bohannon followed her, Sullivan came out with a knife. She backed 

## Bohannonagainstawall and repeatedlyslashed downwiththeknife, cutting his 

## arm.3 Cessill gotup, grabbed Sullivan, and putherin amartial arts chokehold, 3Cessill testified Sullivan never punched Bohannon but alsoindicated he could not seethem when they were inthe kitchen. -4-NO. 73217-0-1/5 (consol. with No. 73216-1-l)/5 

### causing her to pass out and drop the knife. Bohannon took the knives from the kitchen and hid them. Aftera shorttime, Sullivan woke up and left. 

### The State charged Sullivan with second degree assault with a deadly 

### weapon.4 During Bohannon's testimony, a juror told the court he might know Bohannon through mutual acquaintances. The court denied Sullivan's requestto
excuse thejurorfor cause. 

### Atthe end ofthe trial, the court instructed thejury on self-defense. Over 

### Sullivan's objection, the court gave a first aggressorinstruction informing the jury that self-defense was not available if it found that Sullivan provoked the fight. 

### Also over Sullivan's objection, the trial court declined to give an instruction stating that the amount of force necessary to defend one's self "may vary with the 

### number ofpersonsthe defendantreasonably believes are" threatening violence. 

### During closing arguments, the prosecutor asserted that Sullivan had attempted to gamer the jury's sympathy by suggesting she had been "fearful of

some sort ofsexual assault." Sullivan did notobject. 

### The jury convicted Sullivan ofsecond degree assault and found she was armed with a deadly weapon.5 The trial court imposed an exceptional sentence

4RCW9A.36.021(1)(c). 5RCW 9A.36.021(1)(c); RCW 9.94A.825. -5-NO. 73217-0-1/6 (consol. with No. 73216-1-l)/6 

### of no jail time for the assault.6 Italso allowed Sullivan to serve the mandatory 

### 12-month deadly weapon enhancement7 in the King County Community Center for Alternative Programs Enhanced (CCAP). Sullivan and the State both appealed thejudgmentand sentence. This courtconsolidated the appeals.
ANALYSIS Juror 9 First, Sullivan contends that the trial court denied her right to an impartial jury by not excusing a jurorwho may have known Bohannon. During a break in Bohannon's testimony, juror 9 told the trial court that he was "reasonably confident" he had met Bohannon and believed they might have mutual friends. He said he did not think they had ever had a conversation. He said they might be friends on social media but could not recall having any exchanges on social media either. He confirmed his uncertainty about actually knowing Bohannon. 

### Thejudge asked juror 9 whether anything about this possible connection would make him concerned that it would be "awkward if [juror 9] didn't believe 

### [Bohannon]." The prosecutor asked if juror 9 could remember any interaction with Bohannon and if their possible connection "would have any
6 The court based the exceptional sentence on RCW 9.94A.535(1)(a), 

### which allows for mitigating circumstances where "the victim was an initiator, 

### willing participant, aggressor, orprovokerofthe incident." 7RCW 9.94A.533(4)(b). -6-NO. 73217-0-1/7 (consol. with No. 73216-1-l)/7 

### impact.
.. whatever on you justwatching him and assessing his credibility and his testimony as if it was anyone else." The juror answered "no" to each question. 

### The United States and Washington Constitutions guarantee a defendant 

### therightto animpartialjury.8 Aparty maychallenge ajurorforcause.9 Ajudge mustexcuse "anyjuror, whoin the opinion of the judge, has manifested unfitness


### as ajuror," including "by reason ofbias."10 When a party challenges ajurorfor actual bias, even ifthe juror appears to have "formed or expressed an opinion 

### upon what he or she may have heard or read," to excuse the juror "the court must be satisfied, from allthe circumstances, thatthejurorcannotdisregard such 

### opinion andtry the issue impartially."11 "[T]hetrial court isin the bestposition to 

### determine a juror's ability to be fair and impartial."12 This courtreviews that decision for abuse ofdiscretion.13 

### Here, the trial court did not violate Sullivan's right to an impartialjury by 

### declining to excusejuror9. Whilejuror9believed hemight havemutual friends
8U.S. Const, amend. VI;Wash. Const, art. I, § 22. 9CrR 6.4(c). 10 RCW 2.36.110; CrR 6.4(c). 

### 11 RCW4.44.190; see RCW4.44.170(2) ("Actual bias" means "a state of 

### mind on the part of thejurorin reference to the action, or toeither party, which satisfies the court that the challenged person cannot try the issue impartially and 

### withoutprejudiceto the substantialrights of thepartychallenging."). 12 State v. Noltie, 116Wn.2d 831, 839, 809 P.2d 190(1991). 

### 13 State v.Jorden, 103 Wn. App. 221, 226, 11 P.3d 866 (2000). -7-NO. 73217-0-1/8 (consol. with No. 73216-1-l)/8



### with Bohannon, he did not think they had ever had a conversation. He stated 

### that nothing about their possible connection would make him reluctant to disbelieve Bohannon and that that connection would have no impact on his assessment of Bohannon's credibility. 

### Even ifjuror 9 was confident that he recognized and had met Bohannon 

### and thought they shared mutual friends, those facts alone would not require the court to excuse him. Nothing in the record indicates that the juror's potential 

### acquaintance with Bohannon affected hisopinion of Bohannon's credibility. Even ifhe had formed such an opinion, the trial court would need to be satisfied, from 

### all the circumstances, that juror 9 could not disregard his opinion and decide the 

### issue impartially.14 Thetrial court was in the best position to make this judgment. The record affirmatively supports its decision that juror 9 could decide the case 

### impartially. Thus, the trial court did notabuse its discretionin declining toexcuse thejuror. First Aggressor Jury Instruction 

### Next, Sullivan contends that the trial court erred in giving the jury a first 

### aggressor instruction. The courtinstructed the jury on self-defense and, over Sullivan's objection, instructed thejury, "[l]fyou find beyond a reasonable doubt that the defendant was the aggressor, and that defendant's acts and conduct
14 See RCW 4.44.190. -8-NO. 73217-0-1/9 (consol. with No. 73216-1-l)/9
provoked or commenced the fight, then self-defense is not available as a defense." When the record includes credible evidence from which a reasonablejuror could find that the defendant provoked the need to act in self-defense, an 

### aggressor instruction is appropriate.15 Whether the State produced sufficient evidence to justify an aggressor instruction presents a question of law we review de novo.16 We view the evidence in the light most favorable to the party 

### requesting the instruction—here, the State.17 "[A]n aggressor or one who provokes an altercation" cannot successfully 

### invoke the right of self-defense.18 Although not favored, an aggressorinstruction is proper "'where (1) the jury can reasonably determine from the evidence that the defendant provoked the fight, (2) the evidence conflicts as to whether the defendant's conduct provoked the fight, or (3) the evidence shows that the 

### defendant made the first move by drawing a weapon.'"19 The provoking act must 

### be intentional conduct reasonably likely to provoke a belligerentresponse.20 It

15 State v. Riley, 137 Wn.2d 904, 909-10, 976 P.2d 624 (1999); Manzanares v. Playhouse Corp., 25 Wn. App. 905, 910,611 P.2d 797 (1980). 16 State v. Anderson, 144Wn. App. 85, 89, 180 P.3d 885 (2008). 17 State v. Wingate, 155 Wn.2d 817, 823 n.1, 122 P.3d 908 (2005). 18Riley, 137 Wn.2d at 909. 

### 19 State v. Stark, 158 Wn. App. 952, 959, 244 P.3d 433 (2010) (quoting Anderson, 144 Wn. App. at 89); Riley, 137 Wn.2d at 909-10. 20 State v. Wasson, 54 Wn. App. 156, 159, 772 P.2d 1039 (1989). -9-NO. 73217-0-1/10 (consol. with No. 73216-1-1)/10



### cannotbe words alone.21 And itcannotbe the charged assault.22 But contrary to Sullivan's assertions, the provoking act can be part of a "single course of conduct" that leads to the assault.23 Sullivan contends that the trial court's first aggressor instruction here was both incorrect and unsupported by the evidence. We disagree. 

### The instruction correctly stated the law. In State v. Wingate,24 the Supreme Court approved an instruction with nearly identical wording to the instruction here. Moreover, the instruction here is more specific and thus more favorable to the defendant than the one in Wingate. Itrequired the jury find an 

### "intentional violent act" rather than just an "intentional act."25 Sullivan relies on State v. Arthur.26 But the instructions here and in Wingate are distinguishable from those in Arthur. In Arthur, this court found an instruction that referred to a 

### defendant's "unlawful act" to be overly vague, allowing the jury to speculate

21 Riley, 137 Wn.2d at 912-13. 

### 22 State v. Kidd, 57 Wn. App. 95, 100, 786 P.2d 847 (1990). 

### 23 Rather, "[i]t has longbeen established that the provoking act must also be related to the eventual assault as to which self-defense is claimed." Wasson, 

### 54 Wn. App. at 159. Sullivan cites decisions regarding double jeopardy and unanimity instructions—both issues that are inapplicable here. See State v. Villanueva-Gonzalez. 180 Wn.2d 975, 985, 329 P.3d 78 (2014); State v. 

### Rodriguez, 187 Wn. App. 922, 937, 352 P.3d 200, review denied, 184 Wn.2d 1011 (2015). 24 155 Wn.2d 817, 821, 122 P.3d 908 (2005). 25Wingate. 155 Wn.2d at 821. 26 42 Wn. App. 120, 708 P.2d 1230 (1985). -10-NO. 73217-0-1/11 (consol. with No. 73216-1-l)/11



### aboutwhich act may have been unlawful. The court reasoned that an "unlawful act" could encompass an accidental collision with the victim's car. This court held that a trial court must direct an aggressor instruction toward intentional acts 

### that thejury could reasonably assume would provoke a belligerent response.27 The trialcourts did preciselythat here and inWingate. 

### The evidence also supports the trial court's decision to give the first 

### aggressor instruction. The evidence meets at leasttwo of the threejustifications for offering the instruction.28 First, Bohannon and Cessill's testimony conflicts with Sullivan's about whether Sullivan's conduct provoked the fight. Both men 

### testified that Sullivan attempted to pull Cessill offthe couch and threatened to 

### punch him, and Bohannon testified that Sullivan punched him in the face before he or Cessill used force against her. While "words alone" cannot defeat a selfdefense claim, Sullivan combined her words with physical acts. Second, from 

### the same testimony, the jury could reasonably determine that Sullivan provoked 

### thefight. We therefore rejectSullivan'schallenge to the aggressor instruction.

27 Arthur, 42Wn. App. at 124-25. 

### 28 See Stark, 158 Wn. App. at 959. As to the third justification, Sullivan 

### admits she was the first person to draw a weapon. But none of the witnesses 

### suggested that Sullivan was "ma[king] the first move" in doing so, as she and Bohannon were alreadytussling in allthree accounts. -11-NO. 73217-0-1/12 (consol. with No. 73216-1-l)/12

Multiple Assailants Instruction Sullivan also contends thatthe trial court should have given this instruction that she proposed: As it is within the realm of common experience that two or more 

### people are more likely to inflict injury than only one such person, the amount of force that is necessary to prevent the infliction of 

### injury, and thus is not unlawful, may vary with the number of persons the defendant reasonably believes are about to commit or assist in an offense against a person. 

### We review de novo a trial court's refusal to give an instruction based on a 

### ruling on the law.29 Self-defense "instructions, read as a whole, must make the 

### relevantlegal standard 'manifestlyapparentto theaveragejuror.'"30 Each side is entitledto have thejury instructed on itstheory of thecasewhen some evidence 

### supports that theory.31 Failure to instruct on a defense theory when evidence supports it isprejudicial error.32 In State v. Irons,33 this court held that the trial court's self-defense 

### instruction failed to "'make itmanifestly clear to the jury that it could consider the 

### fact that Irons was faced with multiple assailants.'" Four people had surrounded

29 State v. Walker, 136Wn.2d. 767, 772, 966 P.2d 883 (1998). 

### 30 State v. Irons, 101 Wn. App. 544, 550, 4 P.3d 174 (2000) (internal 

## quotation marks omitted) (quoting State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996)). 31 Rilev, 137 Wn.2d at 908 n. 1. 32 Statev. Williams, 132Wn.2d 248, 259-60, 937 P.2d 1052 (1997). 

### 33 101 Wn. App. 544, 552, 4 P.3d 174 (2000). -12-NO. 73217-0-1/13 (consol. with No. 73216-1-l)/13



### Irons. He had reason to fear all four, but he proceeded to injure only one.34 Even so, the trial court instructed the jury that for Irons to succeed on a selfdefense claim, the jury had to find that Irons "'reasonably believed thatthe victimintended to . . . inflictdeath or great personal injury; and
.. . thatthere was 

### imminent danger of such harm being accomplished.'"35 This court found the instruction allowed Irons to argue his theory of the case. But its inconsistency with Irons's theory prejudiced his ability to present his "theory that he reasonably believed he was in imminent danger of death or great personal injury from 

### multipleassailants—notjust" the victim.36 Sullivan did not have to contend with any inconsistency. The trial court instructed thejurythatforce is lawful when a person "reasonably believes that he
or she is about to be injured in preventing or attempting to prevent an offense against the person, and when the force is not more than is necessary." Nothing inthis or other instructions limits the defendant'sjustification to a reasonable fear of one person or eventual victims, as in Irons. Unlike Irons, Sullivan had the opportunity to present her self-defense argument unimpeded by any inconsistent

34 Irons, 101 Wn. App. at558-59. 35 Irons, 101 Wn. App. at 552 (alteration in original). 36 Irons, 101 Wn. App. at 559. -13-NO. 73217-0-1/14 (consol. with No. 73216-1-l)/14
jury instructions. Instead, the trial court's instructions made the applicable self

### defense standard "manifestly apparent" tothejury.37 Sullivan contends that failure to give the instruction prejudiced her because she was entitled to argue her theory and sufficient evidence supported the instruction.38 This court evaluates eachjury instruction "inthe context ofthe instructions


### as a whole."39 "It is not error to refuse to give a cumulative instruction or one 

### collateral to or repetitious of instructions already given."40 Sullivan's theory was self-defense, and the trial court instructed thejury on thattheory. Her testimony supports hertheorythat she wasjustified indefending herself against both Bohannon and Cessill. But here a multiple assailant instruction would have been cumulative of the trial court's other instructions. As discussed above, the jury instructions adequately conveyed that Sullivan could fear multiple assailants, including people shewas not charged with injuring. Because the trial court's self-defense instructions were sufficient and 

### allowed Sullivan to argue her theory of the case and because the proposed

37 Irons, 101 Wn. App. at 550. 38See Williams, 132 Wn.2d at 259. 39 State v. Benn. 120Wn.2d 631, 654-55, 845 P.2d 289 (1993). 40Benn, 120Wn.2d at 655. -14-NO. 73217-0-1/15 (consol. with No. 73216-1-l)/15
multiple assailant instruction was cumulative, we reject Sullivan's challenge to the trial court's refusal to give that instruction. Closing Arguments Next, Sullivan contends that the prosecutor appealed to jurors' passions and prejudices in asserting that Sullivan had implied she feared being sexually
assaulted. When claiming prosecutorial misconduct, the defendant has the burden of 

### proving that the prosecutor's conduct was both improper and prejudicial.41 In closing arguments, attorneys have "'latitude to argue the facts in evidence and 

### reasonable inferences.'"42 They may not, however, "urg[e] the jury to decide a
case based on evidence outside the record."43 And they may not make "[m]ere 

### appeals to the jury's passion orprejudice."44 If a prosecutor's statements are improper, then this court determines 

### whether those statements prejudiced the defendant.45 When, as here, the defendant did not object at trial, the defendant waived any error unless the misconduct was "so flagrant and ill intentioned that an instruction could not have

41 State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012). 42 State v. Dhaliwal. 150 Wn.2d 559, 577, 79 P.3d 432 (2003) (quoting State v. Smith, 104Wn.2d 497, 510, 707 P.2d 1306 (1985)). 43 State v. Pierce, 169Wn. App. 533, 553, 280 P.3d 1158 (2012). 44 State v. Gregory, 158 Wn.2d 759, 808, 147 P.3d 1201 (2006). 45 Emery, 174 Wn.2d at 760. -15-NO. 73217-0-1/16 (consol. with No. 73216-1-l)/16 

### cured the resultingprejudice."46 "Under this heightened standard, the defendant 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.'"47 In short, this court asks, 

### "[H]as such afeeling ofprejudice been engendered orlocated intheminds of the 

### juryas topreventa [defendant] from having afairtrial?'"48 Here, indescribing the fight, Sullivan testified, 

### A We were rolling around on the floor and next thing I know Ihave a second boy on top of me. I—I don't know—I did not 

### see, Idon't know why, Idon't know how. But then Ihad two boys on top ofme.

A. Iwas terrified. 

### Q. And what were you terrified they might do to you? 

### A. Ijustknew that Iwas getting hurt. That's—that'sall. And I was scared and people were putting their hands on my body and holding me againstmywill for no reason. 

### At other points in her testimony, Sullivan again referred to having "two 

### boys" "on top ofme," and she spoke about her fears during the fight: "I was 46 Emery, 174 Wn.2d at 760-61. This court focuses more on whether an 

### instruction could have cured the prejudice than whether the comments were 

### flagrant and ill intentioned. Emery, 174 Wn.2d at 762. 47 Emery, 174 Wn.2d at 761 (quotingStatev.Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43 (2011)). 

### 48 Emery, 174 Wn.2d at 762 (alterationin original) (quoting Slatterv v. City ofSeattle, 169Wash. 144, 148, 13 P.2d 464 (1932)). -16-NO. 73217-0-1/17 (consol. with No. 73216-1-l)/17
really scared. If I'm already getting beat up by two boys what's going to come next, you know?" Earlier in Sullivan's testimony, her counsel asked whether she and Bohannon had a romantic relationship. Sullivan testified, A. Iwoke up cuddled with him on the couch once, halfdressed, and Iwasn't sure what happened because we were pretty drunkthe night before. And he's the one who informed that we had—had sex. And Ijust kind of pretended it never happened and let it go. He's—I'm not in any way, shape, or form romantically interested in him.
Q. And you—you had just mentioned that time when you did have—you were told you had a sexual— A. Iwasn't happy about it. 

### Q. Did you have—did you ever have a sexual encounter with himanytime besides thattime? A. No. No. 

### Q. And how long before this incident thatwe're—we've allbeen talking about did that happen? A. Maybe two weeks beforethis incident. 

### In closing, the prosecutor suggested that Sullivan had testified she was "fearful of some sort of sexual assault" and argued that she had testified to the 

### two men "grabbing her body" because "she wants to have the strongest emotional reaction," since "any kind ofsexual assault is heinous."
-17-NO. 73217-0-1/18 (consol. with No. 73216-1-l)/18

We conclude that the prosecutor's argument reasonably characterized Sullivan's testimony. In recounting the fight, Sullivan repeatedly mentioned her fear at having "two boys" "on top of me," "putting their hands on my body." She and her counsel both raised the question ofwhere the situation would lead. This account, combined with Sullivan's prior testimony that she regretted having sex with Bohannon and would not have consented to it ifshe had been sober, make itreasonable for the prosecutor to argue that she had implied she feared being sexually assaulted. The prosecutor did not rely on facts outside the record or appeal to the jury's passion or prejudice in suggesting that Sullivan wanted the 

### jury to "have the strongest emotional reaction."49 Rather, that argument fell within the prosecutor's wide latitude to draw reasonable inferences from the evidence. Because the argument was not improper, we do not need to decide whether an instruction could have cured any prejudice that resulted.



### 49 The prosecutor's remarks are also less prejudicial on their face than remarks Washington courts have found improper. See State v. Miles, 73 Wn.2d 67, 69-70, 436 P.2d 198 (1968) (improper and prejudicial to admit hearsay evidence alleging a plan by defendants to perpetrate a robbery like the one with which they were charged); State v. Belgarde, 110 Wn.2d 504, 506-07, 755 P.2d 174 (1988) (improper and prejudicial to describe American Indian defendant as a leader of a "'deadly group of madmen'" and "'butchers, that killed indiscriminately'"); State v. Claflin, 38 Wn. App. 847, 850, 690 P.2d 1186 (1984) (improper and prejudicial to read "vivid and highly inflammatory" poem by anonymous rape victim to jury during closing argument). -18-NO. 73217-0-1/19 (consol. with No. 73216-1-l)/19
Appellate Costs Finally, Sullivan asks this court to deny appellate costs should the State prevail."The commissioner or clerk 'will' award costs to the State ifthe State is the substantially prevailing party on review, 'unless the appellate court directs 

### otherwise in its decision terminating review.'"50 This court has discretion to considerthe issue ofappellate costswhen a party raises the issue in itsbrief.51 InState v. Sinclair,52 this court used its discretion to deny appellate costs to the State where the defendant remained indigent and this court saw "no realistic possibility," given that the defendant was 66 years old and received a 280 month prison sentence, that he would be able to pay appellate costs. We decline to decide appellate costs at this stage. Sullivan's age and 

### length of sentence distinguish her from Sinclair. Ifthe commissioner or court clerk approves a cost bill from the State, RCW 10.73.160(4) allows the 

### sentencing court to remitcosts if payment would "impose manifest hardship" on Sullivan or her family.53
50 State v. Sinclair, 192 Wn. App. 380, 385-86, 367 P.3d 612 (quoting RAP 14.2), review denied, 185 Wn.2d 1034 (2016). 51 Sinclair, 192Wn. App. at 388-90. 

### 52 192 Wn. App. 380, 393, 367 P.3d 612, review denied, 185 Wn.2d 1034 (2016).53 State v. Nolan, 98 Wn. App. 75, 79, 988 P.2d 473 (1999). -19-NO. 73217-0-1/20 (consol. with No. 73216-1-1)/20

CCAP Sentence for Deadly Weapon Enhancement The State contends, in a cross appeal, thatthe trial court did not have the authority to sentence Sullivan to no time in confinement for the mandatory one

### year deadly weapon enhancement. The trial court instead sentenced her to one year in KingCounty's CCAP. 

### Second degree assault is a class Bfelony and a violentoffense.54 Class Bfelonies committed after 1995 with a deadly weapon otherthan a firearm carry 

### a mandatory one-year enhancement.55 When this enhancement applies, courts must impose it"even iffacts permit a departure from the standard range for the 

### underlying offense."56 "Notwithstanding any other provision of law," the enhancement must "be served in total confinement."57 With exceptions not 

### applicable here, "'[t]otal confinement' means confinement inside the physical boundaries of a facility or institution operated or utilized under contract by the 

### state or any otherunitofgovernmentfortwenty-fourhours aday."58

54 RCW 9A.36.021(2)(a); RCW 9.94A.030(55)(a)(viii). Amendments to RCW 9.94A.030, effective August 1, 2009, changed the numbering but not the relevant content ofthe definitions. 55 RCW 9.94A.533(4)(b). 56 State v. Graham, 181 Wn.2d 878, 884, 337 P.3d 319 (2014) 

### (interpreting RCW 9.94A.533). 57 RCW 9.94A.533(4)(e). 58 RCW 9.94A.030(52). -20-NO. 73217-0-1/21 (consol. with No. 73216-1-l)/21

RCW 9.94A.680 allows for alternative sentencing for offenders with sentences of one year or shorter. The only alternative that applies to violent offenders allows that "[o]ne day ofpartial confinement may be substituted for one 

### day of total confinement."59 Here, the trial court imposed the mandatory one-year sentence for the deadly weapon enhancement. That sentence must be served in total 

### confinement.60 Since RCW 9.94A.680(1) allows a sentencing court to substitute partial confinement for total confinement, the trial court could sentence Sullivan to one yearofCCAP only ifCCAP qualifies as "partial confinement." As Sullivan concedes, the Supreme Court already decided, in State v. 

### Medina,61 that CCAP is not "partial confinement." Sullivan asks this court to examine the statutory scheme to decide if the difference between her circumstances and the defendant's in Medina justifies a departure from that binding opinion. She suggests no distinctions, though, and we see none. Medina prohibited the trial court from allowing Sullivan to satisfy the deadly weapon enhancementwith CCAP participation.

59RCW9.94A.680(1). 60 See RCW 9.94A.533(4)(e). 61 Medina, 180 Wn.2d at 289 ("[W]e do not think that participation in the 

### educational, counseling, and service-oriented programs entailed in CCAP meets the statutory definition of 'confinement.'"). -21-NO. 73217-0-1/22 (consol. with No. 73216-1-l)/22

Credit for Time Served in CCAP The State also contends that the trial court could not credit Sullivan for 

### time she already served in CCAP toward the one-yeardeadlyweapon sentence. An offender sentenced to confinement has both a constitutional and a 

### statutory righttoreceive creditfortime theoffender served before sentencing.62 "[A] defendant's ineligibility for a particular type of partial confinement postconviction is not relevant to the question ofwhether that defendant must be 

### credited forpretrialtime served inthatsametype ofpartial confinement."63 RCW 9.94A.680(3) allows the court to credit the offender for time served 

### before sentencing "in an available county supervised community option." As noted above, thatprovision appliesonlyto "offenders convicted ofnonviolentand
nonsex offenses."64 The Supreme Court confirmed, in Medina, that the statute 

### does notpermitthecommunityoptionforviolentoffenders.65 Thetrial courtthus exceeded its authority in crediting Sullivan for time served in CCAP toward her one-yearsentencefor a violentoffense.

62 State v. Speaks, 119 Wn.2d 204, 206, 829 P.2d 1096 (1992); RCW 9.94A.505(6). 

### 63 Medina, 180Wn.2d at 288 (citing Speaks, 119Wn.2d at 208). 64 RCW 9.94A.680(3). 

### 65 Medina, 180 Wn.2d at 290 (applying canon of expressio unius est 

### exclusio alterius). As the Supreme Courtdetermined that the 2009 amendments 

### adding 9.94A.680(3) did notapply retroactivelytoMedina's crime, thatportion of theopinion isdicta. Nonetheless, wefollowthe SupremeCourt's guidance. -22-NO. 73217-0-1/23 (consol. with No. 73216-1-l)/23

Sullivan does not contest the State's statutory arguments. She 

### challenges, instead, the injustice, as a matter of policy, of sentencing her to confinement because CCAP would better benefit her, her health, and the 

### community. Shefurther notes the inherent inconsistency of sentencing her to 12 months for the deadly weapon enhancement while imposing 0 months for the underlying crime dueto Bohannon's partial culpability. Whatever the trial court may have thought about the wisdom behind 

### imposing a mandatory year of confinementfor any crimecommittedwith a deadly weapon, Washington courts have "consistently held that the fixing of legal 

### punishments for criminal offenses is a legislative function."66 The legislature's enactments prohibited the trial court from sentencing Sullivan to CCAP or 

### awarding her credit for time already spent in CCAP. We therefore vacate those 

### provisions and remand the caseto thetrial courtfor resentencing consistentwith this opinion.

66 State v. Ammons, 105 Wn.2d 175, 180, 713 P.2d 719, 718 P.2d 796 (1986). -23-NO. 73217-0-1/24 (consol. with No. 73216-1-l)/24

CONCLUSION We affirm Sullivan's conviction and remand for resentencing.

WE CONCUR: 

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