### 20i^fOCT 27 AH ^ 56

IN THE COURT OFAPPEALS FOR THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, Respondent,
v. FRANCIS G. BATO,Appellant. No. 70943-7-1

UNPUBLISHED OPINION 

### FILED: OCT 2 7 2014 PerCuriam

— Francis Bato appeals his convictions for unlawful imprisonment, assault, and violating a no-contact order. He contends the prosecutor's repeated references in closing argumentto facts outside the record amounted to misconduct and denied him a fair trial. Because the alleged misconduct
was the subject of a mistrial motion and the court was within its discretion in denying that motion, we affirm. Based on allegations that Bato committed domestic violence against his girlfriend, Dinah Jimenez, the State charged him with unlawful imprisonment, fourth degree assault, interfering with domestic violence reporting, and violation of a court order. At trial, the State's evidence established that on the evening of December 13, 2012, a friend drove Bato and Jimenez to Jimenez's apartment. Allthree entered the apartment. Jimenez eventually asked Bato and his friend to leave, but Bato refused and spent the night at Jimenez's apartment.No. 70943-7-1/2 

### The next morning, Bato drove Jimenez to work. After dropping her off, Bato 

### foundJimenez's iPad in his car and read some Facebook messages she had received from a male co-worker, Ronel Bunger. Laterthat day, Bato and Jimenez were at her apartment when she received a 

### phone call from Bunger. Bato became angry when he realized the callwas from 

### Bunger. Jimenez asked him to leave, but Bato refused to go and toldJimenez not to
answerthe phone. He then took Jimenez's phone from her, removed the battery, and put it in his bag. Jimenez testified that she tried to leave the room three times, but Bato blocked the doorway and held her by herforearms. Roughly 30 minutes passed before Bato left and went outside. While he was gone, Jimenez sent a Facebook message to Bunger, stating, "I need help." Shortly thereafter, Jimenez heard her phone ringing in the bedroom and answered it. Bato came into the bedroom and grabbed the phone from Jimenez, causing her hand to bleed. Bato asked Jimenez, "Who are you calling?" She said Bunger had called to tell herthe police were on theirway. King County Sheriff's Deputies Julian Chivington and Steven Perry investigated the incident. Deputy Chivington testified that Bato initially said he had not touched Jimenez. He later admitted that he was upset that Jimenez had another boyfriend and "grabbed her hand off ofthe doorknob and wouldn't let her leave." Jimenez was "distraught" and complained of pain in her arm. Deputy Chivington 

### noticed injuries on her arms and photographed them. The photographs, which wereNo. 70943-7-1/3 

### admitted as exhibits, showed red marks and bruising on Jimenez's bicep and forearm. DeputyChivington testified that three or four of the red marks were grouped in a manner consistentwithsomeone's fingertips. Jimenez testified thatthe marks "camefromthe time that [Bato] was stopping me to leave the room." Deputy Perry testified that Bato led himand Deputy Chivington intothe apartment where they found Jimenez "seated on the floor with her knees pulled up to 

### her chest, arms wrapped around her legs." Deputy Perry spoke privately with Jimenez and determined there was probable cause to arrest Bato. Jimenez's written statement to police was not admitted at trial. Jimenez 

### admitted during hertestimony, however, that she told police that Bato dragged her and threw her on the bed. She explained that she made the statement to police because "I was not in my right mind and Iwasjust afraid." When asked generally about the statement, she said, "I don't really recall anymore what Ihave said." When asked specifically ifshe told police that Bato had knives or threatened to kill her, the police, and Bunger, she stated, "I don't really remember." Bato testified and denied striking or pushing Jimenez or doing anything to stop herfrom leaving. He also denied grabbing any knives, leaving the apartment, or making any threats to kill Jimenez, the police, or Bunger. He admitted touching Jimenez because she was "hysterical" and he wanted to "calm her down." He claimed he "held her two hands, and then
... sat her on the bed" and "laid herNo. 70943-7-1/4 

### down." He said he "wasjust preventing her from being hysterical." He admitted taking Jimenez's phone and removing the battery. 

### During the prosecutor's closing argument, the following remarks, objections, and rulings occurred:1 Prosecutor: Understandably, you may wantto know about everything 

### that happened, such as the knives, the threats, the 

### dragging. And Isubmit to you that that is what happened that night. 

### Defense: Objection, Your Honor; facts not inevidence. Noone testified to the majority ofthose things. She asked about them. 

### Court: The objection is overruled. The jurors are reminded that the statements by the attorneys during closing argument are not in and ofthemselves evidence.


### Prosecutor: So how did [Jimenez's] account change? She said that 

### [Bato] didn'tcause her any pain that night. She said that he didn't drag her to the bedroom, that he didn't grab
1Bato mentions two additional instances of alleged misconduct, one involving 

### possible pressure onJimeneztotestifyfavorably toBato and anotherinvolving the nature ofthejury's task. Because he does not support hischallengeto these remarks with meaningful analysis orargument, they need not beconsidered. Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992) 

### (argumentnotsupported byauthority); Statev. Elliott, 114Wn.2d 6, 15, 785 P.2d 440(1990) (insufficientargument); Saundersv. Lloyd's ofLondon, 113 Wn.2d 330, 345, 779 P.2d 249 (1989) (insufficientargument andauthority). Wenote, however, 

### that theremarks regarding possible pressure on Jimenez appear to have been reasonable inferences fromthe evidence and that asking the jury to hold Bato 

### "accountable" wasnotimproper. Statev. McNallie, 64Wn. App. 101, 111, 823 P.2d 

### 1122 (1992) (notimpropertotelljurythattheirverdictwill determinewhether"the defendantwill be setfree or held to account"); State v. Finch, 137Wn.2d 792, 841- 

## 42, 975 P.2d 967 (1999) (asking thejuryto actasthe conscienceofthe community is notimproperunless the intent is to inflamethejury).No. 70943-7-1/5 those knives, he didn't threaten to kill the police, he didn't threaten to kill her. Defense: Your Honor, I'm going to objectto the extentthat she's implying thatthere's evidence that he—she ever said those things. That's not in evidence and this is improper. Court: The objection is overruled.

Prosecutor: [Jimenez] said that she wasn't thinking clearly and she wasn't in her right mind when she gave her statement....



### Now in front of you, what she's trying to do is take back what she perceives to be the worstfor him: the knives, 

### the dragging, throwing on the bed, threatening to kill. She's smart. 

### Defense: Your Honor, again I'm going to object. This is misconduct at this point. 

### Court: The objection is overruled. The jurors are once again reminded thatthe lawyer's remarks during closing argument are not themselves evidence.



### Prosecutor: When she had justbeen through a terrifyingexperience, 

### when she was cryingthat night and she needed help, she talked aboutwhat happened. After he kept her inthe room, after he had taken the knives, after he threatened her life— 

### Defense: Objection, Your Honor. Again, facts not inevidence. 

### Court: The objection is overruled. The jurors are reminded that closing arguments and the statements made during closing argument are notthemselves evidence. 

### Priorto the juryreceiving the case, defense counsel moved for a mistrial 

### based on "my objections during the State's closing with respect to statements about
-5-No. 70943-7-1/6 

### the evidence, burdens of proof, and elements ofthe offense Ibelieve thatwere 

### misstated." In denying the motion, the court stated in part, [W]ithregard to the actual presentations about what the victim said or 

### did not say, Iwould incorporate my recitations
. . . where Iwanted the 

### record to [show] thatthe alleged victimJimenez's testimony was ambiguous. And she
.. . didn't rememberwhat she had previously said regarding knives, threats to kill, thattype of thing, which makes this subjectto argument. And itwas argued. The Court therefore overruled 

### most ofthe objections, but also took the opportunityto inoculate and remind thejurors thatwhat the attorneys say[ ] is not in and of itself 

### evidence. Moreover, this Courtwould make a finding thatfrom where I sat, Idid not infer any bad faith on behalfofthe Prosecuting attorney during closing arguments. . . .

.... The motion is therefore denied. The court's written instructions to thejury stated that "the lawyers' statements
are not evidence," thatthey "mustdisregard any remark, statement, or argumentthat is not supported by the evidence," that the only evidence before them was the testimony, stipulations, and exhibits, and that "[i]fevidence was not admitted
. .. , then you are not to consider it in reaching yourverdict." Thejury acquitted Bato of interfering with domestic violence reporting but found him guilty offourth degree assault, violation of a court order, and unlawful imprisonment, with a special verdict finding ofdomestic violence. He appeals. DECISION It is improperfor a prosecutorto make arguments based on facts not in 

### evidence.2 Citing this rule, Bato contends the trial court denied him a fair trial "[b]y

2State v. Dhaliwal. 150 Wn.2d 559, 577, 79 P.3d 432 (2003). -6-No. 70943-7-1/7 

### permitting the prosecutorto repeatedly referto facts outside the record, and 

### overrulingdefense objections to her doing so." We disagree. When, as in this case, alleged prosecutorial misconduct has been the subject 

### of a mistrial motion, we review the court's ruling forabuse of discretion.3 "[W]e give deference to the trialcourt's ruling because it is in the best position to evaluate whetherthe prosecutor's comment prejudiced the defendant."4 A trial court should grant a mistrial only if a defendant has been so prejudiced that nothing short of a new 

### trialcan ensure thatthe defendantwill be tried fairly.5 Considering the court's verbal and written instructions, the evidence, and the deference afforded the trial court's decision, we conclude the court did not abuse its discretion. Each ofthe prosecutor's challenged remarks included some facts that were in evidence, such as Bato's dragging Jimenez, throwing her on the bed, and preventing herfrom leaving, and some facts that were not, such as Bato's alleged threats to kill. Rather than parse out the proper and improper portions ofthe remarks

- something defense counsel failed to do in his objections

- the court chose instead to immediately and repeatedly remind thejurors that the lawyers' remarks were not evidence. The court's written instructions further emphasized that point, telling the
3 State v. Rodriguez. 146 Wn.2d 260, 269, 45 P.3d 541 (2002). Defense counsel expressly moved for a mistrial based on the prosecutor's "statements about the evidence," and the court's ruling referenced the prosecutor's remarks regarding the knives, threat to kill, and "that type ofthing." 4State v. Gregory. 158 Wn.2d 759, 841, 147 P.3d 1201 (2006). 5State v. Russell. 125 Wn.2d 24, 85, 882 P.2d 747 (1994).No. 70943-7-1/8 

### juryexactly what was and was not evidence. We presume thatjuries follow their instructions.6 In addition, the evidence strongly supports the court's conclusion that a mistrial was not warranted. Bato admitted that he pulled Jimenez's hands offthe doorknob, held her hands, and did not let her leave. He conceded that he violated the no-contact order. Jimenez admitted telling police that Bato dragged her, threw her on the bed, and prevented herfrom leaving. Testimony and photographs showed Jimenez's injuries, and othertestimony established that she sent herfriend a message during the incident asking for help. Taken together, the instructions, evidence, and deference we afford a mistrial decision convince us that the court did not abuse its discretion in concluding that the 

### alleged misconduct did not warrant a mistrial.7 Affirmed.8 FOR THE COURT:

6 State v. Klok. 99 Wn. App. 81, 85, 992 P.2d 1039 (2000) (citing State v. Lough. 125 Wn.2d 847, 864, 889 P.2d 487 (1995). 7 We note that even if some of Bato's prosecutorial misconduct claims were 

### not decided in the mistrial ruling, for the reasons stated above, he cannot meet his 

### burden of demonstrating a substantial likelihood that any misconduct affected the 

### jury's verdict. State v. Fisher. 165 Wn.2d 727, 747, 202 P.3d 937 (2009). 8Bato's motion for oral argument is denied.
-8-