Ur
<7 • i ,- r-.- •- , IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,

v. DARREN MORRIS-WOLFF, Appellant. No. 72141-1-1 DIVISION ONE

UNPUBLISHED FILED: February 1,2016
Cox, J. — Darren Morris-Wolffappeals his judgment and sentence for 

### residential burglary. The trial court did not comment on the evidence when it instructed thejury that violation of a court order "may or may not" be a crime 

### against a person, depending on the facts and circumstances ofthe violation. Morris-Wolff fails to establish that he can argue for the first time on appeal that 

### the trial court erred by answering a jury question during deliberations. And the court did not abuse its discretion by denying his motion for a curative instruction 

### made after thejury had begun to deliberate. Likewise, the denial of his motion for a new trial does not require reversal. There was no cumulative error. We affirm. Darren and Lisa1 Morris-Wolffwere married and had two children. After an altercation, Lisa obtained a series ofprotection orders against him. These

1We adopt the State's naming convention and refer to LisaMorris-Wolffas "Lisa" to avoid confusion. U- OJNo. 72141-1-1/2 

### orders prohibited Morris-Wolff from contacting either Lisa or their children and from being within 500 feet ofthe family home. Subsequently, Morris-Wolffrepeatedly called and sent text messages to Lisa. Lisa did not answer the calls, but she responded to a single message stating: "[Our] [k]ids do need you and [are] proud ofyou, too. Please stop texting and calling. Itisn'tthe right way to resolve this and can only get you into trouble."2 Morris-Wolfftestified at trial that he believed that Lisa's response, telling 

### him not to contact her by phone, was an invitation to talk to her inperson. Thus, he went to her home on August 14, 2013, despite the fact that a protection order prohibited him from doing so. Hoping to avoid being seen by neighbors, he 

### parked away from the house and approached the side of the house. He saw Lisa and called out to her. She ran inside and called 911. 

### According to his testimony, once Morris-Wolffrealized that Lisawas 

### calling 911, he "freaked out."3 Realizing he was likely going tojail, he decided to speakwith his children. He wanted them to know that he loved them and that he 

### was not abandoning them when he was arrested forviolating the protection order 

### against theirmother. Deciding to do so immediately, he broke down the door to the house, while Lisa watched his intrusion. He went inside, and spoke to his children. 

### Based on this incident, the State charged Morris-Wolffwith a number of 

### offenses, including residentialburglary. At hisfirst trial, the juryfound Morris2Report ofProceedings (June 10, 2014) at 140. 3Report ofProceedings (June 12, 2014) at 101.No. 72141-1-1/3 

### Wolffguilty ofsome charges, not guilty ofothers, and could not reach a verdict on the residential burglary charge. 

### The State elected to retryhim on only the residential burglarycharge based on the August 14, 2013 incident. At the second trial, the jury found him guilty ofresidential burglary. Morris-Wolffappeals. COMMENT ON THE EVIDENCE 

### Morris-Wolffargues that the court erroneously instructed thejury that violation of a court order "may or may not" be a crime against a person, depending on the facts and circumstances ofthe violation. He claims this was a comment on the evidence. We disagree. Article IV, section 16 ofthe Washington constitution prohibitsjudges from commenting on the evidence. A court does so "ifthe court's attitude toward the merits ofthe case or the court's evaluation relative to the disputed issue is inferable from the statement."4 

### Aproperjury instruction is not a comment on the evidence.5 Butifan instruction "essentially resolve[s] a contested factual issue" then it is an improper comment on the evidence.6 The question is whetherthe challengedjury instruction either 

### communicates to thejury the court's attitude toward the merits ofthe case or

4State v. Lane. 125 Wn.2d 825, 838, 889 P.2d 929 (1995). 5State v. Brush. 183 Wn.2d 550, 557, 353 P.3d 213 (2015). 6ld 3No. 72141-1-1/4 

### resolves a disputed factual issue. Notably, resolution of a disputed legal issue is not within the scope ofthe constitutional prohibition. 

### Under RCW 9A.52.025, "Aperson is guilty ofresidential burglary if, with intent to commit a crime against a person or property therein, the person enters
or remains unlawfully in a dwelling 

### Whether a crime qualifies as a crime against property underthis statute is 

### a question oflaw.7 Similarly, whether a crime is a crime against a person is also a question oflaw.8 

### Here, the challengedjury instructionstates that "A court order violation 

### mayormaynotbe 'a crimeagainst a person' depending on the facts and circumstances ofthe violation."9 This instruction did not resolve a contested 

### factual issue. The plain words of the instruction address the possible legal effect of a court order violation. Likewise, the instruction does not communicate the court's attitude toward the merits ofthe case. It is not an improper comment on the evidence. 

### The State's theory of the case was thatMorris-Wolffintended tocommit one oftwo crimes—assaultingLisa orviolating a no-contactorder—when he 

### unlawfully entered thehome. Accordingly, thecourt's otherinstructions defined both assault and violation of a no-contact order. 

### We note that the State proposed the instruction at issue because thejury 

### in thefirst trial had repeatedly asked the courtwhether a violation of a no-contact 7State v. Kindell. 181 Wn. App. 844, 851, 326 P.3d 876 (2014). 8State v. Stinton, 121 Wn. App. 569, 574, 89 P.3d 717 (2004). 9Clerk's Papers at 249 (emphasis added).No. 72141-1-1/5 

### orderwas a crime against a person. In response to the State's proposal at this trial, Morris-Wolffargued thatthe State's proposed instruction would be a comment on the evidence. Specifically, he claimed that itsingled out one ofthe two crimes that the State alleged Morris-Wolffintended to commit. Addressing Morris-Wolff's concerns, the court offered to also instruct the 

### jurythat assault qualified as a crime against a person. Additionally, the trial court noted that itwas more obvious that assault was a crime against a person, compared to violation of a no-contact order, which the trial court characterized as

a more "abstract" crime. Morris-Wolff did not respond to the court's offerto instruct thejury that assault also qualified as a crime against a person. The court then gave the instruction he now challenges. Forthe reasons the trial court identified, itwas properto instruct thejury


### on whether violation of a no-contact order was a crime against a person. Giving the instruction was designed to avoid confusion ofthisjury, a possibility that the 

### first trial suggested was likely in this trial. Moreover, this instruction neither communicates the court's view ofthe merits ofthe case nor resolves a factual— 

### as opposed to a legal—issue. In fact, itdoes not even resolve the legal issue: the possible effect ofviolation of a court order. 

### Morris-Wolffargues that the instruction implicitly suggests that the State proved violation of a court order. Itdoes no such thing. Rather, itneutrally 

### states that it "may or may not be 'a crime against a person,'" depending on the circumstances. And the court instructed thejury on the elements of violation of aNo. 72141-1-1/6 

### court order, indicating that that itwas thejury's role to determine whether MorrisWolff intended to violate a court order. 

### For these reasons, we reject this unpersuasive argument. ANSWER TO JURY QUESTION 

### Forthe first time on appeal, Morris-Wolffargues that the court improperly answered a question from thejury during its deliberations. Specifically, he argues that the court's answerto a jury question was inconsistent with its other written instructions given before closing arguments. Because he did not preserve this claim by arguing it below, and also fails to show that he may raise this issue under RAP 2.5(a), we do not reach it. Before answering thejury's question during deliberations, the court gave both parties the opportunity to review the proposed answer. The record shows that the State reviewed the proposed answer and concurred that itwas proper. The record does not show that Morris-Wolffaddressed the court's proposed
answer either by way of objection or otherwise. The court then gave the proposed answer in response to thejury's question. Accordingly, there was no preservation of any objection to the proposed answer. 

### This court generally does not reviewissues first raised on appeal.10 But
an appellant may raise an issue for the first time on appeal if it is a manifest error 

### affecting a constitutional rightunder RAP2.5(a).11 "Criminal law is so largely constitutionalized that most claimed errors can be phrased in constitutional
10 RAP 2.5(a). 11 State v. Kalebauqh. 183 Wn.2d 578, 583, 355 P.3d 253 (2015).No. 72141-1-1/7 

### terms."12 Thus, to raise an issue for the first time on appeal, an alleged error must be both constitutional and manifest. 

### Under RAP 2.5(a), courts ask two "gatekeeping" questions: "(1) Has the 

### party claiming error shown the error is truly of a constitutional magnitude, and if 

### so, (2) has the partydemonstrated that the error is manifest?"13 A manifest error "'requires a showing of actual prejudice.'"14 "To demonstrate actual prejudice, there must be a 'plausible showing by the 

### [appellant] that the asserted error had practical and identifiableconsequences in the trial ofthe case.'"15 

### Here, Morris-Wolffdoes not address RAP 2.5(a) in his opening brief. And 

### his reply briefdoes notfully address why his claim fallswithin RAP2.5(a)'s narrow exception. Specifically, he fails to argue why this alleged error is manifest. Thus, we do not reach the merits of his unpreserved argument. CURATIVE INSTRUCTION AND NEW TRIAL MOTION 

### Morris-Wolffnext makes two related arguments. He firstargues that the 

### trial court erroneously denied his requestfor a curativeinstruction while the jury deliberated. He nextargues that the courtabused its discretion by denying his motion for a new trial following the guilty verdict. Underlying both arguments is 

### his contention that the prosecutor committed misconduct during closing

12 State v. Lynn. 67 Wn. App. 339, 342, 835 P.2d 251 (1992). 13 Kalebauqh. 183 Wn.2d at 583. 

### 14id. at 584(alteration in original) (internal quotation marksomitted) (quoting State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009)). 

### 15 Id (internal quotation marks omitted) (quoting O'Hara, 167Wn.2d at99). 7No. 72141-1-1/8 

### argument. We hold that the court did notabuse its discretion byfailing to give a curative instruction because Morris-Wolff failed to request one before the 

### beginning of deliberations. Additionally, the court did notabuse its discretion by denying Morris-Wolff's motion for a new trial because the evidence he relied on 

### inhered inthejury's verdict. Curative Instruction 

### Morris-Wolffargues that the court abused its discretion by declining to give thejury a curative instruction. We disagree. To prevail on a claim ofprosecutorial misconduct, the defense must 

### establish that the prosecutor's conduct was both improper and prejudicial.16 During closing argument, prosecutors have "wide latitude to draw and 

### express reasonable inferences from the evidence."17 Butprosecutors may not "make prejudicial statements that are not sustained by the record."18 We review a trial court's ruling on alleged prosecutorial misconductfor abuse ofdiscretion.19 During closing argument, Morris-Wolffargued that he did not enterthe 

### house to assault Lisa on August 14, 2013. He argued that he intended to see his children. According to his testimony, he wanted them to know that he loved them

16 State v. Emery. 174 Wn.2d 741, 756, 278 P.3d 653 (2012). 17 State v. Reed. 168 Wn. App. 553, 577, 278 P.3d 203 (2012). 18 State v. Dhaliwal. 150 Wn.2d 559, 577, 79 P.3d 432 (2003). 19 State v. Lindsay. 180 Wn.2d 423, 430, 326 P.3d 125 (2014); State v. Stenson. 132 Wn.2d 668, 718, 940 P.2d 1239 (1997).
8No. 72141-1-1/9 

### and that he was not abandoning them when he was likely to be arrested for violating the protection order against their mother. In rebuttal, the prosecutor stated: This isn't a circumstance where [Morris-Wolff] went to the kids' daycare, all right. He didn't go to the kids' school, all right. Although the testimony was that he was familiar with those processes, all right, he lived there and he went to the same daycare and the same school and he certainly did not go on August 14th as defined in State's Exhibit 8, the orderfor protection that Lisa asked for, to the supervised visitation that was ordered with his childrenJ20! At this point, Morris-Wolffobjected on the basis that the argument was misleading. The court overruled the objection. The prosecutor later repeated the argument: Because while Lisa followed a court process, she petitioned 

### for a protection order, the defendant didn't show up for those 

### hearings. He had supervised visitation.1211 Morris-Wolff objected again on the basis that the argument was 

### misleading. This time, the court sustained the objection. Notably, Morris-Wolff did notthen request any curative instruction afterthe court sustained the second of his two objections. The prosecutorfinished his rebuttal, and the jury left the courtroom to begin its deliberations. At this time, Morris-Wolffstated that he intended to research the remedy for the prosecutor's allegedly misleading statements during closing. 

### Afterthe parties returned from recess and whilethejurywas deliberating, Morris-Wolffasked the court to give thejury a curative instruction. He asked that
20 Report ofProceedings (June 16, 2014) at 63. 21]d at 64. 9No. 72141-1-1/10 

### the court "instructthejurors that between July 5, 2013 and August 14, 2013, Mr. Morris-Wolff was not legally permitted to visit[] with his children supervised or 

### unsupervised because ofthe existence ofthe no-contact order."22 Morris-Wolff argued that this instruction was necessary to cure the State's misleading statements during closing about visitation. Inthe alternative, he asked the court to instruct thejury to disregard the State's argument on supervised visitation. The court denied these requests for alternative curative instructions. The court stated, among other things, that such instructions would likely confuse the 

### jury. The court determined that it would confuse thejury to receive a new instruction because the court had informed thejury that they would not receive 

### any further instructions. The court also determined that thejury might not understand the term "supervised visitation" and that visitation was not "what this 

### case [was] about," so the jurycould give the instruction undueweight.23 The courtfurther noted that it would be "extremely risky" to give thejury another 

### instruction when counsel would not be able to argue itto thejury.24 We conclude thatthe primary focus ofMorris-Wolffs argument is whether 

### the trial court properly denied his requestforalternative curative instructions 

### while the jurydeliberated. Hedoes notappearto complain that the trial court sustained only the second of his two objections to the prosecutor's allegedly misleading argument.

22 Id at 69. 23 Jd at 72. 24 Id. 10No. 72141-1-1/11 Here, itwas not an abuse ofdiscretion for the court to deny his requests for curative instructions. The record is clear that Morris-Wolfffirst requested curative instructions while thejury deliberated, not before. For the reasons the trial court identified, giving thejury a curative 

### instruction could have confused thejury. Morris-Wolffcould have immediately requested curative instructions upon the court sustaining his second objection to 

### the prosecutor's argument. But he did not do this. Instead, he waited until after 

### thejury had begun deliberating. Thatwas simply too late. The court did not abuse its discretion by declining to give thejury a curative instruction during its deliberations. Motion for a New Trial 

### Morris-Wolffalso argues that the court should have granted his postverdict motion for a new trial based on the prosecutor's allegedly misleading 

### closing argument. Because the evidence that he relied on inheredin the jury's verdict, we disagree. 

### Afterthe verdict, Morris-Wolffmoved for a new trial under CrR 7.5, arguing 

### that the State's allegedly misleading closing argument necessitated a newtrial. Morris-Wolffsupported this motion with a declaration from his counsel. His counsel stated that he spoke to the jurors aftertrial. Severaljurors indicated that 

### they were surprised that the protection orders prohibited Morris-Wolfffrom 

### attending supervisedvisitation with hischildren. And onejuror"stated that the

11No. 72141-1-1/12 

### fact that [Morris-Wolff] had not been attending the supervised visits was a "'nail in the coffin.'"25 We review for abuse of discretion a trial court's decision on a motion for new trial.26 "A trial court abuses its discretion if a decision is manifestly 

### unreasonable orbased on untenable grounds or untenable reasons."27 "Appellate courts will generally not inquire intothe internal process by 

### which the juryreaches itsverdict."28 Thus, evidence that inheres in the verdict cannot support a new trial.29 "One test is whetherthe facts alleged are linked to thejuror's motive, intent, or belief, or describe their effect upon him; if so, the statements cannot be 

### consideredfor they inherein theverdict and impeachit."30 Jurors' erroneous beliefs about facts orthe law inhere in the verdict.31 "[T]heeffectthe evidence 

### may have had upon the jurors or the weightparticularjurors may have given to 

### particularevidence" also inhere in theverdict.32

25 Clerk's Papers at 265. 26 State v. Hawkins. 181 Wn.2d 170, 179, 332 P.3d 408 (2014). 27 Skaait County Pub. Hosp. Dist. No. 304 v. Skaait County Pub. Hosp. Dist. No. 

### 1, 177 Wn.2d 718, 730, 305 P.3d 1079 (2013). 28 Breckenridqe v. Vallev Gen. Hosp.. 150 Wn.2d 197, 204, 75 P.3d 944 (2003). 29 id 30 Gardner v. Malone. 60 Wn.2d 836, 841, 376 P.2d 651, 379 P.2d 918 (1962). 31 id at 842. 32 Breckenridqe. 150 Wn.2d at 205 (quoting Cox v. Charles Wrioht Academy. Inc., 70 Wn.2d 173, 179-80, 422 P.2d 515(1967)).
12No. 72141-1-1/13 

### Here, when Morris-Wolffmoved for a new trial, the evidence he relied on 

### inhered in the jury's verdict. His counsel's declaration went to the jurors' beliefs about facts in the case and the effect those beliefs had on their deliberations. The court did not abuse its discretion when it denied his motion for a new trial. CUMULATIVE ERROR 

### Morris-Wolfffinallyargues that cumulative error requires reversal. 

### Because any errors here did not deny him a fair trial, we disagree. Where several errors standing alone do not warrant reversal, the cumulative error doctrine requires reversal when the combined effects ofthe

errors denied the defendant a fair trial.33 Here, as described earlier, the court did not err or abuse its discretion. Thus, we reject this argument. We affirm thejudgment and sentence.

WE CONCUR: 

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33 State v. Davis. 175 Wn.2d 287, 345, 290 P.3d 43 (2012). 13 \.SY<\