### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OFWASHINGTON, No. 78603-2-I

Respondent, DIVISION ONE V. UNPUBLISHED OPINION ZACHARYALLEN ANDERSON,

Appellant. FILED: January21, 2020 APPELWICK, C.J.

— Anderson challenges the judgment and sentence imposed following hisjury conviction forfelonyviolation ofa no-contact orderand interfering with domestic violence reporting. He contends that prosecutorial misconduct violated his right to a fairtrial. We affirm Anderson’s convictions and remand onlyto strike the criminal filing fee, DNA collection fee, and interest on his nonrestitution legal financial obligations from thejudgment and sentence. FACTS ZacharyAnderson and Michele Davis began dating in 2004 and have lived together off and on since that time. The couple have two children together. According to Davis, the relationship was ‘[t]umultuous.” In September 2016, Anderson was homeless. A domestic violence no contact order prevented Anderson from having any contact with Davis. Nevertheless, Anderson showed up at the apartment Davis shared with the children and asked if he could staythere. Davis allowed him to do so.No. 78603-2-1/2
On September 15, Anderson and Davis were watching a movie after the children were asleep. Anderson and Davis began arguing. To defuse the situation, Davis went outside fora cigarette. Anderson yelled at Davis to get back inside. When Davis attempted to return, Anderson blocked herentry back intothe apartment. Davis tried to move pastAnderson, and Anderson hit her in the nose with a closed fist. Davis’s nose began bleeding and she got past Anderson and went into the bathroom. Anderson followed Davis into the bathroom. He twisted her right arm behind her back, slammed her head into the wall, and pinned her there. Anderson held Davis againstthe wall forapproximatelya minute while she screamed forhim to let hergo. When Anderson released Davis, he pulled his shirt off, got into a boxing stance, and said, “Let’s go.” Anderson began inching towards Davis. Davis attempted to kickAnderson, causing herto reinjure a sprained ankle and 

### cry out in pain. Anderson called Davis a “baby” and walked out. Davis fled through the apartment’sfrontdoorcalling forhelp. As she did, Anderson slammed the doorand locked Davis out. Neighbors called 911. Officer Kristopher Muñoz and Officer Brady Galloway responded to the apartment complex. The officers attempted to enter the apartment butAnderson refused to come to the door. The officers eventually used a breaching tool toforcethe dooropen and arrested Anderson. Thefollowing day, Davis found hercell phone taken apart and the pieces hidden throughoutthe apartment. The State charged Anderson with felonyviolation ofa no-contactorderand interfering with domestic violence reporting. The State alleged as aggravating
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factors that the crimes were committed against a family member and within the sightorsound ofminorchildren. A

### juryconvictedAnderson as charged. Anderson appeals. DISCUSSION Anderson arguesthatthe prosecutorcommitted misconduct by purposefully eliciting evidence in violation of a pretrial ruling and improperly bolstering Davis’s credibility. He contends that the cumulative effect ofthis misconduct denied him
a fairtrial. We review allegations of prosecutorial misconduct for abuse of discretion. Statev. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125 (2014). To prevail on a claim of prosecutorial misconduct, a defendant must establish that the prosecutor’s conductwas both improper and prejudicial in the context ofthe entire record and the circumstances attrial. State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011). To establish prejudicethe defendant must prove thatthere is a substantial likelihood that the instances of misconduct affected the jury’s verdict. j.ç[~. at 442- 43. And, ifthe defendant failed to object to the challenged argument at trial, the claim iswaived unlessthe argument is soflagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by an admonition to thejury. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994). Priorto trial, the State sought to admit evidence of six ofAnderson’s prior assaults of Davis pursuant to ER 404(b). In one ofthe previous assaults, Officer Galloway was the responding officer. Davis told Officer Galloway that Anderson
came into herhouse at3:15 a.m., and when Davistried to call the police, Anderson
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broke hercell phone. Davis alsotold OfficerGallowaythatAnderson head-butted herthe week prior, causing swelling and bruising, and that she was very afraid of him. The trial court excluded the evidence, determining that its prejudice to Anderson outweighed its low probative value. The trial court did not incorporate its oral ruling into awritten order. During the direct examination of Officer Muñoz, the prosecutor asked whether he had been to Davis’s apartment before. [PROSECUTOR:] When you received thatcall, did you recognizethe address? [OFFICER MU1~JOZ:] I recognized the apartment complex, yes. We respond there fairly regularly, so I knewthe location. [PROSECUTOR:] Did you knowwho lived in the apartment number you were being dispatched to? [OFFICER MUf~iOZ:] I did not. [PROSECUTOR:] When you got to the call, did you recognize the apartment and knewwho lived there? [OFFICER MUIcJOZ:] I had been there in the past, but I

-- it was an incidentthat I really couldn’t recall atthe time, and I had known that the victim in the case from prior incidents, but

-- [DEFENSE COUNSEL]: Your Honor, I would object. THE COURT: Objection sustained. The response is stricken. Thejury is instructed to disregard it. [PROSECUTOR:] Do you know who resides in A103 in in the Somerset complex? [OFFICER MUfcJOZ:j Yes. [PROSECUTOR:] Who resides there? [OFFICER MUPJOZ:] Michele Davis.

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[PROSECUTOR:] Anyone else reside therewith her? [OFFICER MUf~JOZ:] Hertwo children, to the best of my knowledge. During the direct examination of Officer Galloway, the prosecutor asked about his personal experiencewith Davis’s apartment. [PROSECUTOR:] Do you recall hearing a 911 call forservice atthe YWCA orthe SomersetApartments? [OFFICER GALLOWAY:] I do. [PROSECUTOR:] Did you recognizethataddresswhen itcame out? [OFFICER GALLOWAY:] I did. [PROSECUTOR:] Specifically, the Unit No. A103? [OFFICER GALLOWAY:] I did. [PROSECUTOR:] Do you knowwho resides at UnitAl03? [OFFICER GALLOWAY:] I do now. I didn’t recall specifically the names atthe time. [PROSECUTOR:] Butyou are awarefrom yourtotal experiencewho lives there? [OFFICER GALLOWAY:] Correct. [PROSECUTOR:] Who lives there? [OFFICER GALLOWAY:] The defendant, Mr. Anderson, and then Michele Davis. [PROSECUTOR:] Were there children that lived there? [OFFICER GALLOWAY:] Yes. Anderson did not objectto Officer Galloway’s testimony. Anderson argues that the prosecutor committed reversible misconduct by eliciting evidence that Davis and Anderson had prior contacts with the police, in

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violation ofthe trial court’s ruling. He contends thatthe prosecutor’s purpose was to suggestthatAnderson had previously assaulted Davis. Under ER 404(b), evidence of other crimes, wrongs, or acts is presumptively inadmissible to prove character and show action in conformity therewith. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). Here, the trial court prohibited the Statefrom introducing evidence ofpriorbad acts: namely, that Anderson had assaulted Davis several times in the past. Neither Officer Muñoz norOfficerGallowaysuggested thatAnderson had assaulted Davis. “While being known to a police officer may be suggestive of bad acts, it is certainly not conclusive.” State v. Clemons, 56 Wn. App. 57, 62, 782 P.2d 219 (1989). The questioning bythe prosecutorwas relevantto establish who lived in the apartment, and the fact that Anderson and Davis had a domestic relationship in which they had previously lived together.1 As to Officer Muñoz, Anderson fails to showthat he was prejudiced bythe prosecutor’s questioning. Officer Muñoz testified onlythat he knew Davis and her children lived in the apartment. He testified that he did not rememberwhy he had been to Davis’s apartment before. Moreover, the trial court instructed the jury to disregard the testimony. Absent evidence to the contrary, we presume that the juryfollowed thetrial court’s instructions. Statev. Davenrort, 100Wn.2d 757, 763- 64, 675 P.2d 1213 (1984). Anderson presents no evidence suggesting that the juryfailed to followthe trial court’s instruction to disregard the stricken testimony.

1 Anderson argues that the State had already established these facts through Davis’s testimony. But, the State is “entitled to prove its case by evidence of its own choice.” Old Chiefv. U.S., 519 U.S. 172, 186, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997).
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As to Officer Galloway, Anderson did not object to the questioning. When
a trial court has granted a motion in limine, the party that sought the order must objectto any potential violation in orderto preserve the errorfor appeal. State v. Weber, 159Wn.2d 252, 271-72, 149 P.3d 646 (2006). Anderson has thus waived review. Even ifthis court were to considerAnderson’s claim, he must show that the State’s questioning was so flagrant and ill-intentioned that it resulted in an enduring prejudice that could not have been neutralized by a jury instruction. Anderson fails to do so. Officer Gallowaytestified onlythat he knewwho lived in Davis’s apartment. He did nottestifythat he had ever been there, northat he had been involved in Anderson’s prior assaults of Davis. And, the jury was already
aware that a domestic violence no-contact order prevented Anderson from contacting Davis.2 The jury could reasonably have inferred that Anderson had previously committed a crime ofdomesticviolence against Davis. Anderson next contends that the prosecutor improperly bolstered Davis’s testimony bysuggesting the police found herto be credible. It is misconductfora prosecutorto state a personal beliefas tothe credibility ofa witness orthe guilt of
a defendant. Lindsay, 180 Wn.2d at437. But, a statement is misconduct only if it

2The order provided asfollows: Based upon the record both written and oral, the court finds that the defendant has been charged with, arrested for, orconvicted ofa domestic violence offense, that the defendant represents a credible threat to the physical safety ofthe protected person, and the court issuesthis Domestic Violence No-contact Order underchapter 10.99 RCWto prevent possible recurrence ofviolence.
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is a clear and unmistakable expression ofa personal opinion. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995). Anderson challenges the testimony of Officer Muñoz and Officer Galloway thatthey had probable cause to arrestAnderson, and that they arrested him and transported him to jail.3 He contends that this constituted vouching for Davis’s credibility because it suggested the police believed that Anderson assaulted her. But, Anderson cites to no authority holding thatan officer’s description ofan arrest of a criminal defendant is an improper opinion on a witness’s veracity or a defendant’s guilt. Anderson also contends that the prosecutorvouched for Davis’s credibility by referring to her as the “victim” during the direct examination of Officer Muñoz. But, Anderson did not seek to prohibit use ofthe term and did not object during Officer Muñoz’s testimony. Furthermore, we have held that the use of the term “victim” does not ordinarily “convey to the jury the court’s personal opinion ofthe case.” State v. Alcier, 31 Wn. App 244, 249, 640 P.2d 44 (1982). Anderson contendsthatthe cumulative effectofthis misconductdenied him the right to a fair trial. The cumulative error doctrine applies where multiple trial
errors combine to denythe accused afairtrial, even ifthe errors individuallywould notwarrant reversal. In re Det. ofCoe, 175 Wn.2d 482, 515, 286 P.3d 29 (2012). Because Anderson has not demonstrated error, he was not deprived ofa fairtrial.

~Anderson objected tothe testimony ofOfficer Galloway but nottothat ofOfficer Muñoz. 8No. 78603-2-1/9
Finally, Anderson challenges the criminal filing fee and DNA (deoxyriboneucleic acid) collection fee imposed as part of his sentence, as well as the imposition of interest on his legal financial obligations. Anderson contends, and the State concedes, thatthe fees and interest must be stricken because he is indigent. Former ROW 36.18.020(2)(h) (2015) was amended to provide that the filing fee “shall not be imposed on a defendant who is indigent.” LAWS OF 2018, ch. 269, 

## § 17, at 1632. And, former ROW 10.82.090 (2015) was amended to provide that “no interest shall accrue on nonrestitution legal financial obligations.” LAWS OF 2018, ch. 269, 

## § 1, at 1615. Although these fees were mandatorywhen imposed, theWashington Supreme Oourt held in State v. Ramirez, 191 Wn.2d 732, 747, 426 P.3d 714 (2018), thatthese amendments applyto cases thatwere not yet final when the amendmentswere enacted. We acceptthe State’s concession and remand forthe trial courtto strike these fees from thejudgment and sentence. In a pro se statement of additional grounds, Anderson contends that he received ineffective assistance ofcounsel because his trial attorneywas sleeping during the trial. Anderson also claims that he was not provided his prescribed medications for post-traumatic stress disorder and attention deficit disorder, and thus he was incompetentto stand trial. But, these arguments rest on allegations that are outside the record and therefore cannot be considered on direct appeal. State v. McFarland, 127 Wn.2d 322, 337-38, 899 P.2d 1251 (1995). A defendant wishing to raise issues involving evidence or facts not in the record must do so through a personal restraint petition.

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We remand forthe trial courtto strike the criminal filing fee, DNA collection fee, and any nonrestitution interestfrom thejudgment and sentence. In all other respects, we affirm.

‘F WE CONCUR:

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