### FILED 

# COURTOFAPPEALS DIVISION 11 2013 SEP k

## Q AM 8: 38 s IN THE COURT OF APPEALS OF THE STATE OF WASHIN& DIVISION II STATE OF WASHINGTON,Respondent,

v. KENNETH RAYMOND NORDSTROM, Appellant. No. 42565 - 3 -II

UNPUBLISHED OPINION

JOHANSON, A.C.J. - 

### Ajury found Kenneth Raymond Nordstrom guilty offirst degree 

## burglary, second degree assault, and fourth degree assault after he unlawfully entered his girlfriend's apartment and attacked his girlfriend's teenage daughter and the daughter' s pregnant best friend. 

### He appeals his convictions and sentence, claiming that the trial court erred in (1) failing to redact prejudicial statements from a 911 call, (2) denying Nordstrom surrebuttal, ( 3) imposing a " clearly excessive" exceptional sentence, and ( 4) finding Oregon's second degree 

### assault statute legally comparable to Washington's second degree assault statute. Additionally, 

### he claims the prosecutor committed misconduct by shifting the burden of proofto Nordstrom. We affirm his convictions and sentence because ofthe issues he preserved for appeal; Nordstrom 

### fails to demonstrate any reversible error. FACTS 

### Nordstrom had a history ofhostilitywith AD (his girlfriend's teenage daughter) and AG AD' s best friend);' Nordstrom felt that AD disrespected her mother, MD ( Nordstrom' s girlfriend). 

### He also did not approve ofAD and AG's friendship because AG was black and as 

### 1 We use initialsto protectthe privacyofvictims under 18years ofage.No. 42565 -3 -II

Nordstrom described her, a gang - banger. Because of his tenuous relationship with AD, MD 

### prohibited Nordstrom from being in MD' s home unless MD was present. 

### Early one September morning in 2010, AD and AG slept in MD' s apartment while MD

worked a night shift. 

### They were suddenly awakened by Nordstrom, who stood over them and began hitting AD and the pregnant AG. AD ran to the kitchen to call 911, but Nordstrom followed her and continued to hit her. While Nordstrom attacked AD in the kitchen, AG ran outside with her cellular telephone and contacted 911, which dispatched officers to MD' s apartment. Before the officers arrived, Nordstrom fled. As a result of Nordstrom' s attack, AD 

### suffered numerous bruises on her arms and shoulders, swelling on her face, and afractured nose. AG's injuries included abloody nose and abruised thumb.

The State charged Nordstrom with first degree burglary2 with an aggravator alleging that Nordstrom knew ofAG's pregnancy,

### 3 second degree assault4 committed against AD, and fourth degree assaults committed against AG. Before trial, Nordstrom did not reveal an alibi defense and instead claimed a " general denial" defense. Clerk's Papers (CP) at 3. Attrial,the State theorized that Nordstrom entered MD' s second - story apartment through 

### the sliding door on the balcony because AD had lockedthe frontdoor,and the sliding patio door did not lock. Nordstrom did not possess keys to the front door and, had he opened the front door, 

### an alarm would have sounded. Instead,the alarm first rang when AG opened the doorto exitthe

2 RCW 9A.52.020(1)( b). The charging document listed AD and AG as victims. 

### 3 RCW 9.94A.535(3)( c). 4 RCW 9A.36.021( 1)( a). s RCW 9A.36.041. 2No. 42565 -3 -II

apartment and call 911. 

### Multiple witnesses, including Nordstrom, testified that Nordstrom had accessed the apartment through the balcony dooron at leastone earlier occasion.

The State moved to admit into evidence AG' s 911 call. In the 911 call, an excited AG 

### recounted how Nordstrom showed up in AD's apartment and started beating the girls. Responding to the 911 dispatcher's questions, AG described Nordstrom, recounted the night's
events, and speculated that he came there to beat them up because he disliked African Americans. 

### The 911 call also contained the following passage to which no particular attention was drawn at trial: "[ 

### AD' s] mom is a fucking drug addict. They' re [ MD and Nordstrom] both tweakers. They both do meth. So, she's crazy and he's crazier. 

### And they arejust both crazy. 

### That's the only thing about it. I really don't knowwhy she let him in the house." 2B Verbatim Report of Proceedings (VRP) at 345. Nordstrom objected to the 14-minute 911 call as a whole, simply claiming that it was inadmissible hearsay. He did not reference the passage relating to 

### Nordstrom's drug use, nordid he objectto its potential prejudicial effect. Instead,he argued, T]his is sort ofa rambling long thing that is talking more about -- more about -- than an excited utterance or even a present sense impression. She is talking about past events. 

### She' s going to do this. She' s going to do that. So, I'd say it's not 

### admissible unless you redacted it heavily [to allow only thejury to hear onlythe hearsay-exception materials]. lA VRP at 63. 

### The trial court admitted the call, ruling that itconsisted ofhearsay exceptions. At trial, Nordstrom testified that he did not commit the burglary and assault against AD 

### and AG; instead, he spent that night drinking with an old friend, Carl Kessler. He claimed that 

## after drinking,he droveto aPortlandjob site at employer Greg Thomas'shousewhere he slept offhis inebriation in his car. The State called MD to rebut Nordstrom' stestimony because when Nordstrom was injail, he told MD that on the night ofthe crimes, he was with an acquaintance, Shannon," at Thomas' s house —not with Kessler. 

### During MD's testimony, the State played a 3No. 42565 - 3 -II jail phone call snippet6 in which Nordstrom told MD that he had been with "Shannon" the night ofthe crimes.

Based on this rebuttal evidence, Nordstrom wanted to offer surrebuttal. The trial court expressed skepticism and said surrebuttal testimony would be improper " unless there is 

### something completely different [that] comes up [during rebuttal]." 3A VRP at 608. In an offer 

### of proof,Nordstrom offered that he wanted to clarify the whole context of hisjail phone call. Nordstrom also offered thatwhen hetold MD he was with "Shannon" on the night ofthe crimes, 

### he was lying. Defense counsel stated that " Shannon" was Shannon Wink. During cross - examination ofNordstrom' s offer ofproof,Nordstrom explained that he had seen Wink, Kessler, and Scott Parks on the night ofthe crimes but that the defense investigator had not pursued these individuals. Defense counsel objected and noted that Nordstrom' s offerwas exceeding the scope of rebuttal. The trial court agreed. During closing,the prosecutor argued, What [Nordstrom] testified to is that he went out somewhere in Portland. Ran into some random friend and that it was his friend. This was one of his friends. They go back -- 

### they go so far back, this person that he was with. But, you didn't hear from him today. You didn't hear from Shannon Wink either, the person that he told [MD] on the phone that he was with. You know,his friends. 3B VRP at 690. Nordstrom objected to this argument as burden shifting, and the trial court 

### advised the jury that the defense had no burden to establish innocence. In rebuttal, the
prosecutor again argued, " This work site he was at. 

### It was at somebody's house. Somebody -- somebody -- 

### Gary would have woken up and found [Nordstrom] at his house. But, you didn't 

### hear from Gary. Nor did you hearfrom Carl." 3B VRP at 748. Nordstrom again objected, and 

### 6 Thejail phone call was lengthy, butthe trial court limited the State to playingjustthe portion relevantto rebutting Nordstrom'stestimony. 4No. 42565 - 3 -II 

### the trial court reiterated thatthe State borethe burden ofproof. Thejury found Nordstrom guilty 

### on all counts and found by special verdictthathe knewAGwas pregnant duringthe burglary. At sentencing, when the trial court calculated Nordstrom's offender score, it considered his prior Oregon second degree assault conviction. The trial court found that Nordstrom' s Oregon second degree assault conviction was comparable to Washington' s third degree assault. Thus, the trial court added an offender score point for this Oregon conviction.

The trial court sentenced Nordstrom within the standard range and imposed concurrent

sentences. 

### The trial court found that aggravating circumstances warranted an additional 40- month exceptional sentence to run consecutive to the other sentencing terms because the jury 

### found that Nordstrom knew AG was pregnant during the burglary, an aggravating factor. The 

### trial court said that in imposing the exceptional sentence, it also considered that Nordstrom had maxed out" his offender score. 4 VRP at 835. Nordstrom appeals. ANALYSIS I. 911 RECORDING 

### Nordstrom claims that the trial court erred in refusing to redact irrelevant, prejudicial evidence from the 911 call recording, denying Nordstrom a fair trial. Because Nordstrom failed 

### to challenge the 911 recording for unfair prejudice at trial, he did not preserve this issue for appeal and, even ifpreserved, any errorwas harmless. A. Standard of Review 

### We generally will not consider theories or arguments different from those advanced at trial. State v. McDonald, 74 Wn.2d 474, 480, 445 P.2d 345 ( 1968). Parties may only assign

5No. 42565 - 3 -II
error on appeal on the specific ground ofthe evidentiary objections they raised at trial. State v. Boast, 87 Wn.2d 447, 451, 553 P.2d 1322 ( 1976). Specific objections are necessary at trial so 

### that the judge may understand the question raised and the adversary may be afforded an opportunityto remedythe claimed defect. Boast, 87 Wn.2d at451. 

### We may, however, consider claims raised forthe first time on appeal when those claims involve a manifest error affecting a constitutional right. RAP 2.5( a)( 3). Generally, evidentiary errors are not of constitutional magnitude and therefore require reversal only ifthe defendant is prejudiced. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 ( 1997). An error is prejudicial when " within reasonable probabilities, the outcome of the trial would have been materially affected hadthe error not occurred." 

### State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 1981). The question is whether the untainted evidence is sufficient to overwhelmingly support 

### thejury's finding ofguilt. State v.Anderson, 171 Wn.2d 764, 770, 254 P.3d 815 (2011). B. Not Preserved Nordstrom challenges for the first time on appeal the prejudicial effect ofthe following 

### statements in the 911 call:7 "[ AD' s] mom is a fucking drug addict. They're [ MD and Nordstrom] both tweakers. They both do meth. 

### So, she' s crazy and he' s crazier. And they are just both crazy. That's the only thing about it. 

### I really don't know why she let him in the house." 2B VRP at 345. Before trial, Nordstrom never argued that this passage was unfairly prejudicial. Instead, 

### he argued that the entire recording contained improper hearsay. Butthe State did not offerthese statements to prove the truth ofthe matter asserted and because Nordstrom never objected to the

The trial court admitted into evidence AG' s entire 911 call. 6No. 42565 -3 -II

potential prejudice in this passage, he never allowed the trial court to remedy any questions of prejudice at trial. In addition, he does not include a RAP 2.5(a)(3) analysis arguing a manifest 

### erroraffecting aconstitutional right. Thus, Nordstrom failedto preservethis errorforappeal.

Even if Nordstrom preserved this alleged error, his argument still fails. In addressing his 

### argument on the merits, and assuming without deciding that he raises a constitutional error, we must analyze whether untainted evidence overwhelmingly supports the jury's guilty verdicts. See Anderson, 171 Wn.2d at 770. Here, thejury heard overwhelming evidence. MD testified that she forbade Nordstrom from being in the apartment when she was absent, and she changed 

### the door locks so thatNordstrom could notfreely enteronhis own; had he opened the front door,
an alarm would have sounded. 

### MD also testified that the balcony door did not lock, and it was undisputed thatNordstrom had once scaledthe back balconyto access the apartment before. 

### And importantly, both victims knew Nordstrom and identified him as the assailant and medical professionals confirmed the victims' injuries. Finally,Nordstrom admitted that he knew AG was pregnant at the time. Therefore, even had Nordstrom preserved this issue for appeal and 

### demonstrated that the trial court abused its discretion in admitting the portion of the 911 

### recording he seeks to challenge for the first time on appeal, he cannot demonstrate prejudicial effect compromising his rightto afairtrial and warranting aretrial. II. SURREBUTTAL TESTIMONY 

### Next, Nordstrom argues that the trial court erred in,refusing to allow him to testify in surrebuttal, denying him due process. We conclude that the trial court did not err in denying Nordstrom' s motion to present surrebuttal evidence. We review the trial court' s refusal to allow surrebuttal evidence for a manifest abuse of discretion. State v. Luvene, 127 Wn.2d 690, 709 -10, 903 P.2d 960 ( 1995). A trial court abuses 7No. 42565 - 3 -II 

### its discretion when it makes decisions that are manifestly unreasonable or based on untenable grounds or reasons. State v. Magers, 164 Wn.2d 174, 181, 189 P.3d 126 (2008). 

### Simply stated, the function of surrebuttal is to rebut the rebuttal." State v. Harris, 12 

### Wn. App. 381, 386, 529 P.2d 1138 ( 1974). " It is not the function of surrebuttal to provide the 

### defendant an opportunityto present evidence cumulative or confirmatory ofthatwhich has been, or ought to have been, presented in his case -in-chief." Harris, 12 Wn. App. at 386. Mere 

### contradiction by a party who has already testified to the contrary is not impeachment such as to justify surrebuttal. See State v.Stambach, 76 Wn.2d 298, 302, 456 P.2d 362 (1969). 

### Here, Nordstrom' s desire to testify in surrebuttal stemmed from his earlier testimony that 

### he did not committhe crimes because he was drinking with Kessler before spending the night in his car at a Portland job site. 

### The State rebutted this alibi by calling MD, who testified that Nordstrom told her over the phone that on the night ofthe crime, he was with Wink, not Kessler. 

### As a result, Nordstrom wanted to clarify and offer context for the whole phone conversation. And he said that he lied when he told MD that he was with Wink. The trial court 

### ruled that Nordstrom's testimony regarding lying about Wink would be improper surrebuttal evidence, presumably because testifying to the context of the phone call did not rebut MD's testimonythat Nordstrom told herthat he was with Winkthe night ofthe crimes. 

### Nordstrom had already testified once and his proposed surrebuttal would not impeach MD' s rebuttal testimony. Therefore, we hold that the trial court' s denial of surrebuttal was not 

### manifestly unreasonable orbased on untenable grounds.

8No. 42565 -3 -II
III. PROSECUTORIAL MISCONDUCT Next, Nordstrom argues that the prosecutor committed misconduct when she repeatedly 

### argued that the jury should convict Nordstrom based on his failure to call certain witnesses to corroborate his alibi. We disagree thatthe prosecutor committed misconduct. A. Standard of Review To prevail on a prosecutorial misconduct claim, a defendant must show that in the context ofthe record and all the trial circumstances, the prosecutor' s conduct was improper and prejudicial. State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 ( 2011). We consider the prosecutor' s alleged improper conduct in the context ofthe total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions. State v. Anderson, 153 Wn. App. 417, 430, 220 P.3d 1273 ( 2009), review denied, 170 Wn.2d 1002 (2010). Ifthe defendant objected at trial, he must show that the prosecutor' s misconduct resulted in prejudice that had a 

### substantial likelihood ofaffecting thejury's verdict. State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 ( 2012). 

### Under the missing witness doctrine,where a party fails to call awitness the party would 

### properly be expected to call as part ofits case, and the witness is within that party's control,the 

### jury may draw an inference that the witness'stestimonywould be adverse to that party. State v. Blair, 117 Wn.2d 479, 485 -86, 816 P.2d 718 ( 1991) ( 

### citing State v. Davis, 73 Wn.2d 271, 276, 438 P.2d 185 ( 1968), 

### overruled on other grounds by State v.Abdulle, 174 Wn.2d 411, 275 P.3d 1113 ( 2012)). 

### Generally, the missing witness doctrine does not apply where the witness is equally available to both parties. Blair, 117 Wn.2d at490. Forawitness to be "available," there

9No. 42565 - 3 -II 

### must have been such a community of interest between the party and the witness, or the party must have a superior opportunity for knowledge of a witness, that in ordinary experience, it 

### would have been reasonably probable thatthe party would have called the witness to testify for the party except forthe fact that his testimony would have been damaging. Blair, 117 Wn.2d at 490 (citing Davis, 73 Wn.2d at 277). 

### When the missing witness doctrine is satisfied, there is no misconduct where the prosecutor argues inferences relating to the missing witness to the jury. State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003). Moreover,the State may comment 

### on the lack ofevidence to support the defendant' s exculpatory theory. State v. Pierce, 169 Wn. 

### App. 533, 551 n.7, 280 P.3d 1158, review denied, 175 Wn.2d 1025 (2012). B. Analysis 

### Both parties rely on the missing witness doctrine. Nordstrom cites Blair to support his 

### claim thatthe missing witness doctrine does not apply. The State asserts thatthe missing witness doctrine applies and that its arguments were proper. In Blair, Blair argued that the prosecutor 

### had improperly shifted the burden ofproofby commenting on his failure to call witnesses when he had no dutyto do so. 117 Wn.2d at 484. Our Supreme Court disagreed and held that because Blair testified that he knew the names and whereabouts ofthe potential witnesses, and because 

### the State did not knowthese people who were identified onlyby their first names, these potential 

### witnesses were within the "peculiar availability" ofthe defense. Blair, 117 Wn.2d at 491. 

### As athreshold matter,we notethat Nordstrom did not notify the State pretrial that he was asserting an affirmative alibi defense. See CrR 4.7(b)(2). And because Nordstrom did not 

### disclose his alibi defense or any witnesses that could support his defense, the State was unaware

10No. 42565 - 3 -II ofthese potential witnesses until Nordstrom testified. We reject Nordstrom' s claim thatthe State knew of these witnesses, and we conclude instead that these witnesses were solely within Nordstrom' s control. 

### Finally,the State may argue, as it did here, inferences that arise from the evidence or from the lack of evidence supporting an exculpatory theory. See Pierce, 169 Wn. App. at 551 n.7. 

### Here, the trial court instructed thejury that "the lawyers' statements are not evidence." CP at 84 ( Instruction No. 1). It also instructed the jury that "[ a] reasonable doubt is one for 

### which a reason exists and may arise from the evidence or lack ofevidence. It is such a doubt as 

### would exist in the mind ofa reasonable person after fully,fairly, and carefully considering all of the evidence or lack of evidence." CP at 86 ( Instruction No. 2). State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747 ( 1994) ( " It is not misconduct, however, for a prosecutor to argue that the 

### evidence does notsupportthe defensetheory. "), cert. denied, 514 U.S. 1129 ( 1995). 

### During closing, the prosecutor questioned why Nordstrom did not call Kessler to testify that he was with Nordstrom the night of the crimes if Nordstrom and Kessler were such good friends. 

### During rebuttal, the State argued that "Gary "8 should have found Nordstrom asleep in his car in the morning. Later,the State argued once more in rebuttal, "[ I]fthe witnesses that you 

### are using thatyou decide to raise in yourdefense are in your control then it - -." 3B VRP at 749. Nordstrom timely objected to each ofthese arguments. 

### Like Blair, until he testified, only Nordstrom knew of Kessler and Thomas and their alleged role as potential alibi witnesses, so these witnesses were within Nordstrom' s peculiar

control. Nordstrom had not disclosed Kessler or Thomas as potential witnesses, and the record 

### 8 When the prosecutor referredto " Gary," she must have meant Thomas, Nordstrom' s employer 

### who ownedthe property atwhich Nordstrom claimed to have slept in his car. 11No. 42565 -3 - II

makes no reference to Kessler or Thomas until Nordstrom testified. 

### Accordingly, the State did 

### not improperly shift the burden of proof when it commented on Nordstrom's failure to call Kesslerand Thomas and the absence ofevidence supporting Nordstrom's testimony. 

### Similarly, the State did not shift the burden of proof by commenting on Nordstrom's failure to call Wink even though the State knew of Wink. The record shows that Nordstrom 

### referred to her in thejail phone recording only as " Shannon." Like Blair, the State' s knowledge of a first name without additional information, like a full name or known whereabouts, does not give rise to awitness' s equal availability. Accordingly,the State did not share such a community 

### ofinterest with Winkthatin ordinary experience, itwould have been reasonably probable forthe State to call her to testify. See Blair, 117 Wn.2d at 490. In addition, because the State may 

### properly argue inferences from the evidence, or lack ofevidence, the prosecutor did not commit misconduct in arguing inferences relating to Kessler, Thomas, and Wink's absence at trial. See Cheatam, 150 Wn.2d at 652. Nordstrom demonstrates no error. IV. EXCEPTIONAL SENTENCE Nordstrom next claims that the trial court abused its discretion in imposing a clearly 

### excessive exceptional sentence based on AG's pregnancy. Specifically,he contends thatthe trial court lacked a rational basis to impose an exceptional sentence. We disagree. To reverse a sentence outside of the standard range, we must find that either ( 1) the 

### sentencing court's reasons are unsupported bythe record or do notjustify a sentence outside the standard range, or (2) the sentence imposed was clearly excessive. RCW 9.94A.585(4). And

12No. 42565 - 3 -II under RCW 9.94A.535(3)( c), 

### an aggravating circumstance occurs when a defendant commits a violent offense and knows that the victim was pregnant. We will not reverse the length ofan exceptional sentence as " clearly excessive" absent an abuse of discretion. State v. Ritchie, 126 Wn.2d 388, 392, 894 P.2d 1308 ( 1995). A sentence is 

### clearly excessive ifit is based on untenable grounds or untenable reasons, or ifit is an action no reasonable judge would have taken. 

### State v. Sao, 156 Wn. App. 67, 80, 230 P.3d 277 (2010), review denied, 170 Wn.2d 1017 (2011). Nordstrom committed a violent offense against AG, first degree burglary,9 and he acknowledged that he knew she was pregnant at the time. 

### He assaulted her by hitting her three to five times, causing a bloody nose and bruised thumb. Here, the jury found that Nordstrom knew that AG was pregnant at the time ofthe crimes. 

### Evidence supported this finding. Because 

### the trial court applied the aggravating circumstance found by ajury, and the record supports this finding,the trial court did not basethe exceptional sentence on untenable grounds or reasons. Next, Nordstrom argues that the 40 months added to the standard range was clearly

excessive. Nordstrom, however, does not demonstrate how the additional time is unreasonable. 

### The trial court reasonably imposed the exceptional sentence because the jury found that Nordstrom knew AG was pregnant during the crime and because Nordstrom had a " maxed out"
offender score. 4 VRP at 835. Further, under our antimerger statute, the trial court could have



### 9 Under former RCW 9.94A.030(50) ( 2009), aviolent offense includes any class A felony. First 

### degree burglary is a class Afelony. RCW 9A.52.020(2). 13No. 42565 - 3 -II imposed separate sentences for both the burglary and the assaults. RCW 9A.52.050. 

### Accordingly,the trial court did not impose a clearly excessive sentence or abuse its discretion. See RCW 9.94A.585(4). V. COMPARABILITY OF FOREIGN OFFENSE 

### Finally, Nordstrom argues thatthe trial court erred when it found that his Oregon second degree assault conviction was comparable to a Washington second degree assault. Nordstrom is

mistaken. The trial court did not find that Oregon' s second degree assault was comparable to a Washington second degree assault; instead, the trial court found that the Oregon conviction was comparable to a Washington third degree assault. Because Nordstrom alleges error about 

### something that did not occur, and he does not question whether Oregon's second degree assault and Washington's third degree assault statutes are legally comparable, he presents nothing for us to consider.

We affirm. 

### 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 in accordance with. RCW 2.06.040, it is so ordered.

We concur:

UINN -

BRINTNALL, J. JOHANSON, A.C.J. 1 7

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