### IN THE COURT OF APPEALS OF THE STATE OF W. DIVISION II STATE OF WASHINGTON, Respondent,

V. SHAWN ERIC CHRISTOPHER, Appellant. F Lc- D cOJrt Ap. , 1 Elf `,, 1 1 I ° .

L . 

### 2015 f=; -?

4

# I 4 • 3 

# IIATK(

IC Nor 

# k l6` 41GT0fe

No. 45694 -

0 -II

UNPUBLISHED OPINION

SUTTON, J. — Shawn E. Christopher appeals his conviction and sentence for second degree assault, violation ofa domestic violence no contact order, and witness tampering. He argues that 1) Substitute House Bill 1188 ( SHB), Laws of 2011, chapter 166, section 1, violated the single - subject and subject -

in - title requirements of article II, section 19 ofthe Washington Constitution, 

### 2) the prosecutor committed prosecutorial misconduct, and (3) the trial court erred by failing to
consider his current or future ability to pay legal financial obligations ( LFOs). In addition, Christopher asserts additional claims in his statement ofadditional grounds (SAG). We hold that Christopher ( 1) does not have standing to challenge the constitutionality of 

### SHB 1188 because he was convicted ofsecond degree assault by strangulation, and SHB 1188
addressed only second degree assault 

### by suffocation; ( 2) cannot establish prejudice based on a claim ofprosecutorial misconduct; and (3) cannot challenge his LFOs because he waived this issue 

### under RAP 2.5(a) by failing to object at sentencing. We reject Christopher's additional claims in his SAG. We affirm his conviction and sentence.No. 45694 - 0 -II FACTS 

### On August 22, 2013, Christopher and his girlfriend, Christina Gutierrez, were drinking
with friends in their apartment. 

### Christopher accused Gutierrez of staring at their mutual friends,
and they started to argue. Christopher put his hands around Gutierrez' s neck and choked her for
about a minute. When Christopher let her go, Gutierrez called 911. Christopher left the apartment and the police later apprehended him. 

### The next day, the trial court issued a no contact order against Christopher, which prohibited him from contacting Gutierrez in person orthrough others. Laterthatmonth, Gutierrez received a call from an unfamiliar number. When she called the number backthe caller identified himself as a friend of Christopher' s from jail, but refused to state his name. The caller read Gutierrez a letter from Christopher, which asked Gutierrez to go to the police and tell them she 

### waslying about Christopherstrangling her. The callertold Gutierrezthat Christopher.was looking
at a second strike. A few days later, Gutierrez received texts from the same number asking questions about their " mutual friend." Report of Proceedings ( RP) ( Nov. 12, 2013) at 166. Following this second exchange, Gutierrez called the police and told them about the
communications.

The police later identified Jacinto Hausinger as the caller and text messenger. He and 

### Christopher metwhen they shared the samejail cell in late August 2013. Hausinger admitted that Christopher asked him to contact Gutierrez and read her the letter. He also admitted to,trying to persuade Gutierrez to change her story. The State charged Christopher with assault in the second degree, violation of a domestic 

### violence no contact order, andtampering with awitness. Attrial, Gutierreztestified and identified 2No. 45694 - 0 -II

a number of pictures taken of her neck 

### following the assault. She identified the red lines of 

### handprints, a hickey, bruising, and Christopher'sthumbprint on her neck. OfficerTherman Bibens, who responded to Gutierrez's 911 call, also testified. During his direct testimony, the prosecutor asked Bibens if he knew Christopher. Bibens responded, " I' ve met [ Christopher] before on some previous calls at that same location." RP ( Nov. 13, 2013) at 

### 234. Christopher objectedto the testimony,which the trial courtsustained and ordered thejuryto disregard the last remarks." RP (Nov. 13, 2013) at 234-35. 

### Christopher then moved for a mistrial on the basis that Bibens' testimony regarding his 

### pre - arrest contacts with Christopher was especially prejudicial to his case. The trial court denied the motion for a mistrial ruling thatthe " sustaining ofthe objection and the order for thejury to disregard the comment is sufficient in the circumstance." RP ( Nov. 13, 2013) at 238. The trial
court later instructed thejury that "[ i]fevidence was not admitted or was stricken from the record, then you are not. to consider it in reaching your verdict." Clerk' s Papers at 53 ( 

### quoting Jury Instruction 1). The instruction also stated that ifthe trial court had " asked you to disregard any 

### evidence, then you must not discuss that evidence during your deliberations or consider it in reaching your verdict." 

### CP at 53-54 (quoting Jury Instruction 1). 

### The jury found Christopher guilty as charged of second degree assault, violation of a domestic violence no contact order, and witness tampering. The trial court denied Christopher' s post - trial motion for arrest ofjudgment and for new trial. The trial court sentenced Christopherto 26 months, imposed discretionary LFOs totaling $1, 409.25, and did not inquire into his current or future ability to pay LFOs. Christopher did not object to the imposition of LFOs. Christopher appeals. 91No. 45694 - 0 -II ANALYSIS Christopher argues that ( 1) SHB 1188 violated the single - subject and subject - in - title requirements of article II, section 19 ofthe Washington Constitution, (2) the prosecutor committed 

### prosecutorial misconduct by eliciting impermissible propensity evidence, and (3) the trial court
erred 

### by failing to consider his current or future ability to pay LFOs.. In addition, Christopher
asserts a number of additional claims in his SAG. We hold that Christopher ( 1) does not have 

### standingto challengethe constitutionalityofSHB 1188 becausehewasconvicted ofseconddegree
assault by strangulation, and SHB 1188 addressed only second degree assault 

### by suffocation, (2) 

### cannotestablish thatthe prosecutor's conduct in elicitingtestimonywas prejudicial,and (3) cannot challenge his LFOs because he waived this issue under RAP 2.5(a) by failing to object at sentencing. We reject Christopher' s additional SAG claims. We affirm his conviction and
sentence. A. Standing 

### We reviewwhether aparty has standing to assert a constitutional violation de novo. State

v. A. W., 181 Wn.

### App. 400, 409, 326 P. 3d 737 (2014). Christopher argues that SHB 1188, which amended RCW 9A.36.021, is unconstitutional because it violates the single - subject and subject - in - title requirements of article II, section 19 of the Washington State Constitution.' Because SHB

Article II, section 19 of the Washington State Constitution provides that: "[ n] o bill shall embrace more than one subject, and that shall be expressed in the title." Article II, section 19 established two specific requirements: ( 1) the single - subject rule and ( 2) the subject - in - title rule. State v. Haviland, 186 Wn. App. 214, 218, 345 P. 3d 831 ( 2015). A violation of either the single - subject orthe subject -

in - title requirement renders the relevant provisions ofthe bill unconstitutional. See id. at 220.
ElNo. 45694 - 0 -II 1188 amended RCW 9A.36.021 to add " suffocation" to the definition ofsecond degree assault,2 

### which Christopher was not convicted for, we hold that Christopher lacks standing to make this argument .

3 To prove standing, Christopher must show ( 1) "` 

### a personal injury fairly traceable to the challenged conduct and 

### likely to be redressed by the requested relief" and (2) that his claim falls
within the zone of interests protected 

### by the statute or constitution provision at issue. State v. Johnson, 179 Wn.2d 534, 552, 315 P. 3d 1090 ( 2014) ( 

### quoting High Tide Seafoods v. State, 106 Wn.2d 695, 702, 725 P. 2d 411 ( 1986)). 

### Ifa party lacks standing for a claim,we cannot reach the
merits of that claim. Johnson, 179 Wn.2d at 552. 

### A defendant may not challenge the constitutionality of a statute unless he or she is harmed by the unconstitutional feature of the challenged statute. State v. Jendrey, 46 Wn. App. 379, 384, 730 P.2d 1374 ( 1986); State v. Lundquist, 60 Wn.2d 397, 401, 374 P.2d 246 ( 1962).

SHB 1188 amended the definition of second degree assault 

### by adding " assault by
suffocation" in RCW 9A.36.021( 1)( g). LAWS of 2011, ch. 166, § 1. But Christopher was
convicted of assault by strangulation under RCW 9A.36.021( 1)( g). Therefore, the amendment to SHB 1188 did not affect him and he cannot show harm from the statutory amendments to SHB

2 The other amendments made 

### by SHB 1188 are not implicated by Christopher' s case. LAWS of 2011, ch. 166. 

### 3 The State contendsthat Christopher maynot challengethe constitutionality ofSHB 1188 forthe first time on appeal because Christopher failed to assert this argument on appeal. Because we hold 

### that Christopher lacks standing to make this argument,we do not address the merits ofthe State' s 

### argument. See, e.g.,State v. Johnson, 179 Wn.2d 534, 555, 315 P.3d 1090 (declining to reachthe merits of a defendant' s claim when the defendant lacked standing to raise the claim), cert. denied, 135 S. Ct. 139 (2014). 5No. 45694 - 0 -II
1188. 

### We hold that Christopher lacks standing to challenge the constitutionality of SHB 1188. We decline to address further his constitutional challenge to SHB 1188. B. " 

### PriorActs" Statement by Prosecution Witness Christopher argues that the prosecutor committed misconduct by eliciting testimony that Bibens had been previously dispatched to the defendant' s residence for a related offense. 

### Assuming without deciding thatthe prosecutor did commit misconduct,we hold that Christopher fails to showthat Bibens' testimony prejudiced him. When a defendant objects to alleged prosecutorial misconduct at trial, a defendant must show that the prosecutor' s misconduct resulted in prejudice that had a substantial likelihood of affecting the 

### jury' s verdict. State v. Emery, 174 Wn.2d 741, 760, 278 P. 3d 653 ( 2012). Misconduct is prejudicial ifthere is a substantial likelihood that it affected thejury verdict. Emery, 174 Wn.2d at 760.

At trial, the prosecutor asked Bibens ifhe knew " Shawn Christopher.." RP (Nov. 13, 2013)
at 234. The officer responded, " I' ve met [Christopher] before on some previous calls at that same location." RP ( Nov. 13, 2013) at 234. Christopher objected, and the trial court sustained his 

### objection. The trial court also told thejury to disregard the officer' s statement. 

### Assuming without deciding that the prosecutor committed misconduct by eliciting this testimony, Christopher fails to show that Bibens' statement had a substantial likelihood of affecting the

### jury verdict. See Emery, 174 Wn.2d at 760. 

### Bibens' testimony would not have led 

### thejuryto convict based on alleged propensity evidence because ample evidence established both the second degree assault and witness tampering charges without relying on Bibens' statement. For the assault charge, the State produced Gutierrez's testimony, which was corroborated by her 0No. 45694 - 0 -II 

### statements to Bibens, her 911 call, and the photographs showing thumb print marks on her neck. 

### For the tampering with a witness charge, the. State produced Gutierrez' s and Hausinger' s testimony, as well as the photographs of Hausinger' s text messages to Gutierrez. Thus, even 

### without Bibens' allegedly improper testimony, a reasonablejury had ample evidence to convict Christopher as charged.

Moreover, the trial court informed the jury to disregard Bibens' statement. Before 

### deliberating, the trial court instructed thejury again to disregard any evidence that the court had either not admitted or had stricken. We presume thejury followed these instructions. See State v. Swan, 114 Wn.2d 613, 661- 62, 790 P. 2d 610 ( 1990). 

### Accordingly,we holdthat ifanymisconduct occurred, Christopher fails to establish that it was so prejudicial that there was a substantial likelihood it affected the verdict.4 C. LFOs 

### Christopher argues that the trial court.erroneously imposed discretionary LFOs in the amount of $

1, 409.25 withoutfirst determining thathe hadthe currentorfuture abilityto paythem. He raises this issue forthe time on appeal, as he did not object at sentencing.

4 Christopher argues that the trial court should have granted his motion for a mistrial and post - trial motion for a new trial because the State violated the motion in limine, which prohibited the State 

### from introducing ER404(b) allegations with regard to Christopher. Aside fromthe assertionthat the trial court should have granted Christopher' s mistrial motion and motion for a new trial, 

### Christopher cites no legal authority and offers no legal analysis in support ofhis contention. We will not consider assignments of error unsupported by citation to authority. RAP 10. 3( a)(6), State v. Bello, 142 Wn.App. 930, 932 n.3, 176 P. 3d 554 (2008). Because Christopher fails to argue this point, Christopher waived this assignment of error and we do not consider it further.

7No. 45694 - 0 -II 

### When an appellant fails to raise an issue below,this court may refuse to review it. RAP 

### 2.5(a).5 A party' s objection or argument preserves an issue only ifthe party actually raises that particular issue before the trial court. See Cotton v. Kronenberg, 111 Wn.App. 258, 273, 44 P.3d 878 ( 2002). In State v. Blazina, 182 Wn.2d 827, 832- 33, 344 P. 3d 680 (2015), our Supreme Court 

### reaffirmed that appellate courts in this state may decline to reviewthe imposition ofdiscretionary LFOs where the defendant failed to objectto the imposition ofLFOs at sentencing. Blazina, 182 Wn.2d at 681. Here, the court sentenced Christopher after our decision in Blazina, wherein we 

### declined to reviewthetrial court's imposition ofdiscretionary LFOs becausethe defendant did not object at sentencing. 

### Statey.Blazina, 174 Wn.App. 906, 911, 301 P.3d 492, remanded by 182 Wn.2d 827 (2015). Because Christopher did not object to the trial court' s imposition of LFOs at 

### sentencing,we decline Christopher's invitation to reviewthis issue forthe firsttime on appeal. D. SAG Claims 

### In his SAG, Christopher claims prosecutorial misconduct (a) in eliciting four statements 

### during Bibens' testimony, (b) in eliciting second - strike offenseevidence during Bibens' testimony, c) in misrepresenting the evidence during closing argument, (d) in filing ofamended charges one
month before trial, ( e) in withholding a witness and withholding discovery, ( f) in coercing a witness, (

### g) in failing to call an available witness, and (h) in vouching for awitness' s credibility.

5 In State v. Jones, 182 Wn:2d 1, 6, 338 P. 3d 278 ( 2014), our Supreme Court recognized that 

### unpreserved sentencing errors " may be raised forthe first time upon appeal because sentencing can implicate ftuldainental principles ofdue process ifthe sentence is based on information that is false, lacks a minimum indicia of reliability, or is unsupported in the record." ( Citation omitted.) But in State v. Blazina, 182 Wn.2d 827, 832-33, 344 P.3d 680 (2015), our Supreme Court declined 

### to applythis exception in the context ofLFOs. We follow our Supreme Court's lead and decline to apply this exception. M.No. 45694 - 0 -II He also claims that the trial court abused its discretion in admitting evidence ofphotographs and 

### evidence ofhis ethnicity in the 911 call. We disagree.

1. Prosecutorial Misconduct Claim a. Bibens' Testimony 

### Christopher identifies four statements elicited by the prosecutor in Bibens' testimonythat he alleges constitute prosecutorial misconduct and are prejudicial: ( 1) that the neighbor' s call
about Christopher and Gutierrez' s fight "was a 911 call of a —a disturbance, a neighbor had called
and basically said my neighbors are arguing again," SAG at 1; ( 2) that " I start to walk up to the — the building, I had been there two, three times before so I knew where it was," SAG at 1; ( 3) that 

### he recognized Christopher at the scene and then later in the courtroom, and (4) that Bibens used Christopher' s, Gutierrez' s, and their roommate's first names. Christopher did not object to any of these four statements at trial. When a defendant fails to object to prosecutorial misconduct attrial, we apply a different, heightened standard of review. Emery, 174 Wn.2d at 760-61. Under this heightened standard of 

### review,the defendant is deemedto havewaived any errorunless he establishes thatthe prosecuting 

### attorney's misconduct "was so flagrant and ill intentionedthat an instruction could not have cured the resulting prejudice." Emery, 174 Wn.2d at 760-61. This heightened standard of review requires the defendant to show that "( 1) ` no curative instruction would have obviated any 

### prejudicial effect on thejury' and (2) the misconduct resulted in prejudice that `had a substantial likelihood of affecting thejury verdict."' 

### Emery, 174 Wn.2d at 761 (quoting State v. Thorgerson, 172 Wn.2d 438, 455, 258 P. 3d 43 ( 2011)). We focus " more on whether the resulting prejudice

OJNo. 45694 - 0 -II

could have been cured," rather than the flagrant of ill intentioned nature of the remark. Emery, 174 Wn.2d at 762. 

### Assuming,without deciding,thatthe elicitation ofthistestimony by Bibens was improper, Christopher fails to meet his burden to show prejudice. And if Christopher had objected, which 

### he did not,the court could have instructed thejury to disregard Bibens' testimony, and a limiting instruction could have cured any prejudice. We assume thatjuries followthe court' s instructions. State v. Weber, 99 Wn.2d 158, 166, 659 P. 2d 1102 ( 1983). This claim fails.

b. Second Strike Offense 

### Christopher claims thatthe prosecutorviolated the trial court' s ruling precluding Gutierrez 

## fromtestifyingtothe significance ofChristophergetting asecond strike offense.6

The trial court stated, And here, as I understand it,the reference is that [Hausinger] said, " He' s in trouble. He has a second strike, and therefore, he needs you to do things." So, ifthat' s what 

### Gutierrez] testifie[d] he said,that's what he said. I' m not going to exclude it. She 

### can't go onto explain what she thought that he meant bythat,orwhat she knew in terms ofhis past record and all that sort ofthing, but she can testify as to what he said. RP ( Nov. 12, 2013) at 56. 

### The trial court ruled that Gutierrez could testify as to what Hausinger 

### told her, but that she could not explain the significance of Christopher getting a second strike if convicted ofviolating the domestic violence no contact order. 

### Christopher points to the following exchange as evidence that the prosecutor violated the trial court' s ruling.
6 The charge ofsecond degree assault against Christopher would be a " second strike" offense under the persistent offender accountability act, RCW 9. 94A.555, . 010, .030(32)( b). 10No. 45694 - 0 -II State]: Gutierrez] State]: Gutierrez] State] : Gutierrez] State]: Gutierrez] : What did [Hausinger] tell you?

That [Christopher] loves me and wants to be with me. 

### Did.the callertell you anything else aboutthe Defendant? That he' s looking at a second strike. What' s — what does that mean? That — Or, why did the caller tell you that? Strike that. Why did the caller — what was the significance ofthat? 

### To me, it meant something bad. RP ( Nov. 12, 2013) at 159. Christopher did not object to the prosecutor' s questioning. 

### The prosecutor expressly asked Gutierrez about the significance ofChristopher getting a second strike offense. The prosecutor' s question to Gutierrez violated the trial court' s ruling and 

### was misconduct. However,because Christopher did not objectto thistestimony attrial,hewaived this issue unless he can establish that the prosecutor's misconduct was so flagrant and ill 

### intentioned that it caused an enduring prejudice that could not have been cured with an instruction 

### to thejury and the misconduct resulted in prejudice that had a substantial likelihood ofaffecting thejury's verdict. Emery, 174 Wn.2d at 761. 

### Bibens did not actually explain the significance of Christopher getting a second strike. There is no evidence thatthe prosecutor's questioningwas so prejudicial that it could not be cured 

### by a4imiting instruction,which was not requested. Moreover, in light ofthe evidence presented, 

### there isno showingthatthis misconduct hadasubstantial likelihood ofaffecting thejury'sverdict. Christopher failed to meet his burden. This claim fails.

c. Closing Argument Christopher claims that the prosecutor misrepresented evidence during closing argument 

### by telling thejury (1) that Christopher had been drinking malt liquor the night ofthe assault and 2) that Christopher and Gutierrez had been dating for five years. Christopher must demonstrate 11No. 45694 - 0 -II 

### that these statements resulted in prejudice that hada substantial likelihood ofaffecting thejury's 

### verdict. Emery, 174 Wn.2d at 760. He fails to show any prejudice. Gutierreztestified that on the night ofthe incident she and Christopher were drinking "juice and, like and actual alcoholic beverage[ s], and there was also Bud Light." RP ( Nov. 12, 2013) at 110. She went on to explain that the "juice" came in a tall can and was " like malt liquor.". RP 

### Nov. 12, 2013) at 111. During the State' s closing argument,the prosecutor indicatedthatthe case 

### was " about a Defendant who was intoxicated that night, been drinking beer, some malt liquor." RP (Nov. 13, 2013) at 385. The prosecutor presented evidence that Christopherwas drinking beer 

### and another beverage like a malt liquor. The inference thatthejury would have taken from these 

### facts wasthat Christopherwas intoxicated. Thejurywould have madethe same inference hadthe prosecutor clarified his statement and stated that the beverage was like a malt liquor. Christopher 

### fails to demonstrate thatthe malt liquor statement in closing argument had a substantial likelihood ofaffecting thejury' s verdict. 

### The prosecutor also indicated in closing argument that Gutierrez had " to overcome the
emotional ties of a five-year relationship that she thought was love at first sight." RP ( Nov. 13, 2013) at 387. 

### Both Gutierrez and Christopher testified to knowing each other or dating for only six months before the assault. The prosecutor' s comment aboutthe parties' five-year relationship would not have negated the other ample evidence produced establishing Christopher' s guilt on the charges of second degree assault, violation of a domestic violence no contact order, and witness tampering. 

### Christopher fails to demonstrate that the reference to the five-year relationship in 

### closing argtunenthad asubstantial likelihood ofaffectingthejury'sverdict. This claim fails.

12No. 45694 - 0 -II I Filing Amended Charges Christopher claims that the State erred 

### by waiting " until the last moment" to add the charges of violation of a domestic violence order and tampering with a witness. SAG at 8. We disagree. The Washington Supreme Court has held that where prosecutorial misconduct results in prejudice to the defendant, dismissal is required pursuant to CrR 8. 3( b). State v. Michielli, 132 Wn.2d 229, 240-43, 937 P.2d 587 ( 1997). 

### In Michielli,the prosecutor inexplicably decided to file 

### four additional charges five days before trial, thereby forcing the defendant to waive his speedy trial rights in orderto prepare a defense to the new charges. Michielli, 132 Wn.2d at 243-44. The 

### State admitted itpossessed all the information necessaryto file all ofthe charges when itfiled the 

### initial information, and it did not obtain more discovery or add witnesses fortrial. Michielli, 132 Wn.2d at 244. 

### The court noted that the only reasonable explanation for the prosecutor' s delay appeared to be harassment of the defendant and the court termed the delay as " governmental mismanagement." Michielli, 132 Wn.2d at 243. Further, the court held that the defendant was 

### prejudiced when the prosecutor delayed adding four serious charges until just days before trial, 

### therebygivingthe defendantthe choice ofgoingtotrial unprepared orwaiving his rightto aspeedy trial and asking for a.continuance. Michielli, 132 Wn.2d at244. Here, unlike in Michielli, the prosecutor did not possess the information to support the State' s additional charges at the time itfiled the initial information against Christopher. Gutierrez notified the police that Christopher had contacted her through Hausinger fromjail and attempted to get her to alter her testimony in late September 2013— at least three weeks.after the State filed its initial information against Christopher. Conflicting testimony exists as to whether the 13No. 45694 - 0 -II 

### prosecutor actually became aware ofthe facts underlying the State's amended information in late September or early to mid October. Christopher' s defense counsel asserted that the prosecutor 

### learned ofthesefacts on oraround September27,2013, but did notprovidethedefensewith notice
of its intent to amend the information until October 15, 2013. However, the prosecutor told the 

### trial court that he did not receive the information supporting the charges ofviolating a domestic
violence no contact order and tampering with a witness Lentil " towards the end of October." RP Nov. 7, 2013) at 4. It is Christopher' s burden to show the prosecutor' s misconduct resulted in prejudice that had a substantial likelihood of affecting the jury' s verdict. Emery, 174 Wn.2d at 760. Based on this record, we hold that Christopher fails to show prosecutorial misconduct. 

### Moreover, even assuming misconduct, which we do not find, Christopher fails to show prejudice. 

### There is no evidence in the record that the prosecutor's act offiling to amend charges on October 17, 2013 placed Christopher in the untenable situation of going to trial unprepared or 

### waiving his speedytrial right andasking foracontinuance. See Michielli, 132 Wn.2dat244. The State filed its original information on August 26, 2013, charging Christopher with second degree assault. On October 17, 2013, the State moved to amend the information to add count 2, charging Christopher with a violation of a domestic violence protection order and count 3, charging Christopher with tampering with a witness. Christopher objected. Christopher' s trial began on November 12, 2013. 

### Therefore, Christopher had exactly four weeks from October 15, 2013 to November 12, 2013 to prepare a defense to the amended charges. The record does not show that 

### Christopherwas prejudiced in preparing a defense.

14No. 45694 - 0 -II


### e. Withholding Exculpatory Evidence 

### Christopher claimsthatthe State committed a Brady' violation bywithholding exculpatory 

### evidence bynot showingthejury apolice carvideo recording thatshowed him asking forpictures
of Gutierrez' s injuries, which would have impeached Bibens' and Gutierrez' s testimony. We disagree. 

### The State has a dutyto disclose material evidence favorable to the defendant. See Brady, 

### 373 U.S. at 87. Brady statesthatthe suppression ofevidence favorable to an accusedviolates due process " where the evidence is material either to guilt or to punishment, irrespective ofthe good 

### faithorbad faith" ofthe State. Brady,373 U.S. at87. The Statehas adutyto learn ofanyfavorable evidence " knowntothe others acting onthe government's behalfinthecase, includingthe police." Kyles v. Whitley, 514 U.S. 419, 437, 115 S. Ct. 1555, 131 L. Ed.2d 490 ( 1995). The evidence that Christopher claimsthe State withheld from him,however, is not included

or referenced in the record on review. On direct appeal, we do not consider matters outside the
record. State v. McFarland, 127 Wn.2d 322, 338 n.5, 899 P.2d 1251 ( 1995). We do not consider this issue further.

f. Withholding a Witness/Discovery Christopher claims the State did not allow his defense counsel to interview Hausinger until the day of trial. But there is no evidence in the record that the State prevented Christopher' s defense counsel from interviewing Hausinger. Christopher' s claim relies on evidence outside of


### Brady v. Maryland,373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 ( 1963) 15No. 45694 - 0 -II
the record. On direct appeal, we do not consider matters outside the record. McFarland, 127 Wn.2d at 338 n.5. We do not consider this claim further. Christopher also claims that the State failed to provide Officer Skeeter' s8 initial report to 

### his defense counsel forthree weeks. The only reference tothis report inthe record is Christopher' s counsel' s argument before the trial court that the prosecution had this report as of September 27, but failed to provide it to her until October 15. However, Christopher fails to demonstrate how 

### the State' s delayinproviding Skeeter's reportresulted inprejudicethathadasubstantial likelihood
of affecting the jury's verdict. Emery, 174 Wn.2d at 760. He had the opportunity to admit the 

### report attrial and make any admissible arguments beneficial to his position. Therefore,this claim fails. 

### g. Coercing Hausinger 

### Christopher claims that the State coerced Hausinger into testifying against Christopher by 

### threatening him with charges for tampering with a witness and gave Hausinger improper preferential treatment to testify against him. But the record contains no evidence to support Christopher' s claim of coercion or that the State gave Hausinger preferential treatment for testifying. McFarland, 127 Wn.2d at 338 n.5. We do not consider this claim further.

h. Failure to Call Available Witness Christopher claims that the State' s failure to call Skeeter, when she was an available witness, 

### was a deliberate ploy to hide exculpatory evidence and constitutes prosecutorial misconduct. Butthere is no information inthe recordthat Skeeterwas an available witness. Under

8 Officer Skeeter' s first name is not contained in the record on appeal. 10No. 45694 - 0 -II
RAP 10. 3( a)( 5), 

### Christopher must cite to the record for every factual statement he presents for review. Without such citation and evidence in the record supporting Christopher' s contention,we do not consider this issue further. McFarland, 127 Wn.2d at 338 n.5.

i. Vouching for a Witness' s Credibility Christopher claims that the prosecutor impermissibly vouched for Hausinger' s credibility

as a witness 

### during closing argument. We agree that the prosecutor vouched for Hausinger' s 

### credibility, but we hold that Christopher waived this claim by failing to show that an admonition 

### to thejury,which he failed to request,would not have cured the error. A prosecutor commits improper vouching by expressing a personal opinion as to a
witness' s veracity. Thorgerson, 172 Wn.2d at 443. Whether a witness testifies truthfully is an issue entirely within the province of the trier of fact. Thorgerson, 172 Wn.2d at 443. But a prosecutor' s wide latitude to argue inferences from the evidence includes arguing inferences regarding witness credibility. Thorgerson, 172 Wn.2d at 448. In addition, the "` failure to object to an improper remark*constitutes a waiver of error unless the remark is so flagrant and ill 

### intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury."' 

### Thorgerson, 172 Wn.2d at 443 ( quoting State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 ( 1994)). 

### Christopher cites to the following section ofthe prosecutor's closing argument discussing Hausinger' s demeanor while testifying:



### Now, the Defendant got up on the stand today and he denied that he told Jacinto Hausinger to do that, but you saw Mr. Hausinger. The last thing Mr. Hausinger wanted to do today was stand up on this stand and testify. He didn' t want to admit that the Defendant told him to contact Ms. Gutierrez. That was like 

### pulling teeth out ofhim, but he did because he was under oath and he was telling 17No. 45694 - 0 -II 

### the truth. Now he could have also changed his story, he could have denied it.... But he 

### finally came clean and said, " Yes." RP ( Nov. 14, 2013) at 393- 94 ( emphasis added). 

### During rebuttal, the prosecutor told thejury, Mr. Hausinger, you can make your own decisions on his credibility and what he got up here and
and said today." RP ( Nov. 14, 2013) at 418. In State v. Jackson, 150 Wn.App. 877, 883- 84, 209 P.3d 553 ( 2009), 

### one ofthe key issues

was whether to believe the police officers or a defense witness. During closing arguments, the prosecutor stated twice that the police testified accurately. Jackson, 150 Wn. App. at 884. We 

### heldthatthe prosecutor did not vouchforthe officers' credibility because, looking atthe argument 

### in context, the prosecutor reminded - the jury that it was the sole judge of credibility and then outlined the evidence, which could support the jury's conclusion that the officers were credible. Jackson, 150 Wn.App. at 884-85.. 

### Here, one ofthe keytrial issueswaswhetherto believe Hausinger'or Christopher regarding whether Christopher directed Hausinger to call Gutierrez to persuade her to change her story. 

### During closing argument, the prosecutor expressly told thejury that Hausinger "was under oath
and he was telling the truth." RP (Nov. 14, 2013) at 393- 94 ( emphasis added). In this context, the 

### prosecutor engaged in impermissible vouching because it directly commented on Hausinger's veracity. These statements constitute prosecutorial misconduct. But because Christopher did not objectto the prosecutor' s statements, he waived any error. 

### He has not shown that any misconduct was so flagrant and ill intentioned that it "cause[d] an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." Thorgerson, 172 Wn.2d at 443. 

### Here, an admonition to the jury to disregard the
18No. 45694-0- I1



### prosecutor' s,argument would have likely neutralized any prejudice arising from the prosecutor's misconduct. This claim fails.

2. Photographic Evidence Christopher claimsthatthe trial court's admission ofphotostaken byGutierrez' s roommate was improper because Gutierrez was not a credible source for the pictures and they could have been altered. We disagree. We review a trial court' s decision to admit or exclude evidence for abuse of discretion. Diaz v. State, 175 Wn.2d 457, 462, 285 P. 3d 873 ( 2012). A trial court abuses its direction when it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 ( 1971). The proponent ofphotographic evidence must authenticate the photographs before the trial
court may admit it. ER 901( a). To do so, the proponent must introduce "` evidence sufficient to support afinding that the matter in question is what its proponent claims."' State v. Bradford, 175 Wn. App. 912, 928, 308 P.3d 736 ( 2013) ( quoting ER 901( a)), review denied, 179 Wn.2d 1010 2014).At trial, Gutierrez testified that she and Christopher' s roommate, Amos Carpenter,tookthe. three photographs of Gutierrez' s neck two to three days after the assault. Gutierrez identified the three photographs and testified that the photographs were an accurate depiction ofwhat her neck 

### looked like. Gutierrez's testimonywas sufficientto demonstratethat the photographs were actual 

### photographs taken ofher neck and were properly authenticated as required under ER 901(a).

19No. 45694 - 0 -II
3. Christopher' s Ethnicity Christopher also claims that the State should have edited Gutierrez' s 911 call in which she 

### identifies him as a Native American, so that the jury was not informed that he was a Native American. He claims that segments ofthe population believe Native Americans become violent 

### when drinking liquor. But he did not object based on his ethnicity; Christopher objected only to 

### admitting the 911 call as an excited utterance or a present sense impression under ER 803(a)(2). Because Christopher did not object to the testimony that he now complains ofon appeal and does
not assert that the alleged error was a " manifest error affecting a constitutional right," we decline to address this issue further under RAP 2.5( a). CONCLUSION We hold that Christopher ( 1) does not have standing to challenge the constitutionality of 

### SHB 1188 because he was convicted of second degree assault by strangulation, and SHB 1188
addressed only second degree assault by suffocation; (2) cannot establish a claim ofprosecutorial 

### misconduct or prejudice from any claimed misconduct; and (3) waived his challenge to the trial
court' s imposition of LFOs under RAP 2. 5( a). We reject Christopher' s additional SAG claims.

20No. 45694 - 0 -II We affirm Christopher' s 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 in accordance with RCW 2.06.040, it is so ordered.

I concur: M' SUTTON, J.

21No. 45694 - 0 -II BJORGEN, J. ( concurring) — 

### Forthe reasons set out in my dissent in State v. Lyle, _ P. 3d _, No. 46101 -3 -II, 2015 WL 4156773 ( Wash. Ct.App. July 10, 2015), I would reach Shawn Christopher' s legal financial obligations' challenge, even though he did not raise it during 

### sentencing. However,the majority in Lyle, a published decision, reached a contrary conclusion. Lyle, P. 3d , No. 46101 -3 -II, 2015 WL 4156773 ( Wash. Ct.App. July 10, 2015). Unless 

### Lyle is overturned or its bases questioned by subsequent case law, I shall observe its result under principles of stare decisis. Therefore, I concur in this decision with the reservation here expressed.

BJC , GEN, -

22