f!LED

COURT OF APPEALS

DIVISION 11

2014 DEC 30 AM 9: 149

STATE OF WASHINGTON

BY

UTY

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, 

v. 

JIMMY JOSEPH PERKINS, 

DIVISION II

Respondent, 

Appellant. 

No. 44533 -6 -II

UNPUBLISHED OPINION

LEE, J. — A jury found Jimmy Perkins guilty of second degree assault. Perkins appeals

his conviction and sentence, arguing that ( 1) the prosecutor committed misconduct during closing

arguments, and ( 2) the court miscalculated his offender score by adding 1 point for being on

community custody. Because the prosecutor did not commit misconduct and the trial court

properly calculated Perkins' offender score, we affirm. 

FACTS

Jimmy Perkins and John Mayfield were cellmates in the Cowlitz County Jail. Perkins was

in custody for a probation violation, and Mayfield was in custody for an alleged assault. Mayfield

and Perkins had confrontations over various issues. In the common area of the cell unit, Mayfield

questioned Perkins about Mayfield' s missing candy and asked Perkins to leave his belongings
No. 44533 -6 -II

alone. Perkins asked if Mayfield was insinuating that he was a " punk b *tch," to which Mayfield

responded that Perkins was a " punk b *tch." 1 Verbatim Report of Proceedings ( VRP) at 96. 

Perkins approached Mayfield and punched him in the face. In response, Mayfield held Perkins in

a headlock until an inmate trustee broke up the fight. 

After that fight, Mayfield walked around the cell unit common area insulting Perkins and

saying, "[ W] e [ can] take care of it ... when we get locked in." 1 VRP at 129. Perkins motioned

for Mayfield to come into their cell to fight again, but Mayfield continued to walk around the

common area. Perkins then crossed the common area and hit Mayfield. They fought until

correctional officers intervened. Mayfield was examined by a doctor, who determined that he had

a broken cheekbone and that he needed surgery. 

The State charged Perkins with second degree assault for the second fight. The trial court

admitted a surveillance video ofthe cell unit showing the fight between Perkins and Mayfield that

resulted in the charge. 

Perkins claimed self - defense and testified at trial that after the first fight, Mayfield

threatened to rape him when they were locked in their cell. Perkins also testified that " you can't

let somebody continue to talk like that without responding, saying something to him," and there' s

the code of the jail," that if an inmate allows someone to insult him without fighting or standing

up for himself, that insult becomes true. 2 VRP at 240; 3 VRP at 294. Perkins then testified that

he went into his cell to wait for Mayfield to fight. 

On cross - examination, Perkins testified that Mayfield wanted to fight and that Mayfield

knew Perkins was coming after him. Specifically, in response to the State' s question as to whether

he wove through the seating area in the cell unit to sneak over to hit Mayfield, 

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A. There' s no sneaking. 

Q. Okay, so you were directly going after him? 

A. Well, he knew what I was doing the whole time. 

Q. He knew that you were going to come at him and beat him? 

A. The whole time he wanted to fight. 

2 VRP at 250. Perkins further testified on cross - examination that Mayfield only hit him after

Perkins went after him. 

During the State' s cross - examination, Perkins interrupted the prosecutor, stating that

Mayfield was standing outside the courtroom window trying to intimidate him. The prosecutor

said that he did not see Mayfield. The trial court directed Perkins to answer the pending question, 

stating that the trial court would control the hallway. The prosecutor continued questioning

Perkins and defense counsel interrupted, asking the trial court if Mayfield was outside the

courtroom. Again, Perkins said that Mayfield was staring at him, and again, the prosecutor said

he did not see him. The trial court directed Perkins to answer the question and stated that it had

control of the courtroom. 

In closing arguments, the prosecutor argued that Perkins did not have the right to hit

Mayfield based on Mayfield' s insults. The prosecutor referenced Perkins' testimony about " the

code of the jail." 3 VRP at 294. The prosecutor argued that the " code of the jail" did not make

Perkins' use offorce reasonable or deprive Perkins of his free choice to exercise other options and

not fight Mayfield. 3 VRP at 294. The prosecutor argued that if Perkins was concerned for his

safety, " he had a number of options aside from [ fighting]. He could have gone to, you know, 

exclusive custody... The Defendant did not have a right to defend himselfbecause the Defendant

created both of those situations." 3 VRP at 294, 306. The prosecutor also suggested that Perkins

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No. 44533 -6 -II

was trying to distract the jury when he complained that Mayfield was outside the courtroom

because Perkins had just gotten caught giving contradictory testimony. 

During rebuttal argument, the prosecutor reminded the jury that they are expected to read

the jury instructions. The prosecutor then rebutted Perkins' assertion that being insulted was a

good enough reason to fight by arguing that Perkins did not have reasonable grounds for believing

that he was about to be attacked and that the expectation of a future fight does not create the right

to use force. 

The prosecutor also argued that he felt threatened when he was examining Perkins and that

Perkins demonstrated aggressive tendencies on the stand. Perkins objected and moved for a

mistrial. The trial court denied the mistrial and instructed the jury to disregard the prosecutor' s

comments about his personal feelings. 

The prosecutor' s rebuttal argument continued without additional objections. He argued

that Perkins " was and is the aggressor" and that the jury saw " how quickly he was to rise to anger, 

and that is suggestive of someone who' s going to attack someone." 3 VRP at 346. The prosecutor

also suggested that Perkins and defense counsel used " diverting tactics" when Perkins could not

change his story or talk his way out of the situation. 3 VRP at 346. " That' s what his Defense

Counsel did here earlier. And that' s what they get paid to do. Come here and divert your attention

from what really happened." 3 VRP at 346. 

The jury found Perkins guilty of second degree assault. Perkins stipulated to his criminal

history, stating that " he wants to be sentenced today and get it over with." 3 VRP at 368. During

sentencing, Perkins did not object to the prosecutor' s references to the applicable sentencing range

or Perkins' calculated offender score. The felony judgment and sentence showed that Perkins was

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No. 44533 -6 -II

on community custody when the assault took place, and that 1. point was added to his offender

score as a result. The trial court sentenced Perkins to a mid -range sentence. Perkins appeals. 

ANALYSIS

A. PROSECUTORIAL MISCONDUCT

Perkins alleges that the prosecutor committed misconduct by ( 1) commenting on his

personal feelings about Perkins' demeanor while testifying, ( 2) arguing Perkins' propensity for

aggression, ( 3) misstating the law of self - defense and lowering the State' s burden of proof, (4) 

offering his personal opinion on Perkins' credibility and introducing facts not in evidence, and (5) 

disparaging the role of defense counsel. Perkins also alleges that the cumulative effect of the

prosecutor' s misconduct requires reversal. Perkins' claims of prosecutorial misconduct fail. 

To prevail on a claim ofprosecutorial misconduct, Perkins must show that the prosecutor' s

conduct was both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 756, 278 P. 3d 653

2012) ( citing State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 ( 2011)). Once a defendant

has demonstrated that the prosecutor' s conduct was improper, we evaluate the defendant' s claim

ofprejudice under two different standards ofreview, depending on whether the defendant objected

to the misconduct at trial. Emery, 174 Wn. App. at 760 -61. If the defendant objected, he must

show that the prosecutor' s misconduct resulted in prejudice that had a substantial likelihood of

affecting the jury' s verdict. Emery, 174 Wn.2d at 760 -61 ( citing State v. Anderson, 153 Wn. App. 

417, 427, 220 P. 3d 1273, review denied, 170 Wn.2d 1002 ( 2009)). 

Ifthe defendant did not object at trial, the defendant is deemed to have waived any error, 

unless the prosecutor' s misconduct was so flagrant and ill intentioned. Emery, 174 Wn.2d at 760- 

61 ( citing State v. Stenson, 132 Wn.2d 668, 727, 940 P. 2d 1239 ( 1997), cert. denied, 523 U. S. 

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No. 44533 -6 -II

1008 ( 1998)). The defendant is presumed to have waived any error by not objecting because

objections are required to prevent additional improper remarks and abuse of the appellate process. 

Emery, 174 Wn.2d at 762. Therefore, when there is no objection, we apply a heightened standard

requiring the defendant to show that "( 1) ` no curative instruction would have obviated any

prejudicial effect on the jury' and ( 2) the misconduct resulted in prejudice that `had a substantial

likelihood of affecting the jury verdict. ' Emery, 174 Wn.2d at 761 ( quoting Thorgerson, 172

Wn.2d at 455). When reviewing a prosecutor' s misconduct that was not objected to, we focus

less on whether the prosecutor' s misconduct was flagrant and ill intentioned and more on whether

the resulting prejudice could have been cured." Emery, 174 Wn.2d at 762. 

In closing argument, prosecutors are afforded wide latitude to draw and express reasonable

inferences from the evidence. State v. Reed, 168 Wn. App. 553, 577, 278 P. 3d 203, review denied, 

176 Wn.2d 1009 ( 2012). When analyzing prejudice, we do not look at the comment in isolation, 

but in the context of the total argument, the issues in the case, the evidence, and the instructions

given to the jury. State v. Yates, 161 Wn.2d 714, 774, 168 P.3d 359 (2007), cent. denied, 554 U.S. 

922 ( 2008). We also presume that the jury follows the court' s instructions. Anderson, 153 Wn. 

App. at 428. 

1. Arguments based on the prosecutor' s personal feelings

During closing arguments, the prosecutor stated: 

And ifyou want to talk about is [ sic] being threatened, you saw how the Defendant

acted when Ipushed his buttons. Ithought Iwas being threatened. Ithought Iwas

going to be attacked, and did I? Did I

jump over that box and punch him? I didn' t. 

I was a little concerned. But I didn' t punch him. Twenty minutes he waited as John

Mayfield walked around .. . 

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No. 44533 -6 -II

3 VRP at 339 -40 ( emphasis added) ( noting the portion Perkins assigned error to). Perkins

objected. Outside the presence of the jury, Perkins moved for a mistrial. The trial court denied

the motion. 1 The trial court instead instructed the jury as follows: 

I just need to remind you of —of one thing: That the lawyers' remarks, statements, 

and arguments are intended to help you understand the evidence and apply the law. 

It' s important, however, for you [to] remember that the lawyers' statements are not

evidence. You must disregard any remark, statement, or argument that isthat is

not supported by the evidence or the law in my instruction — instructions. The

evidence is the testimony and the exhibits. The Prosecutor made an argument

regarding Mr. Perkins' demeanor on the stand yesterday and his feelings about that. 

You are instructed to disregard that. 

3 VRP at 345 -46. 

Perkins asserts that this jury instruction was insufficient to cure the prejudicial effect ofthe

prosecutor' s statements and that the prosecutor' s statements could not be remedied by a curative

instruction, because they were flagrant, ill intentioned, and prejudicial. Perkins also alleges that

the trial court should have instructed the jury not to consider the propensity evidence. 

Perkins has failed to show that the curative instruction was insufficient to cure the

prejudicial effect. The jury instruction specifically targeted the wrongful conduct by instructing

the jury to disregard the prosecutor' s statements regarding his personal feelings about Perkins' 

demeanor on the stand. Additionally, the State presented multiple witnesses who testified that

Perkins was the aggressor in the fight, and showed a video of the fight. Perkins testified that he

went after Mayfield and hit him first. In the context of the entire argument, all of the evidence, 

1 Perkins does not appeal the trial court' s denial of his motion for mistrial; he only appeals the

prosecutor' s improper statements. His motion for mistrial preserved the issues for appeal. State

v. Lindsay, 180 Wn.2d 423, 430 -31, 326 P. 3d 125 ( 2014) ( finding that that a motion for mistrial

during the prosecutor' s closing arguments preserved the challenge for prosecutorial misconduct). 

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No. 44533 -6 -II

and the jury instruction, Perkins has not shown a substantial likelihood that any resulting prejudice

from the prosecutor' s statements affected the jury' s. verdict. Perkins' claim of prosecutorial

misconduct based on the prosecutor' s statements regarding his personal feelings fails. 

2. Arguments based on propensity

Perkins argues that the following statements were improper because the prosecutor

commented on Perkins' propensity for aggression. 

The point of everything is that the Defendant is the aggressor. He was and is the

aggressor. You did see his temper. You did see how quickly he was to rise to anger, 

and that is suggestive of someone who 's going to go attack someone. It is very

suggestive ofsomeone who is going to attack someone. When he' s caught in certain

areas where he' s unable to change his story or talk his way out of it, the Defendant

was — quickly resorted to flashing anger, quickly. 

3 VRP at 346 ( emphasis added) (noting the portion Perkins assigned error to). Perkins did not

object; accordingly, he has waived any error unless he can show that the " misconduct was so

flagrant and ill intentioned that an instruction would not have cured the prejudice." Emery, 174

Wn.2d at 761 ( citing Stenson, 132 Wn.2d at 727). 

Perkins' claim fails because even assuming, without deciding, that the prosecutor' s

statements were improper, Perkins has failed to show that any resulting prejudice could not have

been cured by an instruction. The State presented strong evidence of Perkins' guilt. The State

presented multiple witnesses who testified that Perkins was the aggressor in the fight and the jury

viewed a video ofthe fight. Perkins himselftestified that he hit Mayfield first. Thus, in the context

ofthe entire argument and the. evidence, Perkins has not shown that the misconduct was so flagrant

and ill intentioned that it could not have been cured by a jury instruction or that the resulting

prejudice had a substantial likelihood of affecting the jury' s verdict. Therefore, we deem Perkins' 

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No. 44533 -6 -II

claim of prosecutorial misconduct based on the prosecutor' s statements regarding propensity

waived. 

3. Prosecutor' s statements relating to the law of self - defense

Perkins argues that the prosecutor committed misconduct by misstating the law of self - 

defense and lowering the State' s burden of proof. Perkins claims that the prosecutor did this by

improperly arguing that Perkins' use offorce was not lawful because Perkins did not retreat or ask

for protection, that force is unlawful in response to threatening words, and that Perkins could not

lawfully use force to defend himself until he was being physically attacked. 

During closing, the prosecutor argued: 

He was there only for a three -day stint in DOC. He knew he was going. There' s

no reason for him to really be concerned about an ongoing, prolonged issue about

being a " bitch" or a " punk." And ifthere was such a concern, he had a number of

options aside from that. He could have gone to; you know, exclusive custody. He

could have gone, pushed one of any of these buttons here, and asked, say, " You

know what, Ifeel like I'm being threatened." " I've gotjust a little bit oftime left to

serve out on my DOC hold, and I can go." " Can you guys help me?" " Can you

get me into protective custody ?" He didn' t do that. Instead, when John Mayfield

was going to throw away his water bottles, the Defendant went and hit him. 

3 VRP at 294 -95 ( emphasis added) (noting the portion Perkins assigned error to). 

He' s there until the next morning. He had other options, and he chose to show that

he wasn' t a punk bitch. All these red "X's" are other options, and not once did he

take those other options. Instead, he created an option. Not something that was

present tense. He was dealing with something way down in the future —if it ever. 

occurred. 

3 VRP at 339 -40 ( emphasis added) (noting the portion Perkins assigned error to). 

Sure, they were saying things. Sure, Mr. Mayfield probably had some colorful

language, but does that really give the Defendant the right to go and beat up Mr. 

Mayfield? The answer is " no." It doesn' t give him the right to do that. The only

thing that Mr. Mayfield was doing was insulting him. Now there 's an old saying, 

Sticks and stones may break my bones, but words may never hurt me." Andyou

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No. 44533 -6 -II

heard something about the code ofthe jail and how, you know, you call someone a

a " bitch" or a " punk, " you' vejust made them into a " bitch" or a " punk" unless

they stand upfor themselves. That' s a choice. That' s a choice that someone makes

to either abide by that code or not abide by that code. And the Defendant made a

choice to abide by that code. 

3 VRP at 293 -94 ( emphasis added) (noting the portion Perkins assigned error to). 

Now his being attacked —that is a really, really important distinction here

yet, again, and this whole idea ofwhat' s self - defense is about. That the Defendant

had to have reasonable groundsfor believing that he is being attacked and to stand

his ground. Is being attacked. That 's present tense. Right then, right there, he gets

to defend himself. Not something in the future, not something an hour -and -a -half

later, then, right then, right now, present tense —is being. That' s what has to be

going through his brain. Is being attacked. That' s what justifies his right to go

and beat up John Mayfield. You saw the [...] video. Was he being attacked? No. 

What he did was —he kicked off his slippers, went around these tables, and went at

John Mayfield who was not expecting him. 

3 VRP at 338 ( emphasis added) (noting the portion Perkins assigned error to). Perkins did not

object to these statements at trial. 

Viewing the prosecutor' s statement in the context ofthe total argument, the prosecutor did

not misstate the law. Rather, the prosecutor argued that the facts do not support Perkins' claim of

self - defense. " A prosecutor can certainly argue that the evidence does not support the defense

theory." State v. Lindsay, 180 Wn.2d 423, 431 -32, 326 P. 3d 125, 130 ( 2014) ( citing State v. 

Russell, 125 Wn.2d 24, 87, 882 P.2d 747 ( 1994), cert. denied, 514 U.S. 1129 ( 1995)). The

prosecutor does not commit misconduct by arguing reasonable inferences from the facts in

evidence. State v. Smith, 104 Wn.2d 497, 510 -11, 707 P. 2d 1306 ( 1985)). 

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The prosecutor' s statements mirror the language ofthe jury instruction and do not misstate

the law.3 The prosecutor argued that, based on the circumstances, Perkins' use of force was not

reasonable. The prosecutor' s statements do not misstate the law of self - defense, lower the State' s

burden of proof, or contradict the jury instructions. The prosecutor' s statements were not

improper. 

Even if the prosecutor' s statements were improper, Perkins has not shown that the

misconduct was so flagrant and ill intentioned that it could not have been cured by an instruction. 

Moreover, as stated above, the State presented strong evidence against Perkins. In the context of

the entire argument and the evidence, Perkins has not shown a substantial likelihood that any

resulting prejudice affected the jury' s verdict, and therefore, his claim ofprosecutorial misconduct

fails. 

4. Arguing facts not in evidence and offering a personal opinion on Perkins' 

credibility

Perkins alleges that the prosecutor argued " facts" not in evidence and provided a personal

opinion of Perkins' credibility by suggesting that Perkins fabricated a diversion. Br. ofAppellant

at 18. 

When I had him pinpoint it on that, and he couldn' t get out of that statement, as a

person who knew he was caught in that statement, he wanted to divert your

attention. He wanted you all to think, " Oh, my goodness." He was really being

intimidated by John Mayfield. So what does the Defendant do? " Tell your client, 

tell your victim to quit intimidating me. " And what did you guys all do? You all

2 " Number 14A. It is lawful for a person who is in a place where that person has a right to be and

who has reasonable grounds for believing that he is being attacked to stand his ground and defend

against such attack by the use of lawful force. The law does not impose a duty to retreat." 3 VRP

at288. 

3 Perkins does not challenge the self - defense instructions given to the jury. 

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No. 44533 -6 -II

turned and looked at doors. You looked out there, and you forget for a brief

moment what he was saying. " John was in, this corner intimidating me." And then, 

I knew it was on, so I kicked off my slippers." Defendant' s right therethere' s

his slippers. Where' s John? Right there walking past Table 3 — right there. Is he

even looking at the Defendant? Is he saying, " Let' s go. Let' s fight. "Now, he' s

not. John' s looking at the ground, looking away. And look at the Defendant; he

just goes over to him. Let' s watch that. 

3 VRP at 302 -03 ( emphasis added) (noting the portion Perkins assigned error to). Perkins did not

object to the statements at trial. 

Perkins has not shown that the prosecutor argued facts outside of the record. Prosecutors

are afforded wide latitude to draw and express reasonable inferences from the evidence. Reed, 

168 Wn. App. at 577. The prosecutor argued that Perkins wanted the jury to think that .he was

intimidated by Mayfield. This argument is a reasonable inference from the facts on the record,4

and from Perkins' theory of self - defense. Further, the prosecutor' s statement that the jury "turned

and looked at the doors" is a recitation of what happened in the courtroom, not an argument of

facts not in evidence. 3 VRP at 302. 

Perkins also has not shown that the prosecutor offered his own opinion about Perkins' 

credibility.. Perkins properly notes that there is no evidence to suggest that Mayfield was not

outside the courtroom. However, the prosecutor did not say that he believed Perkins was lying or

that there was evidence that Perkins was lying. He recounted Perkins' testimony, which was on

the record, and suggested that Perkins interrupted him to divert the jury' s attention from the

4 The prosecutor referenced Perkins' interruption during the State' s cross - examination, when

Perkins said, "[ w]hy is your witness trying to intimidate me, Your Honor, now by standing outside

that window and staring at me." 2 VRP at 253. 

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No. 44533 -6 -II

question, which is a reasonable inference from the facts on the record. The prosecutor did not

offer a personal opinion and the statements were not improper. 

Even if the statements were improper, Perkins has not shown that the misconduct was so

flagrant and ill intentioned that it could not have been cured by an instruction. Moreover, the State

played a video of the fight, and presented multiple witnesses testifying that Perkins was the

aggressor in the fight. Perkins testified that he went after Mayfield and hit him first. In the context

of the entire argument and the evidence, Perkins has not shown a substantial likelihood that any

resulting prejudice affected the jury' s verdict. Therefore, Perkins' challenge fails. 

5. Comments disparaging defense counsel

Perkins alleges that the prosecutor' s comments about Perkins and defense counsel were

disparaging and flagrant, ill intentioned, and prejudicial. Perkins assigns error to the following

statements made by the prosecutor during closing arguments: 

When he' s caught in certain areas where he' s unable to change his story or talk his

way out ofit, the Defendant was — quickly resorted to flashing anger, quickly. And

ifthat didn' t work for him, then he used diverting tactics. That' s what his Defense

Counsel did here earlier. And that' s what they get paid to do. Come here and

divert your attention from what really happened. What really happened is the

Defendant assaulted John Mayfield twice. He did it without lawful authority. 

3 VRP at 346 ( emphasis added) ( noting the portion Perkins assigned error to.) Perkins did not

object to the above statement, and the State concedes that the above statement was improper, but

argues that it was not prejudicial. 

A prosecutor may not " disparagingly comment on defense counsel' s role or impugn the

defense lawyer' s integrity." Thorgerson, 172 Wn.2d at 451 ( citing State v. Warren, 265 Wn.2d

17, 29 -30, 195 P. 3d 940 ( 2008)). Here, it is clear that the prosecutor made a statement saying that

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No. 44533 -6 -II

the defense counsel is paid to divert attention, and that is improper. We accept the State' s

concession that the prosecutor' s statement was improper. 

But, Perkins has not shown that the misconduct was so flagrant and ill intentioned that it

could not have been cured by a

jury instruction. Moreover, as previously discussed, given the

context of the entire argument and the evidence, Perkins has not shown a substantial likelihood

that any resulting prejudice affected the jury' s verdict. 

6. Cumulative effect

Perkins argues that the alleged improper statements, " whether considered individually or

in the aggregate, require reversal." Br. ofAppellant at 20. ‘" [ T] he cumulative effect of repetitive

prejudicial prosecutorial misconduct may be so flagrant that no instruction or series of instructions

can erase their combined prejudicial effect. Lindsay, 180 Wn.2d at 443 ( quoting In re Glasmann, 

175 Wn.2d 696, 707, 286 P.3d 673 ( 2012)); State v. Walker, 164 Wn. App. 724, 738, 265 P. 3d 191

2011) ( Cumulative error applies when the prosecutor makes " improper comments not just once

or twice, but frequently. "). 

Here, the prosecutor committed misconduct when he disparaged the role of defense

counsel, saying that it is paid to divert the jury' s attention. Courts apply the cumulative error

doctrine to cases of repetitive or frequent misconduct —one instance is neither repetitive nor

frequent. Accordingly, the cumulative error doctrine does not apply here. 

B. OFFENDER SCORE CALCULATION

Perkins alleges that the trial court erred by . miscalculating his offender score by adding 1

point because he was under community custody at the time of the assault. Interpretation of the

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Sentencing Reform Act (SRA) is a question of law, which we review de novo. State v. Jones, 172

Wn.2d 236, 242, 257 P.3d 616 ( 2011). 

The SRA provides that 1 point is added ifthe present conviction is for an offense committed

while the offender was under community custody. RCW 9. 94A.525( 19). Community custody is

tolled if a defendant is in confinement, " unless the offender is detained pursuant to RCW

9.94A.740 or 9.94A.631 ... for confinement pursuant to sanctions imposed for violation of

sentence conditions, in which case, the period of community custody shall not toll." RCW

9.94A.171( 3)( a). 

The State argues that Perkins cannot challenge his offender score on appeal because he

stipulated to his criminal history. Washington courts " hold that in general a defendant cannot

waive a challenge to a miscalculated offender score" when based on legal error. In re Pers. 

Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P. 3d 618 ( 2002). "[ T]he court may rely on the

defendant' s stipulation or acknowledgement of prior convictions to calculate the offender score." 

State v. James, 138 Wn. App. 628, 643, 158 P. 3d 102 ( 2007), review denied, 163 Wn.2d 1013

2008). When a defendant stipulates to his prior convictions to calculate his offender score, he

cannot object to the calculation on appeal. State v. Cadwallader, 155 Wn.2d 867, 875, 123 P. 3d

456 ( 2005). 

Here, Perkins agreed to his criminal history, and he expressed to the court that he wanted

to get sentencing over with and did not want to contest his criminal history. The criminal history

that Perkins stipulated to listed his prior convictions and showed that he was on community

custody at the time of the offense. Taking the record as a whole, because Perkins affirmatively

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agreed to his criminal history and the fact that he was on community custody at the time of his

offense, he cannot challenge it on appeal. 

We affirm Perkins' conviction and sentence. 

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record pursuant to RCW 2. 06.040, it is

so ordered. 

We concur: 

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