IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON ,

Respondent ,

v. KEVIN EUGENE KELLY ,

Appellant

. ) ) ) ) ) ) ) ) ) No. 37172

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OPINION PUBLISHED IN PART

F EARING , J

. — Kevin Kelly (Kelly) appeals from his conviction for violating a no contact order when directing another person to text his wife, Julie Kelly (Julie) . Kelly assigns error to evidentiary rulings, the failure to deliver a jury unanimity instruction, and alleged prosecutorial m isconduct during jury summation. We find no error and affirm Kelly’s conviction.
FACTS We take the facts primarily from trial testimony. On April 16, 2019, during defendant Kevin Kelly’s appearance for a separate charge, the trial court entered a
domest ic violence no contact order prohibiting Ke lly from contacting , directly, indirectly, FILED OCTOBER 19, 2021 In the Office of the Clerk of Court WA State Court of Appeals Division IIINo. 37172

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2 or through others, his wife, Julie Kelly. This prosecution arises from the alleged violation of the order. After the trial court entered the no contact order, t he State of Washington confined Ke lly in the Spokane County Jail. Alexander Maravilla stayed in the same cell as Kelly

. While Kevin Kelly was jailed, Julie Kelly received multiple telephone calls from the Spokane County Jail. Julie either did not answer the ca ll, or, when she did answer, the caller disconnected immediately. Although Julie knew other people confined in the Spokane County Jail, she assumed that Kelly sought to contact her, as she did not expect anyone else from the jail to call her. Neither par ty explains why someone initiated the call when he or she disconnected immediately.
A t 8:32 a

. m . on May 14, 2019, Julie Webster received a telephone call from her son, Alexander Maravilla. Their call lasted fifteen minutes. The Spokane County Jail

reco rded the telephone conversation between Maravilla and Webster. On the recording, Maravilla states:

“ My cellie wants to know if you’d do him a favor. Text this number and see if his old lady will put ten bucks on his books or whatever and say that he lov es her. . . . I don’t know her name, you just say hi pumpkin, love and miss you, can you put ten bucks on my books. ”
R eport of Proceedings (R P ) at 10. During the call, Webster sent a text message to Julie Kelly, which read, “‘ Hi, Pumpkin. I love and mi ss you. Is there any way you can put $10 on my books? ’” RP at 218. Webster did not recognize Julie Kelly’s phone number,No. 37172

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3 nor did she know Kevin or Julie Kelly. Webster , as heard on the jail recording, affirm ed to her son, Maravilla, that she sent the t ext message to Julie Kelly. Julie Kelly believed that Kevin Kelly prompted the text message received from the unknown texter , because “he’s the only one that calls me ‘Punky ’ and I don’t know
any body else in the jail that would say I love you and I miss you.” RP at 172. Julie Kelly did not respond to Julie Webster’s text message. Julie Kelly understood th at the phrase “ ‘ putting money on the books ’ ” referred to depositing money in an inmate’s

account for the purpose of purchasing goods while incarcerate d. RP at 171. After receiving Julie Webster’s text message on May 14, 2019, Julie Kelly contacted a victim advocate. On May 16, 2019 , Office r Kaitlyn Anderson interviewed Julie Kelly in her home. Officer Anderson contacted Office r Alisha Nguyen, of th e Spokane Police Department, to investigate the phone calls and text message that Julie received. Officer Alisha Nguyen reviewed Spokane County Jail telephone records to identify the inmates who called Julie Kelly. At trial, Officer Nguyen explained tha t the jail assigns each inmate a unique pin number used to make phone calls from jail. Officer Nguyen discovered that Julie received ten telephone calls from the jail. None of the calls originated from Kevin Kelly’s pin number. Rather, three inmates’ pi n numbers had been used to contact Julie: Brendan Dalla, Anton Santrone, and Kelly’s cellmate, Alexander Maravilla. All three of these inmates were on the same cellblock as Kelly

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4 PROCEDURE The State of Washington charged Kevin Kelly with one count of felony violation of a no contact order. The State alleged that Kelly, with knowledge that a n order prohibited contact, contacted Julie Kelly on May 14, 2019. The State also alleged that Kelly had been convicted at least twice before of violating no conta ct orders. Kelly stipulated that he garnered at least two earlier convictions for violating court orders. Before trial, the State , pursuant to ER 801(d)(2)(v), sought to introduce statements uttered by Alexander Maravilla to his mother, Julie Webster , d uring the May 14, 2019 tele phone call . The State argued that Maravilla spoke in a role as a coconspirator in furtherance of a conspiracy with Kevin Kelly

. Alternatively, the State sought to introduce the directions of Maravilla to his mother for a nonhea rsay purpose, its effect on the listener, Webster. The State never sought to play the recorded telephone conversation for the jury. During argument on pretrial motions, the trial court commented that the State needed to establish by a preponderance of t he evidence that Alexander Maravilla knew that a no contact order prohibited Kevin Kelly from contacting his wife in order to show a conspiracy between the cellmates

. The court found that the State had not satisfied its burden and, therefore, ruled that t he coconspirator exception did not apply. Immediately after the trial court’s ruling denying admission of the contents of the May 14 telep hone call , the State moved for a trial continuance, so that it could subpoenaNo. 37172

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5 Alexander Maravilla and transport him from custody to testify. Kevin Kelly, through counsel , objected to a continuance because trial had been postponed before at the request of the State. Kelly further argued that the State should have planned in advance for the possibility that the trial co urt would deny admission of the telephone conversation. The
trial court denied the motion for a trial continuance . T he court commented that the State had made a strategic decision not to earlier subpoena Maravilla and that a continuance would prejudice K elly. During the pretrial motion hearing, the State also informed the trial court that it intended to ask Julie Webster , during trial testimony, why she sent the text message to Julie Kelly. The State remarked that Webster would answer that Alexander Ma ravilla asked her to send the message . The State argued that such testimony would not be offered for the truth of the out

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- court statement by Maravilla, but to show the statement’s effect on Webster. Over Kevin Kelly’s objection, the trial court ruled the
statement of Maravilla to his mother, during the May 14 telephone conversation , was admissible as nonhearsay. In his opening statement, Kevin Kelly , through counsel, asserted that Julie Kelly used her allegation that he violated the no

- contact order to improve her position in the couple’s upcoming divorce proceeding. Kelly highlighted that, shortly after the State charged him with a crime, his wife Julie filed for divorce.No. 37172

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6 At trial, the State called Julie Webster to testify. During direct examina tion, the following exchange occurred:

Q How did you get that number [Julie Kelly’s]? A My son was given it by somebody in the jail. MR. [JOSEPH] KUHLMAN [defense counsel]: Objection, Your Honor. THE COURT: Sustained. MR. KUHLMAN: Move to strike and request the jury to disregard. THE COURT: I will instruct the jury to disregard that last comment. Q (By Ms. [Hannah] Stearns [the State’s attorney]) Ms. Webster, did your son provide that phone number to you? A Yes. RP at 158. Julie Webster testif ied at trial that Maravilla asked her to send Julie Kelly th e text message. Webster did not repeat any of the other content from the May 14 phone conversation with her son other than her son giving her the cell number to text. The trial court excluded te stimony that someone in the jail had given Maravilla the cell phone number. Therefore, Webster did not testify that Kevin Kelly told her son to direct her to send the text message. During cross

- examination of Julie Webster , Kevin Kelly ’s counsel asked a bout Alexander Maravilla’s jail sentence. The State objected to the question on relevancy grounds. The trial court overruled the objection . Webster the n testified that Maravilla was serving five years, not for murder, but for another crime. Defense cou nsel probe d fu r ther: So what about the other charge that he was looking at, that big murder charge? What is he serving

—No. 37172

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7 RP at 161. The trial court then sustained the State’s previous relevancy objection. Counsel later asked Julie Webster, “Is this the effort of your son to work out a better deal for himself?” RP at 161. After Webster responded in the negative, the trial court sustained the State’s objection to the question

. During defense counsel’s cross - examination of Julie Kelly, counsel asked wh ether she contacted law enforcement after receiving the text message from Julie Webster. The following colloquy occurred:

A I called Jennifer (sic), my prosecuting attorney advocate. Q Okay. So then

— so you called the prosecutors and not even the poli ce? A I called my advocate, that’s what she’s there for. Q So you’re not worried. There’s nothing threatening in this message but

— A It’s from Kevin and Kevin’s incarcerated and Kevin had just choked me out

. MR. KUHLMAN: Excuse me, Your Honor, stri ke for nonrespensive [sic]

. THE COURT: Overruled. Q (By Mr. Kuhlman) There is nothing in this message

— he’s in custody? A Right. RP at 175

- 76 (emphasis added)

. T here after, defense counsel inquired about Kevin and Julie Kelly’s pending divorce procee ding : “And does a violation order charge help a divorce in your favor?”
RP at 177. The trial court sustained the State’s objection to this question. On the State’s redirect examination of Julie Kelly, the following exchangeNo. 37172

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8 occurred regarding her upcom ing divorce proceeding:

Q So why did you file for divorce? MR. KUHLMAN [defense counsel] Objection, Your Honor. This is unduly prejudicial and a relevance issue. THE COURT: Overruled. I’ll allow recross as well. MR. KUHLMAN: Thank you. Q (By Ms. S tearns [prosecuting attorney] ) Why did you file for divorce, Ms. Kelly? A Because Mr. Kelly is a drug addict

. RP at 179 (emphasis added)

. Defense counsel objected to Julie Kelly’s answer and moved the trial court to strike the answer. The trial court sustained Kevin Kelly’s objection and excused the jury. Outside of the jury’s presence, Kevin Kelly, through counsel, requested a curative instruction and a direction that Julie Kelly be prohibited from further testifying “along these lines.” RP at 180. The State mentioned that it had pre viously objected to any testimony concerning a divorce, but the trial court overruled its objection. The State ’s attorney continued:

Once Mr. Kuhlman [defense counsel] brought it up I think it’s appropriate the State respond. The door has been opened. The reason why she filed for divorce is appropriate since Mr. Kuhlman has insinuated that she filed for divorce in retaliation to make this case better. If he’s going to make those insinuations on the record, in openin g statement and in his cross of Ms. Kelly, it is extremely appropriate that the State be able to respond and Ms. Kelly be able to respond.
RP at 180.No. 37172

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9 The trial court agreed with the State that Kevin Kelly had opened the door as to Julie Kelly’s motives f

or seeking a divorce. Nevertheless, the court found Julie’s reference to drugs to be highly prejudicial under ER 404(b). The trial court re sustained Kelly’s objection to Julie’s comments about unlawful drugs and agreed to issue a curative instruction. T he State clarified that it did not expect Julie to mention any drug use and assured the court that Julie’s answer to the question of her reason for the divorce would relate to the couple’s relationship being unhealthy. When the jury returned, the trial co urt struck Julie’s statement about Kelly being a drug addict. Kelly elected not to further

cross - examine Julie

. Officer Kaitlyn Anderson testified to Julie Kelly’s demeanor when the officer interviewed her on May 16, 2019. Officer Anderson avowed that Juli e “was upset from the start, she was crying. It was hard for her to talk and tell me why I was there.” RP at
188. During cross

- examination by defense counsel, Officer Kaitlyn Anderson mentioned that she had not reviewed her body camera before testi fying at trial . The
f ollowing exchange then occurred:

Q And when you get there, when you show up two days later can you again describe the demeanor of Ms. Kelly? A I believe she was crying, she seemed upset, she didn’t

— it was hard for her to get into really what was going on.

. . . . Q . . . She’s putting on this big emotional display for you when you go to take a statement from her?No. 37172

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10

A Correct. RP at 193

. During a recess, Officer Kaitlyn Anderson reviewed her body cam era footage of her inte r view with Julie Kelly

. After recess, she testified as follows:

Q . . . So upon reviewing the body cam, what would be the correct representation of the demeanor of Ms. Kelly? A Very down, choked up. Q Was she calm? A I would say calm, a little ju mbled in her thoughts. Q She wasn’t crying, was she? A I remember watery

- eyed. Q But she wasn’t crying. A (No response.) Q Was she sobbing? A Not sobbing. Q Was she screaming? A No. Q Was she distraught? A No

. Q So any inference that we’re trying to give the jury that she was, in fact, distraught or having some grand emotional response, that would be untrue
. A Okay, correct

. RP at 210

- 11 (emphasis added). During Officer Alisha Nguyen’s testimony, defense counsel cross - examined her regarding her experience with domestic violence orders being used as leverage in family law matters: Q . . . Now, also, since you have so much experience with these, you’ve seen domestic violence orders can be used as leverage in family law hearings be fore?No. 37172

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11

MS. STEARNS [the State’s attorney] Objection, Your Honor, no relevance. THE COURT: Sustained. Q (By Mr. Kuhlman) Have you ever seen a pretrial no

- contact order used in an offensive manner instead of a defensive matter [sic]? A I don’t know what peoples’ outlook at it is if there’s a no

- contact order violation or not. Q So you’ve had no interest, you have never followed through, you have never worked with prosecutors to see if someone inappropriate is using an order? A It would be speculation on our part. I don’t know if that’s actually the case. Q So you just arrest them and you’re done? A Well, no , we follow through with the case. Q So you follow through. Have you ever seen that? A Some people might be going through a divorce or so mething. I can’t prove that. Q I am not asking you to prove it, Officer. I’m asking have you seen it? MS. STEARNS: Your Honor, I’ll object. It calls for speculation. THE COURT: Sustained.
RP at 220

- 21. During the trial court’s jury instruction con ference, Kevin Kelly voluntarily withdrew all of his proposed jury instructions except for an instruction about Kelly’s right not to testify and a missing witness instruction based on Alexander Maravilla’s
absence from trial. In response, t he State argued that Kelly failed to satisfy all of the elements required for a missing witness instruction. The State contended that the State did not control Maravilla, that Kelly could have subpoenaed Maravilla, and that the State did not intentionally fail to call M aravilla to the stand.No. 37172

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12 The trial court decided to deliver a missing witness instruction . The court concluded that the State controlled Alexander Maravilla and that Maravilla was a critical witness. In its closing argument, the State referred to Julie Webster’s testimony: That text message, the one we’ve been talking about this whole trial, was sent f ro m Ms. Webster’s phone to Ms. Kelly’s phone. Ms. Webster sent that message at the direction of her son, Alexander Maravilla. While Ms. Webster was on t he phone with her son on May 14th, 2019, she sent the message to Julie Kelly. While Ms. Webster was on the phone with her son, Mr. Maravilla, he was cellmates with Kevin Kelly. You heard from Ms. Webster that the phone number, Ms. Kelly’s phone number, c ame to her from her son. She didn’t know that number; she never met Ms. Kelly. Mr. Kelly’s cellmate gave his mother Ms. Kelly’s phone number

. On that day of May 14th, 2019, Mr. Kelly and Mr. Maravilla were cellmates on 5 West, Cell 16. They were cellma tes the day the violation of no - contact order occurred. RP at 292 (emphasis added)

. Kevin Kelly did not object to this portion of the State’s argument. During closing argument, t he State discussed the ten phone calls that Julie Kelly received from the Spokane County jail:

Prior to that and during that period, Ms. Kelly received ten phone calls from the jail, all of which were from 5 West, all of which were from the pin numbers from persons residing on the same floor as Mr. Kelly. Those calls included calls from Mr. Maravilla ’ s pin number as well as Mr. Dalla and Mr. Santrone. Ms. Kelly testified that she did not know those people. Officer Nguyen testified about her role in the domestic violence unit with the Spokane Police Department, that this tac tic, using other peoples ’ pin numbers to hide your identity is very common in domestic violenceNo. 37172

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13 cases. That an inmate will use somebody else ’ s pin number so that their name is not associated with the phone call that violates the no

- contact order. She f

urther testified that one of the persons whose pin number was used, Mr. Dalla, is known to law enforcement for doing this very thing. He ’ s given his pin number out previously for the same reason. RP at 292

- 93. The State analyzed for the jury the elements of the c harged c rime. The State’s attorney commented: “ Here Ms. Kelly received a text message that she knows is from her husband, Kevin Kelly.” RP at 298. The State then highlighted the ten phone calls Kelly allegedly made to try to contact Julie . Sta te’s counsel added: “when he couldn’t get through to her by phone, he resorted to a text message.” RP at 299. During closing, the State examined Alexander Maravilla’s and Julie Kelly’s motivations: What do we not have as evidence? We do not have a motiv e from Mr. Maravilla. There is no motivation in evidence or for why he would or would not be here. That’s not evidence, you cannot consider it. We also don’t have a motive for Ms. Kelly. There’s no motive for her to lie, to make up accusations, to come in here and testify falsely. There’s no evidence. That cannot be considered.
RP at 321. The State reviewed, for the jury, Officer Kaitlyn Anderson’s testimony regarding Julie Kelly’s demeanor when she reported the text message from Julie Webster:

An d she [Officer Anderson] testified initially that she [Julie Kelly] was upset and distraught, and after watching her body camera she testified again that Ms. Kelly was upset and distraught

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14

MR. KUHLMAN: Objection, Your Honor. Mischaracterization of evide nce. THE COURT: Overruled. MS. STEARNS: The officer clearly said she had watery eyes, she was upset, she was anxious, she was crying. Upset and distraught . There’s no change in demeanor, there’s no grand elaborate plan to frame Mr. Kelly. RP at 325 (e mphasis added). The trial court instructed the jury that, to convict Kevin Kelly, the State needed to prove beyond a reasonable doubt that “on or about May 14, 2019,” with knowledge of the
existence of a no

- contact order, Kelly violated the order. Clerk’ s Papers ( CP ) at 41. T he jury found Kevin Kelly guilty of felony violation of a no

- contact order against a member of his family or household.
LAW AND ANALYSIS On appeal, Kevin Kelly assigns six trial errors. First, t he trial court erred when admitting Alexander Maravilla’s out

- of

- court statement to his mother to show its effect on the listener when the State primarily used the statement to prove that Maravilla directed his mother to contact Julie Kelly. Second, the trial court interfered in Kelly’s

co nstitutional right to present a defense by prohibiting him from questioning Julie Webster , Julie Kelly , and Alisha Nguyen about the motive behind his accusers’ allegations and precluding questions that would undermine the accusers’ credibility. Third, the trial court thereby also interfered in K elly’s right to effective ly argue, during closing, the lack of credibility of his accusers, which interference also violated Kelly’sNo. 37172

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15 right to present a defense. Fourth, the trial court erred by refusing to strike J ulie Kelly’s irrelevant, prejudicial, and nonresponsive answer regarding Kelly’s alleged domestic violence. Fifth, the prosecuting attorney committed misconduct during closing argument by arguing facts not in evidence and vouching for the credibility of J ulie. Sixth the trial court erred when failing to deliver a jury unanimity instruction. The State cross

- appeals. The State assigns error to the trial court’s refusal to permit the playing of the jail recording of the conversation between Alexander Mara villa and Julie Webster

. The State claims the coconspirator rule authorized the playing. Since we affirm the conviction of Kevin Kelly, we do not address the cross

- appeal.

Alexander Maravilla’s Directions to his Mother Issue 1: Whether testimony from J ulie Webster that her son directed her to contact Julie Kelly constituted inadmissible hearsay? Answer 1: No. Kevin Kelly argues that the trial court erroneously admitted testimony from Julie Webster that her son, Alexander Maravilla, told her by phone to text Julie Kelly

. Kelly d oes not object to the State’s closing argument, during which the prosecutor argued that Kelly asked Alexander Maravilla to direct Maravilla’s mother to text Julie. The State responds that it introduced Maravilla’s statement a s evidence to explain why Julie Webster sent the tex t message to Julie Kelly, a non hearsay purpose. Kelly asserts that, while the State professed to introduce the statement to show the effect on Webster, theNo. 37172

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16 listener, the State offered the statement to pr ove the truth of the matter asserted

— that Maravilla directed his mother to text Julie Kelly

. We decide this issue on a related, but distinct , basis than argued by the State. The
C ourt of A ppeals m ay uphold the trial court on a proper basis even though t he trial court did not rely on that particular theory. State v. Heiner , 29 Wn. App. 193, 198, 627 P.2d 983 (1981) . Because the challenged remarks of Alexander Maravilla to his mother w ere in the nature of a request, the comment was not hearsay. Thus, w e need not assess the State’s reason for introducing the testimony.
T his court reviews whether a statement is hearsay de novo. State v. Edwards , 131 Wn. App. 611, 614, 128 P.3d 631 (2006). Hearsay is generally inadmissible, except as permitted by eviden ce rules, other court rules, or by statute. ER 802.

“ Hearsay ” is a statement , other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. ER 801(c) (emphasis added)

. I n turn,

[A] “ statement ” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. ER 801(a). Under the hearsay rule, a “ statement ” is “ a declaration of matters of fact. ” Eagle v. Unempl oyment Comp ensation Board of Review , 659 A.2d 60, 62 (Pa. Commw. Ct. 1995)

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17 Pursuant to ER 801(a), a nonassertive statement does not constitute hearsay. State v. Modest , 88 Wn. App. 239, 249, 944 P.2d 417 (1997) ; State v. Collins , 76 Wn. App. 496, 498

- 9 9, 886 P.2d 243 (1995)

. For example , an inquiry is not hearsay because the questioner is not asserting a fact or a belief. State v. Collins , 76 Wn. App. 496, 498

- 99 (1995). In State v. Collins , a prosecution for possession of cocaine with the intent to deliver, this court affirmed the admission of a police officer’s testimony that he answered the phone at the defendant’s apartment and callers asked for the defendant by name. The truth of the name of the defendant was irrelevant , only that callers mentio ned his name.
W hen we speak of proving the truth of the matter asserted we can only be speaking of a factual assertion, not an order or a command, not a question or a request. Eagle v. Unemployment Comp ensation Board of Review , 659 A.2d 60, 62 (Pa. Comm w. Ct. 1995)

. T he hearsay rule does not forbid the introduction of evidence that

a request has been made when the making of the request is significant irrespective of the truth or falsity of its content. Taylor v. Centennial Bowl, Inc. , 65 Cal. 2d 114, 1 25, 416 P.2d 793, 52 Cal. Rptr. 561 (1966)

. In a handicap discrimination case, the employee’s spouse’s request for an accommodation did not constitute hearsay. Adams v. Crestwood Med ical Center , 504 F. Supp. 3d 1263 (N.D. Ala. 2020) . In an unemployment compensation case, directions by the work manager to the employee also did not constitute hearsay. Eagle v. Unemployment Comp ensation Board of Review , 659 A.2d 60, 62 (Pa. Commw. Ct.No. 37172

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18 1995) . In Taylor v. Centennial Bowl, Inc. , 65 Cal. 2nd 114, 125 (1966) , a victim’s request for police assistance was ruled as admissible. Finally, i n Texas Employment
Insurance Ass ociation v. Fish , 266 S.W.2d 435 (Tex. Civ. App. 1954), a worker compensation claim, the court held admissible, as not hearsay, the employee’s te stimony that his supervisor told him to quit his job. Alexander Maravilla’s direction to his mother to contact Julie Kelly was assertive in the nature of being bossy or forward. But, the direction was not assertive in the sense of declaring a fact or be lief. The truthfulness of Alexander Maravilla’s request was irrelevant. The request was relevant to the prosecution simply by the fact that Maravilla uttered the entreaty. A majority of th is panel has determined that only the foregoing portion of thi s opinion will be printed in the Washington Appellate Reports . Therefore, it is ordered that the remainder of this opinion , having no precedential value , shall be filed for public record pursuant to RCW 2.06.040.

Right to a Defense and Right to a Summatio n Kevin Kelly argues that the trial court violated his right to present a defense and his right to summation by prohibiting him from questioning : (1) Julie Kelly regarding her motivation to improve her position in the couples’ divorce proceeding, (2) Offic er Alisha Nguyen regarding her experience with people who use no

- contact orders t o gain leverageNo. 37172

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19 in family law proceedings, and (3) Julie Webster regarding Alexander Maravilla’s potential motivation behind asking Webster to send a text message to Julie.
Th e Sixth Amendment to the United Stated Constitution and article I, section 22 of the Washington State Constitution guarantee a criminal defendant’s right to present a
defense. State v. Strizheus , 163 Wn. App. 820, 829

- 30, 262 P.3d 100 (2011). Defendants do not, however, possess a constitutional right to present irrelevant evidence. State v.
Jones , 168 Wn.2d 713, 720, 230 P.3d 576 (2010). The proponent of the evidence bears the burden of showing relevance and materiality of the testimony. State v. Pache co , 107 Wn.2d 59, 67, 726 P.2d 981 (1986). “Evidence is relevant if it has a tendency to make the existence of any fact of consequence more probable or less probable than it would be without the evidence.” State v. Darden , 145 Wn.2d 612, 624, 41 P.3d 118 9 (2002). This court usually reviews a trial court’s evidentiary rulings based on relevance for abuse of discretion. State v. Clark , 187 Wn.2d 641, 648, 389 P

. 3d 462 (2017). A trial court abuses its discretion when its decision is manifestly unreasonab le, its discretion is exercised on untenable grounds or for untenable reasons, or if the court applie s the wrong legal standard. T.S. v. Boy Scouts of America , 157 Wn.2d 416, 423

- 24, 138 P.3d 1053 (2006). But i f the trial court excluded relevant defense evidence, then this court reviews de novo whether the exclusion violated the defendant’s right to present a defense. State v. Clark , 187 Wn.2d at 648

- 49. Whether excluding testimony violates a defendant’s right to present a defense “depends on whether th e omitted evidence evaluated in the contextNo. 37172

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20 of the entire record, creates a reasonable doubt that did not otherwise exist.” State v. Duarte Vela , 200 Wn. App. 306, 326, 402 P. 3 d 281 (2017). The constitutional right to present a defense includes a right to confront and cross

examine adverse witnesses. U.S. C ONST . amend. VI; C ONST . art. I, § 22; State v. Jones , 168 Wn.2d 713, 720 (2010). In turn, the constitutional right to cross

- examine a witness extends to the right to expose a witness’ motivation in testifying

. Davis v. Alaska , 415 U.S. 308, 316

- 17, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). A criminal defendant deserves extra latitude in cross

- examination to show motive or credibility, especially with regards to a key prosecution witness. State v. Y ork , 28 Wn. App. 33, 36, 621 P.2d 784 (198 0 ). Issue 2: Whether the trial court impeded Kevin Kelly ’s constitutional right to present a defense when the trial court precluded him from cross

- examining Julie Kelly about her motive to improve her position in d ivorce proceedings?
Answer 2 : Yes. We separately address now the three times about which Kevin Kelly complains the trial court interfered in his cross

- examining witnesses. F irst, Kevin Kelly contends that the trial court improperly forbade him fro m questioning Julie Kelly as to her motivation for seeking a divorce. Kelly sought to elicit testimony that Julie used Kelly’s alleged violation of the no

- contact order to better position herself in the couples’ upcoming divorce proceeding.No. 37172

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21 The State re sponds that the trial court permitted Kevin Kelly to further question Julie about this motivation. According to the State, Kelly, after gaining permission, tactically and wisely chose not to recross

- examine Julie because question s about her

reasons for se eking a divorce could have elicited testimony about the couple’s past history of domestic violence. In reply, Kelly maintains that the trial court only allowed the State, not him, to further inquire as to Julie’s motives for the divorce. He contends
that , regardless, Julie’s motive for obtaining a divorce differs from her motive for alleging that he violated the no

- contact order. During his opening statement, Kevin Kelly told the jury that Julie used the alleged violation of the no

- contact order to bols ter her position in their upcoming divorce proceeding. Kelly noted that Julie almost immediately filed for divorce after the State charged him with the pending crime. When Kelly’s counsel cross - examined Julie, counsel inquired : “And does a violation orde r charge help a divorce in your favor?” RP at 177. The State objected and the trial court sustained the objection

. During the State’s redirect examination of Julie Kelly, the following exchange occurred regarding the upcoming divorce proceeding:

Q So why did you file for divorce? MR. KUHLMAN [defense counsel] : Objection, Your Honor. This is unduly prejudicial and a relevance issue. THE COURT: Overruled. I’ll allow recross as well

. MR. KUHLMAN: Thank you. Q (By Ms. Stearns [prosecuting attorney] ) Why did you file for divorce, Ms. Kelly?No. 37172

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22 RP at 179 (emphasis added). Outside of the jury’s presence, the State argued that Kevin Kelly’s question insinuated that Julie held an ulterior motive for claiming Kelly contacted her, and, in fairness, the Stat e should be allowed to ask Julie about her reasons for seeking a divorce. The trial court agreed that Kelly had opened the door to th is line of questioning and allowed the State’s redirect examination to continue. Kevin Kelly mistakenly maintains that the trial court allowed only the State to elicit testimony regarding Julie Kelly’s motives for seeking a divorce. The trial court, in response to Kelly’s objection to the State’s asking Julie about the divorce, ruled that it would “allow recross as well.” RP at 179. The trial court expressly permitted Kevin Kelly to ask Julie questions as to her motives for divorce. After the State’s questioning, Kelly elected not to recross

- examine Julie. He stated, “No further cross, Your Honor.” CP at 86. We agree , however, with Kevin Kelly that Julie Kelly’s motive for obtaining a divorce differs from h er motive for alleging that he violated the no

- contact order. Though the trial court did not specify the limitations for recross

- examination, the trial
court never reexamined its ruling precluding questioning Julie about whether her assertions bettered her interests in the marital dissolution proceeding. As Kelly asserts, Julie Kelly’s motivations for accusing Kelly of a crime constitute d relevant evidence.
State v. York , 28 Wn. App. 33, 36 (198 0 ).No. 37172

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23 Issue 3: Whether the interference with Kevin Kelly’s right to cross

- examine Julie Kelly with regard to her motivations behind claiming Kelly contacted her constitutes harmless error? Answer 3: Yes. Whether th e trial court violated Kevin Kelly’s right to cross

- examine “depends on whether the omitted evidence evaluated in the context of the entire record, creates a reasonable doubt that did not otherwise exist.” State v. Duarte Vela , 200 Wn. App. 306, 326 (2017 ). The State contends that Kelly’s claim that Julie Kelly had ulterior motives in bringing the allegations in this prosecution would not have created a new doubt as to his guilt. The State asserts that Kelly’s theory of ulterior motives does not explain away or discount the other evidence against him. We agree.
K evin Kelly intended to question Julie Kelly regarding her motive to fabricate her allegations that he violated the no

- contact order against him. The record does not reinforce Kelly’s defense t heory. Julie Webster sent Julie Kelly a text message, when Webster neither knew the Kellys nor recognized Julie Kelly’s phone number. Similarly, Julie Kelly did not recognize Webster’s phone number, nor did she know Webster. I n Webster’s text message, s he referred to Julie as “Pumpkin,” which is Kelly’s affectionate nickname for his wife

. Webster sent the text message while on the phone with her son, Alexander Maravilla, and while Maravilla shared a cell with Kelly. The record, as aNo. 37172

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24 whole, overwhelming ly supports the jury’s verdict. Julie Kelly’s excluded testimony would not have created a new doubt as to Kelly’s guilt

. Issue 4: Whether the trial court impeded Kevin Kelly ’s constitutional right to present a defense when the trial court precluded him from cross

- examining Officer Alisha Nguyen about the possibility that an allegation of violating a no

- contact order could benefit the defendant’s spouse during a divorce proceeding? Answer 4: No, because Officer Nguyen answered the posed questions. Kevin Kelly also argues that the trial court erroneously prohibited him from questioning Officer Alisha Nguyen as to how a no

- contact order violation could benefit Julie Kelly in seeking a divorce. He contends that asking Officer Nguyen about her past
exp erience in dealing with domestic violence allegations did not call for speculation. The State responds that Kelly’s line of questioning both called for speculation and had been asked and answered. During defense counsel’s cross - examination of Officer Al isha Nguyen, he asked her about her experience with domestic violence orders being used to leverage family law
matters: Q . . . Now, also, since you have so much experience with these, you’ve seen domestic violence orders can be used as leverage in fam ily law hearings before? MS. STEARNS: Objection, Your Honor, no relevance. THE COURT: Sustained. Q (By Mr. Kuhlman) Have you ever seen a pretrial no

- contact order used in an offensive manner instead of a defensive matter [sic]?No. 37172

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25

A I don’t know what pe oples’ outlook at it is if there’s a no

- contact order violation or not. Q So you’ve had no interest, you have never followed through, you have never worked with prosecutors to see if someone inappropriate is using an order? A It would be speculation on our part. I don’t know if that’s actually the case. Q So you just arrest them and you’re done? A Well, no, we follow through with the case. Q So you follow through. Have you ever seen that? A Some people might be going through a divorce or somet hing. I can’t prove that. Q I am not asking you to prove it, Officer. I’m asking have you seen it? MS. STEARNS: Your Honor, I’ll object. It calls for speculation. THE COURT: Sustained.
RP at 220

- 21. Kevin Kelly’s questioning related to his theor y that Julie Kelly alleged he violated the no

- contact order in order to benefit herself in the couple’s upcoming divorce proceeding. As the State asserts, Officer Nguyen responded that she did not know whether people she dealt with were going through a di vorce. She also indicated that any answer she would give regarding the offensive use of no

- contact order violations would e speculation on her part. Presumably, Nguyen deemed any answers to be speculative because she lacked personal knowledge that indivi duals offensively utilize no

- contact orders. This court may affirm a lower court’s ruling on any grounds adeq uately supported in the record. State v. Costich , 152 Wn.2d 463, 477, 98 P.3d 795 (2004). The trial courtNo. 37172

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State v. Kel ly

26 sustained the State’s objection to Ke vin Kelly’s questioning on speculation grounds. Nevertheless, the record supports that Officer Alisha Nguyen had answered defense counsel’s questions before counsel asked his final question, “I’m asking have you seen it?” RP at 221. Thus, we affirm the trial court’s ruling on the basis that Officer Alisha Nguyen answered the questions. Issue 5: Whether the trial court impeded Kevin Kelly ’s constitutional right to present a defense when the trial court precluded him from cross

- examining Julie Webster about a possible motive for Alexander Maravilla to set Kelly up for criminal charges?
Answer 5 : No. Finally, Kevin Kelly asserts that the trial court wrongfully prohibited him from eliciting testimony from Julie Webster concerning a potential motive b ehind Alexander Maravilla’s allegations. Kelly argues that ER 806 permitted him to attack Maravilla’s credibility , because the State introduced Maravilla’s statement to prove the truth of the
matter asserted

— that Maravilla gave Julie Kelly’s phone number to his mother

. The State responds that Alexander Maravilla’s credibility had no bearing on this case, because he did not testify and because the State admitted his statement to his mother only for the effect on the listener. The State contends that ER 8 06 did not apply in this case, because Maravilla’s statement was offered for a nonhearsay purpose : to explain why Julie Webster sent the text message to Julie Kelly

. Finally, the State argues that,No. 37172

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27 according to Kevin Kelly ’s defense counsel , Maravilla had been sentenced and would not “play ball with the State.” RP at 246. Kevin Kelly replies that the State’s reliance on counsel’s statement that Alexander Maravilla had already been sentenced is misplaced. Kelly highlights that his counsel
made this sta tement in response to the State’s argument opposing the missing witness instruction. Kelly argues that, at the time Maravilla contacted his mother, he may have still been trying to reach a deal with the State, given that he was in jail, not prison.
ER 8 06 governs when a declarant’s credibility may be attacked or supported. The rule declares, in relevant part:

When a hearsay statement , or a statement defined in rule 801(d)(2)(iii), (iv), or (v), has been admitted in evidence, the credibility of the decl arant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purpose s if declarant had testified as a witness. (Emphasis added.) Thus, ER 806 does not apply to statements offered for a non hearsay
purpose as argued by the State

. Of course, we have already ruled that Alexander Maravilla’s request to his mother did not constitute hearsay. Therefore, ER 806 does not control. The trial court did not err in precluding testimony possibly impeaching Maravilla. Issue 6: Whether the trial court impeded Kevin Kelly ’s constitutional right to present a defense when the trial court’s evidentiary rulings precluded Kelly from certain arguments during summation?No. 37172

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28 Answer 6: No, because the trial court only committed one error that was harmless. Kevin Kelly contends that the trial court’s three alleged errors , outlined above, also prohibited him from fully exercising his right to summation. Kelly asserts that, by disallowing him f

ro m eliciting testimony relating to his accusers’ motivations, he could only meekly suggest to the jury , during closing argument, that it should question Julie Kelly’s and Alexander Maravilla’s motives. He argues that, while he was able to question their motivations during closing, he could not point to testimony to strengthen his argument or make supported inferences. The State responds that the trial court did not limit Kevin Kelly’s scope of argument during closing. The State argues that the trial court simply excluded evidence, which did not prohibit Kelly from making inferences that either Julie Kelly or Alexander Maravilla lacked credibility due to ulterior mot ives. The Sixth Amendment right to counsel includes the right to make a closing summation to the jury. U.S. C ONST . amend. VI; C ONST . art. 1, § 22; State v. Frost , 160 Wn.2d 765, 772

- 73, 161 P.3d 361 (2007). Thus, when a trial court unduly limits the scope of defense counsel’s closing argument, the court may infringe on a defendant’s Sixth Amendment right to counsel. Herring v. New York , 422 U.S. 853, 863, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975). Nevertheless, a presiding judge enjoys great latitude in controlling the duration and limiting t he scope of closing summations. Herring v. New York , 422 U.S. 853, 86 2 (1975).No. 37172

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State v. Kel ly

29 We agree with the State. The trial court did not limit the scope of Kevin Kelly’s closing argument. The trial court’s limiting of Kelly’s ability to examine witnesses is
unrelated to his right to summation.

Julie Kelly Testimony of Domestic Violence Kevin K elly contends that the trial court should have stricken Julie Kelly’s
response , during cross

- examination , that Kelly choked her because the response was irrelevant, unduly prejudicial , and nonresponsive to the pending question

. Kelly further argues that J ulie’s comment related to earlier alleged acts of domestic violence was admissible under ER 404(b) only for limited purposes

. Kelly asserts that the trial court failed to engage in ER 404(b)’s analysis, and , because past acts of domestic violence are part icularly damning, th e trial court committed prejudicial, reversible error. The State responds that , while Kevin Kelly objected to Julie Kelly’s comment of violence on the ground that Julie was nonresponsive, he did not object on relevance or prejudice gr ounds. Thus, he failed to preserve any objection based on irrelevance or prejudice. T he State further asserts that t he trial court did not abuse its discretion in overruling Kelly’s nonresponsive objection. Issue 7: Whether Kevin Kelly preserved the ar guments that Julie Kelly’s comments on domestic violence were inadmissible as irrelevant and unduly prejudicial under ER 404(b) and ER 403?
Answer 7: No.No. 37172

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30 During Kevin Kelly’s counsel ’s cross - examination of Julie Kelly, counsel asked whether Julie had con tacted law enforcement after receiving the text message from Julie Webster. The following exchange then transpired :

A I called Jennifer (sic), my prosecuting attorney advocate. Q Okay. So then

— so you called the prosecutors and not even the police? A I called my advocate, that’s what she’s there for. Q So you’re not worried. There’s nothing threatening in this message but

— A It’s from Kevin and Kevin’s incarcerated and Kevin had just choked me out

. MR. [JOSEPH] KUHLMAN: Excuse me, Your Honor, s trike for nonrespensiveness. THE COURT: Overruled. Q (By Mr. Kuhlman) There is nothing in this message

— he’s in custody? A Right. RP at 175

- 76 (emphasis added). RAP 2.5(a) governs errors raised initially on appeal, and states, in relevant part: The appellate court may refuse to review any claim of error which was not raised in the trial court. However, a party may raise the following claimed errors for the first time in the appellate court: (1) lack of trial court jurisdiction, (2) failure t o es tablish facts upon which relief can be granted, and (3) manifest error affecting a constitutional right. A failure to object t o an e rror at trial robs the trial court of the opportunity to correct the error and avoid a retrial. State v. Powell , 166 Wn.2 d 73, 82, 206 P. 3 d 321 (2009). This court will not reverse the trial court’s decision to admit evidence whe n the trial court rejected the specific ground upon which the defendant objected to the evidenceNo. 37172

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State v. Kel ly

31 and then, on appeal, the defendant argues for rever sal based on an evidentiary rule not raised at trial. State v. Powell , 166 Wn.2d 73 at 82. Stated differently, a party may only assign error in the appellate court on the specific ground of the evidentiary objection made at trial. State v. Koepke , 47 Wn . App. 897, 911, 738 P.2d 295 (1987). Kevin Kelly relies on Lun d berg v. Baumgartner , 5 Wn.2d 619, 106 P.2d 566 (1940) in support of an argument that he can raise new grounds for exclusion on appeal. There the Washington Supreme Court relied on 26 R.C.L. 1 051, § 57, the former rule governing general objections. The rule declared, in relevant part:

There may be cases, of course, where the incompetency of the evidence is so palpable that a mere general objection will be deemed sufficient . . . . Again, wher e the portion of the evidence objected to is clearly pointed out, and its illegality is apparent on its face, then the objection must be allowed . Indeed, the very reason why the court may disregard objections to evidence, when the particular grounds of th e objection are not stated, is that the court would have to cast about or look for the grounds on which the objection was made. But when the evidence objected to is clearly designated, and on its face it is illegal, without inquiry into any fact aside fro m the evidence itself, the objection cannot be disregarded merely because no specific ground of objection is stated

. Lun d berg v. Baumgartner , 5 Wn.2d at 626

- 27 (emphasis added). Kelly argues that, pursuant to Lun d

berg , he need not have objected on releva nce or prejudice grounds in response to Julie Kelly’s response because her response was clearly irrelevant and prejudicial. He does not explain why his competent trial counsel did not object on such ringing bases.No. 37172

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State v. Kel ly

32 As the State spotlights, Lun d berg v. Ba umgartner predates the Rules of Appellate Procedure ( RAP ) , adopted in 1976. State v. Robinson , 153 Wn.2d 689, 695, 107 P.3d 90 (2005). In State v. Robinson , the state high court held that the rules governing personal restraint petitions , RAP 16.3

- .15, “s uperseded the relief previously available under former CrR 7.7” and refused to apply former CrR 7.7. State v. Robinson , 153 W n.2d at 695

- 96. Accordingly, the RAPs generally supersede former rules. Kevin Kelly replies that at least two decisions stand for the proposition that courts sometimes rely on principles announced before the adoption of the RAPs. Harper v.
State , 192 Wn.2d 328, 429 P.3d 1071 (2018) ; State v. Saltarelli , 98 Wn.2d 358, 655 P.2d
69 7 (1982) . We refuse to follow this presumed propositi on because recent Washington decisions unanimously hold that a reviewing court will not reverse a trial court’s evidentiary decision when a defendant objects on appeal to the decision on an evidentiary ground not raise d before the trial court. State v. Po well , 166 Wn.2d 73, 82 (2009 ); State v. Koepke , 47 Wn. App. 897, 911 (1987). Furthermore, RAP 2.5(a) allows this court to refuse to hear new arguments raised for the first time on appeal

. Issue 8: Whether the trial court erred when denying Kevin Kelly’s request to strike Julie Kelly’s answer as nonresponsive?
Answer 8 : No. In answering the next issue, we note that Kevin Kelly’ s defense counsel, during the challenged exchange with Julie Kelly, in part posited statements as opposed to askingNo. 37172

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State v. Kel ly

33 question s , not that there is anything wrong with that. Nevertheless, defense counsel, through his comments wanted the jury to conclude that the text sent to Julie did not threaten her. Kelly ’s counsel want ed to establish that Julie first called he r advocate, not
l aw enforcement . When positing this statement and when asking leading questions, defense counsel opened the door for Julie to explain why the text frightened her, including the background of domestic violence. If Julie had not mentioned the choking in res ponse to defense counsel’s question, we suspect the State would have asked Julie to explain her fright , and the trial court would have permitted the question because of the open door. This court reviews a trial court’s evidentiary rulings for abuse of di scretion

. Peralta v. State , 187 Wn.2d 888, 894, 389 P.3d 596 (2017). A trial court abuses its discretion when its decision is manifestly unreasonable, its discretion is exercised on untenable grounds or for untenable reasons, or if the court applied the wrong legal standard. T.S. v. Boy Scouts of America , 157 Wn.2d 416, 423

- 24 (2006). The State relies on Henry v. Navy Yard Route , 94 W ash. 526, 162 P.2d 584 (1917). In that case, the Washington Supreme Court held that, if a witness anticipates the quest ion he or she will be asked on examination and answers it, the examiner cannot challenge the answer as nonresponsive:

While a cross

- examiner is not so far at the mercy of a designing witness that he must accept every voluntary statement made by such a wit ness whether or not it is relevant or responsive to his questions, yet heNo. 37172

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State v. Kel ly

34 cannot complain if the witness anticipates him and answers concerning the matter of which he is evidently inquiring before the direct interrogation is put to him

. Henry v. Navy Yard Route , 94 W ash. at 529 (emphasis added). We conclude that Julie Kelly similarly anticipated questions that would be asked, if not a question that had already been asked. The trial court did not abuse its discretion when overruling the objection of nonres ponsiveness.

Prosecutorial Misconduct d uring Closing Issue 9: Whether the State’s attorney committed misconduct by arguing facts not in evidence? Answer 9: Yes, but not to the prejudice of Kevin Kelly. Kevin Kelly argues that the prosecutor committe d misconduct during closing by arguing facts inconsistent with the evidence to vouch for the credibility of Julie Kelly. Specifically, Kelly challenges the prosecutor’s statement that Officer Kaitlyn Anderson testified, after reviewing her body camera foo tage, that Julie appeared upset and distraught during their interaction. Kelly maintains that the State’s argument mischaracterizes Officer Anderson’s testimony, because Officer Anderson testified that Julie was not distraught during their interaction. K elly contends that, by falsely retelling Officer Anderson’s testimony, the State conveyed to the jury that it had no reason to doubt that he indirectly sent Julie the text message. The State responds that the evidenceNo. 37172

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State v. Kel ly

35 supported its counsel’s remarks about Julie’s demeanor during her interview with Officer Kaitlyn Anderson. To prove prosecutorial misconduct, a defendant must show the prosecuting attorney’s conduct was both improper and prejudicial. State v. Fisher , 165 Wn.2d 727, 747 (2009). In closing argument, the prosecuting attorney enjoys a wide latitude in drawing and expressing reasonable inferences from the evidence. State v. Hoffman , 116 Wn.2d 51, 94

- 95, 804 P.2d 577 (1991). But a prosecutor commits misconduct by urging the jury to decide a ca se based on evidence outside the record. State v. Pierce , 169 Wn. App. 533, 553, 28 0 P.3d 1158 (2012). A prosecutor also commits misconduct when improperly vouching for a witness. State v. Ish , 170 Wn.2d 189, 196, 241 P.3d 389 (2010). A prosecutor impr operly vouches when indicating that evidence not presented at trial supports the witness’s testimony. State v. Ish , 170 Wn.2d 189, 196 (2010)

. A prosecutor’s misconduct causes prejudice when there exists a substantial likelihood that the conduct affecte d the jury’s verdict. State v. Emery , 174 Wn.2d 741,
760 , 278 P.3d 653 (2012). We review the prejudicial effect of the prosecutor’s comments in the context of the State’s total argument. State v. McKenzie , 157 Wn.2d 44, 52, 134 P.3d 221 (2006). At tri al, Officer Kaitlyn Anderson testified, in response to the State’s questioning, as to Julie Kelly’s demeanor when she interviewed Julie on May 16, 2019. Officer Anderson first noted that Julie “was upset from the start, she was crying. It was hard forNo. 37172

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State v. Kel ly

36 he r to talk and tell me why I was there.” RP at 188. Later, during cross

- examination, Officer Anderson testified that Julie encountered difficulty communicating because of her crying and “big emotional display.” RP at 193. During a recess, Officer Kaitly n Anderson reviewed her body camera footage of her interaction with Julie Kelly. After recess, Anderson testified as follows:

Q . . . So upon reviewing the body cam, what would be the correct representation of the demeanor of Ms. Kelly? A Very down, choked up. Q Was she calm? A I would say calm, a little jumbled in her thoughts. Q She wasn’t crying, was she? A I remember watery

- eyed. Q But she wasn’t crying. A (No response.) Q Was she sobbing? A Not sobbing. Q Was she screaming? A No. Q Was she distraught? A No

. Q So any inference that we’re trying to give the jury that she was, in fact, distraught or having some grand emotional response, that would be untrue. A Okay, correct

. RP at 210

- 11 (emphasis added). During jury sum mation, the State ’s attorney mentioned Officer Kaitlyn Anderson’s testimony regarding Julie Kelly’s demeanor:

And she [Officer Anderson] testified initially that she [Julie Kelly] was upset and distraught, and after watching her body camera she testified again that Ms. Kelly was upset and distraught

.No. 37172

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State v. Kel ly

37 RP at 325 (emphasis added). Kevin Kelly objected to the State’s argument as mischaracterizing the evidence. T he trial court overruled this objection, and the prosecuting attorney continued that Julie was “[ u]pset and distraught.” We agree with Kevin Kelly that the prosecuting attorney’s comment about Julie Kelly being distraught misrepresented Officer Kaitlyn Anderson’s testimony. Although Officer Anderson first characterized Julie as being distraught, Anderson, after reviewing her body camera video, indubitably averred that Julie was not distraught. We must ask, however, whether the State’s mischaracterization of evidence prejudiced Kevin Kelly. After the State’s comment, defense counsel immediately objected and the trial court overruled him. When a trial court overrules a timely and specific objection, the court lends an aura of legitimacy to the improper argument. State v. Allen , 182 Wn.2d 364, 378, 341 P.3d 268 (2015). Nevertheless, we note that , in response to defense counsel’s questioning, Officer Kaitlyn Anderson also avowed that Julie was “very down, choked up, . . . a little jumbled in her thoughts, . . .[ and ] water

eyed.” CP at 210. This unchallenged description of Julie Kelly comes close to, if not echoes, a depiction of Julie being “distraught.” The State presented overwhelming evidence of Kevin Kelly’s guilt. If the State ’s attorney had omitted the term “distraught”
from his closing argument, the result would not have differed. There fore, we find no prejudice.No. 37172

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State v. Kel ly

38 Issue 10 : Whether the State’s attorney committed misconduct by vouching for Julie Kelly? Answer 10: No. The prosecuting attorney did not vouch for the credibility of Julie Kelly. Kevin Kelly also contends the State’s a ttorney engaged in misconduct by vouching for the veracity of Julie Kelly when emphasiz ing the distraught nature of Julie when interview ed by law enforcement

. The State argues that commenting that Julie was distraught did not constitute vouching, as it ne ver intimated that the jury should believe her testimony based on her distress. We agree. During closing, the State argued that Julie was credible because of no reason to lie, but the State did not argue that her emotional condition added to her veracity

. Jury Unanimity Instruction Kevin Kelly asserts that the trial court violated his right to jury unanimity when it failed to issue a Petrich instruction to ensure that the jury unanimously agreed as to the conduct that formed the basis for his convicti on . Kelly highlights that the State , by presenting testimony about other calls or texts from the jail to Julie Kelly, presented indirect evidence that he had asked other inmates to contact Julie. Because each of the se purported contacts could constitute separate no contact order violations, Kelly argues that the State should have elected the one discrete act on which the jury must unanimously rely when reaching a verdict.No. 37172

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State v. Kel ly

39 The State responds that Kevin Kelly never requested a Petrich instruction nor incl uded one in his proposed instructions, and thus he invited any alleged error by the trial court. The State further argues that a unanimity instruction was unnecessary because it only charged Kelly with violating a no

- contact order arising from Julie Webst er’s text message on May 14, 2019. According to the State, although it presented evidence of earlier phone calls from the jail, it did not argue that these phone calls occurred on May 14, 2019. Finally, the State maintains that, in its opening and closin g arguments, it s counsel expressed that the government only sought to prove one act which constituted
Ke lly’s crime. Kevin Kelly replies that he played no role in creating the trial court’s error in withholding a jury unanimity instruction. Kelly also r ejoins that an accused may raise the issue of jury unanimity for the first time on appeal.
Issue 1 1 : Whether Kevin Kelly invited any error in the trial court’s failure to deliver a jury unanimity instruction? Answer 1 1 : No. The invited error doctrine p recludes a criminal defendant from seeking appellate review of an error he helped create, even when the alleged error involves constitutional rights. State v. Carson , 179 Wn. App. 961, 973, 320 P.3d 185 (2014) , aff’d , 184 Wn.2d 207, 357 P.3d 1064 (2015)

. To be invited, the error must be the result of an affirmative, knowing, and voluntary act. State v. Mercado , 181 Wn. App. 624, 630, 326 P.3d 154No. 37172

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State v. Kel ly

40 (2014). The defendant must materially contribute to the error challenged on appeal by engaging in some type of affirmative action through which he knowingly and voluntarily sets up the error. In re Personal Restraint of Call , 144 Wn.2d 315, 328, 28 P.3d 709 (2001). The State bears the burden of proof on invited error. State v. Thomas , 150 Wn.2d 821, 844, 83 P .3d 970 (2004). Kevin Kelly did not request or submit a unanimity instruction at trial. Nevertheless, he took no affirmative and knowing act that led to any error. One may complain on appeal about the trial court’s failure to give a unanimous jury inst ruction without objecting to this failure at trial. State v. Crane , 116 Wn.2d 315, 325, 804 P.2d 10 (1991) , abrogated on other grounds by In re Pers. Restraint of Andress , 147 Wn.2d 602, 56 P.3d 981 (2002)

. Crane ’s teaching clashes with the State’s conte ntion that the accused must submit or request a jury unanimity instruction in order to claim error on appeal. We conclude that Kevin Kelly did not invite any error.
Issue 1 2 : Whether the trial court erred by failing to provide the jury with a Petrich
in struction to ensure jury unanimity as to the conduct that formed the basis for Kevin Kelly’s conviction, contrary to Kelly’s right to jury unanimity.
Answer 1 2 : No. The accused may raise a n error initially on appeal if the error invades a fundamental rig ht of the accused. State v. Watkins , 136 Wn. App. 240, 24 4 , 148 P.3dNo. 37172

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State v. Kel ly

41 1112 (2006). A defendant has a constitutional right to a unanimous jury verdict. State v. Kitchen , 110 Wn.2d 403, 409, 756 P.2d 105 (1988). In Washington, the jury may convict an acc used only when a unanimous jury concludes that the defendant committed the criminal act charged in the information. State v. Petrich , 101 Wn.2d 5 66, 569, 683 P.2d 173 (1984) , abrogated on other grounds by State v. Kitchen , 110 Wn.2d 403, 756 P.2d 105 (198 8)

. Whe n the State present s evidence of multiple acts that could constitute the crime charged, the State must identify for the jury the act on which to rely during deliberations or the court must instruct the jury to agree on a specific criminal act. Sta te v. Rodriquez , 187 Wn. App. 922, 936, 352 P.3d 200 (2015) . If the trial court fails to provide a unanimity instruction and the State fails to elect a particular act , constitutional error usually follows because different jurors could have relied on diff

erent acts in reaching a verdict. State v. Rodriquez , 187 Wn. App. 922, 936 (2015)

. This court presumes that the omission of a unanimity instruction prejudic es the defendant. State v. Coleman , 159 Wn.2d 509, 512, 150 P.3d 1126 (2007). The State may ove rcome this presumption by demonstrating that no rational juror could have a reasonable doubt as to any of the incidents alleged. State v. Coleman , 159 Wn.2d 509, 512 (2007)

. At trial, Officer Alisha Nguyen explained that each Spokane County j ail inmate
possesses a unique pin number used to initiate phone calls. Officer Nguyen discovered that Julie Kelly received ten telephone calls from the jail, but that Kevin Kelly ’s pinNo. 37172

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State v. Kel ly

42 number had not been used for any of these calls. The respective callers used t hr ee inmates’ pin numbers to contact Julie: Brendan Dalla, Anton Santrone, and Kelly’s cellmate, Alexander Maravilla. All three men resided in Kelly’s cellblock

. Each of the ten calls may have constituted a violation of the no

- contact order.
The to

- convi ct instruction informed the jury that, to convict Kevin Kelly, the State needed to prove beyond a reasonable doubt that “on or about May 14, 2019,” with knowledge of the existence of a no

- contact order, Kelly violated the order. CP at 41. In closing, the State mentioned that Julie Kelly received the ten phone calls from the Spokane County jail before and d uring that period in which Julie received the text
message. Nevertheless, t he State never alleged or argued that any of the ten phone calls occurred on May 14, 2019. Kevin Kelly analogizes State v. Williams , 136 Wn. App. 486, 150 P.3d 111 (2007). T he State charged Anthony Williams with first degree burglary and alleged that he assaulted one of two men listed in the information. The jury found Willia ms guilty as charged. On appeal, Williams assigned error to the trial court’s failure to instruct the jury that it must unanimously find that Williams assaulted one of the men. This court disagreed with the State that it elected to rely on the assault ag ainst one of the men rather than the other . The court wrote:

While the record indicates that the State emphasized the assault against Johnson to a greater extent than the assault against Otis, the State did not expressly elect to rely only on the assaul t against Johnson inNo. 37172

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State v. Kel ly

43 seeking the conviction. State v. Williams , 136 Wn. App. at 497. Kevin Kelly argues that, as in State v. Williams , the State may have emphasized the text message from Julie Webster, but the State did not expressly tell the jury to o nl y consider Kelly’s alleged act of requesting Webster to send the text . The State distinguishes State v. Williams by arguing that, in th e former case, the State charged that, “in the course of the burglary, Williams assaulted ‘a person, to wit: Makeba Otis and Leslie Johnson. ’” State v. Williams , 136 Wn. App. at 491. Unlike the State in Williams , the State of Washington only charged Kevin Kelly with violating a no

- contact order “on or about May 14, 2019.” CP at 9.
D uring closing, the State listed the e lements needed to be proved to convict Kevin Kelly. When discussing element three, whether Kelly knowingly violated the no

- contact order, the State ’s attorney commented: “Here Ms. Kelly received a text message that she knows is from her husband, Kevin Kel ly.” RP at 298. Though the State also discussed the previous phone calls allegedly from Kelly during closing argument, the prosecuting attorney only referenced them for the purpose of explaining that, “when he couldn’t get through to her by phone, he res orted to a text message.” RP at 299. We conclude that the State sufficiently identified only one act as the basis for the prosecution and that no rational juror could have a reasonable doubt as which of the incidents the State sought to prove. The Sta te did not charge Kevin Kelly withNo. 37172

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State v. Kel ly

44 committing multiple acts. The to

- convict instruction required the jury to find that Kelly violated the order on May 14, 2019, the date of the text message from Julie Webster. Kevin Kelly insists that, to elect a partic ular act, the State must “clearly and explicitly” do so, citing State v. Carson , 184 Wn.2d 207 (2015). Appellant’s Opening Br.
at 31. In Carson , the state high court recognized that, during its closing argument, the State “clearly and explicitly ” elected the three acts on which it relied for conviction.
State v. Carson , 184 Wn.2d at 228. Nevertheless, the Supreme Court did not rule that the
State must “ clearly and explicitly ” make its election. No other decision stands for such a proposition. Rather, the State needs to “ ‘ tell the jury which act to rely on in its deliberations. ’ ” State v. Rodriquez , 187 Wn. App. 922, 936 (2015) (quoting State v. Kitchen , 110 Wn.2d 403, 409 , 756 P.2d 105 (1988) )

. Cumulative Error Finally, Kevin Kelly asserts that the cumulative effect of the errors during trial deprived him of a fair trial. The cumulative error doctrine may warrant reversal, even if each error standing alone would otherwise be considered harmless. State v. Weber , 159 Wn.2d 252, 279, 149 P.3d 6 4 6 (20 06). This doctrine does not apply when “the errors are few and have little or no effect on the outcome of the trial.” State v. Weber , 159 Wn.2d 252, 279 (2006)

. We only find one error, and we conclude the error was harmless. Therefore, we reject Kevin Kelly’s cumulative error contention.No. 37172

- 7

- III

State v. Kel ly

45 CONCLUSION We affirm Kevin Kelly’s conviction for violation of a no

- contact order. A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.

_________________________________ Fearing, J.
WE CONCUR:

______________________________ Lawrence

- Berrey, J.

______________________________ Staab, J.