IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OFWASHINGTON, No. 76074-2-I

Respondent, v. DIVISION ONE ONELIO CARDONA-HERNANDEZ, UNPUBLISHED OPINION

Appellant. FILED: April 1, 2019
LEACH, J.

— Onelio Cardona-Hernandez appeals the high-end standard range sentence and conditions ofcommunity custodythe trial court imposed after his conviction for second degree rape.1 He claims that the sentence was a “penalty” that violates his Fifth Amendment right against self-incrimination.2 Because Cardona-Hernandez voluntarily spoke at his sentencing, the sentence falls within the standard range, and the challenges to conditions of community custodyfail, we affirm the trial court. BACKGROUND The trial courtconvicted Cardona-Hernandez of rape in the second degree and two counts of burglary in the first degree with sexual motivation. Cardona

1 The Supreme Court of Washington directed this court to reconsider its April 16, 2018, opinion in light of State v. Hal Minh Nguyen, 191 Wn.2d 681, 425 P.3d 847 (2018). After reconsideration, this court withdraws its April 16, 2018, opinion and replaces itwith this opinion. 2 U.S. CONST. amend. V.No. 76074-2-I I 2

Hernandez also pleaded guiltyto a reduced charge ofcriminal trespass in thefirst degree with sexual motivation. At sentencing, Cardona-Hernandez faced a standard range for the rape conviction of 146 to 194 months. For the two counts of burglary, he faced a standard range of57 to 75 months. The State recommended the high end ofthe standard range forthe rape conviction. At the sentencing hearing, the trial court told Cardona-Hernandezthat he had the rightofallocution butthat he also had the “absolute righttosay nothing.” Cardona-Hernandezchosetospeak. He explained that he refused to plead guiltyand take a plea offer because he was innocent. AfterCardona-Hernandez’s statement, thetrial court imposed the high-end term, 194 months, forthesecond degree rape. Thetrial courtconsidered a number of factors before deciding to impose the high-end term. These included (1) the defense’s argument of lack of relative force, (2) the nature ofthe crime, including exploiting his employerforthe purpose ofvictimizing, (3) the nature ofthe crime
scene (located in the University Districtwhich is a place offreedom and innocence where the defendant undoubtedly observed vulnerability), (4) the vulnerability of the victim given her infirmity, and (5) “the defendant’s apparent lack of remorse and choice here rather than to apologize, to use this as an opportunity to cross examine one of his rape victims.” The trial court sentenced Cardona-Hernandez to 66 months on the two counts ofburglary, concurrentwith his sentenceforthe rape count. The trial court also imposed lifetime communitycustody after Cardona-Hernandez’s release.

-2-No. 76074-2-I I 3

Cardona-Hernandezappeals. ANALYSIS Standard Range Sentence Cardona-Hernandez challenges the standard sentence range for the rape conviction. UndertheSentencing ReformActof 1981 (SRA),3acriminal defendant generally may not appeal the imposition ofthe standard sentence range.4 But a defendant may appeal a standard range sentence when a sentencing court does not comply with procedural requirements of the SRA or constitutional requirements.5 Cardona-Hernandez contends that the trial court violated his Fifth Amendment right against self-incrimination by considering his “remorseless” allocution when imposing the high end ofthe standard range sentence. The Fifth Amendment prevents a person from being “compelled in any criminal caseto be a witness against himself.”6 A defendant may assert the right against selfincrimination in any proceeding, “civil or criminal, formal or informal, where the
answers might incriminate him in future criminal proceedings.”7 This includes a sentencing hearing.8

~ Ch. 9.94 RCW.

~ RCW 9.94A.585(1).

~ Statev. Osman, 157Wn.2d 474, 481-82, 139 P.3d 334 (2006). 6 U.S. CONST. amend. V; see McKune v. Lile, 536 U.S. 24, 35, 122 5. Ct. 2017, 153 L. Ed. 2d 47(2002).

~ Lefkowitzv. Turley, 414 U.S. 70, 77,94 S. Ct. 316,38 L. Ed. 2d 274 (1 973). 8 See Mitchell v. United States, 526 U.S. 314, 325-27, 119 S. Ct. 1307, 143 L. Ed. 2d 424 (1999). -3-No. 76074-2-1/4

But no one compelled Cardona-Hernandez to speak. The trial court told Cardona-Hernandez that he had the right to allocution and the right to remain silent. The judge’s advice eliminates any claim of any compulsion to selfincrimination.9 Cardona-Hernandez chose to speak after the court told him he could remain silent. By choosing to speak, he waived his Fifth Amendment right. “Trial courts may not use a defendant’s silence or continued denial of guilt
as a basisforjustifying an exceptional sentence.”1° Here, the parties concedethat
no Washington case law directly addresses the issue of whether a court can consider a denial of guilt when imposing a standard range sentence. Cardona Hernandez relies on a Montanadecision, Statev. Shreves.11 There, the defendant maintained his innocence throughout the trial and chose to remain silent during sentencing.12 Thetrial court imposed the 100-yearsentence recommended bythe State.13 The trial court imposed this sentence in large part dueto the defendant’s lack of remorse and equated the defendant’s silence to a lack of remorse.14 The Montana Supreme Court held thatthetrial court“improperly penalized Shrevesfor maintaining his innocence pursuant to his constitutional right to remain silent.”15 But the court also made clearthat a trial court can consider a defendant’s lack of

~ United Statesv. Washington, 431 U.S. 181, 188, 97 S. Ct. 1814,52 L. Ed. 2d 238 (1977) (stating when a respondent was explicitly advised of the right to remain silent, “This advice also eliminated any possible compulsion to selfincrimination which might otherwise exist.”). 10 Statev. Garibay, 67Wn. App. 773, 782, 841 P.2d 49 (1992). 11 2002 MT 333, 313 Mont. 252, 60 P.3d 991. 12 Shreves, 2002 MT 333, ~ 6. 13 .Shreves, 2002 MT 333, ~ 3. 14 Shreves, 2002 MT 333, 

### ¶20. 15 Shreves, 2002 MT 333, 

### ¶20.
-4-No. 76074-2-lI 5

remorse during pretrial, attrial, or posttrial as a sentencing factor.16 Butthe court prohibited asentencing courtfrom drawing “a negative inferenceoflackofremorse from the defendant’s silence at sentencing where he has maintained, throughout the proceedings, that he did not commit the offense of which he stands convicted.”17 We distinguish Shreves. Cardona-.Hernandez did not remain silent at sentencing. So the trial court did not penalize him by drawing an impermissible inference from his silence. Cardona-Hernandez cites no authority for the proposition thatthe trial court must ignore the content of his allocution statement when imposing sentence. Once Cardona-Hernandez chose to speak, the Fifth Amendment did not require thatthe trial court ignore what he had to say. For an additional reason to affirm, the State relies on United States v. Klotz,18 where the Seventh Circuit Court ofAppeals established that a sentence within the federal sentencing guidelines is not presumed to be a penalty. The defendant in Klotzwanted the courtto setthe lower limit as the benchmark and to find a highersentence within the range as a penalty.19 The “range itself isthe apt starting point, and choices within the range cannot readily be assigned particular causes.”2° The court stated it was properto impose a sentence which was near the upperlimitofthe guidelines range, based in parton the refusal ofthe defendant

16 Shreves, 2002 MT 333, ~ 21. 17 Shreves, 2002 MT 333, ~ 22. 18943 F.2d 707, 71 0-11 (7th Cir. 1991). 19 Klotz, 943 F.2d at 710. 20 Klotz, 943 F.2d at 710.
-5-No. 76074-2-I I 6

to assist authorities in investigations, and did not penalize the defendant for exercising his constitutional rightto remain silent.21 Becausewe conclude that no Fifth Amendment violation occurred, we do not address the State’s argument. Community Custody Conditions Cardona-Hernandezchallengesthree conditions ofcommunitycustody. He claimsthatthetrial courtexceeded itsstatutoryauthorityby imposing onecondition that is not crime related and two that are unconstitutionally vague. This Court reviewsthetrial court’sstatutoryauthorityto impose communitycustodyconditions de novo.22 (1) Crime Related Cardona-Hernandezcontendsthatcondition 10 should be stricken because the condition is unrelated to the offense of his conviction.23 Condition 10 states, ‘Do notentersex-related businesses, including: X-rated movies, adultbookstores, strip clubs, and any location where the primary source of business is related to sexually explicit material.” Atrial court has the authorityto impose “crime-related prohibitions” as a condition of community custody.24 The SRA defines crimerelated prohibition as “an orderofthe court prohibiting conductthat directly relates to the circumstances of the crime for which the offender has been convicted.”25

21 Klotz, 943 F.2d at 710-11. 22 Statev. Johnson, 180 Wn. App. 318, 325, 327 P.3d 704 (2014). 23 Cardona-Hernandez did not challenge the community conditions below, but defendants may challenge erroneous sentences for the first time on appeal. Statev. Bahl, 164 Wn.2d 739, 744, 193 P.3d 678 (2008). 24 RCW 9.94A.703(3)(f). 25 RCW 9.94A.030(10).
-6-No. 76074-2-I I 7

“‘Directly related’ includes conditions that are ‘reasonably related’ to the crime.”26 “This court reviews the factual bases for crime-related conditions under a ‘substantial evidence’ standard ~“27 “Community custody conditions are ‘usually upheld if reasonably crime related.”28 Our Supreme Court recently considered the validity of a similar condition imposed on a defendantconvicted oftwo counts ofrape in the second degree and found the condition sufficiently crime related even though the record included nothing suggesting thatthe defendant met hervictim in a “sex-related business” or that her presence in this type of business played any role in her crimes.29 The court found that the condition related to the defendant’s “inability to control her urges and impulsivities

. . . “ and that she would “struggle to rehabilitate from her sexual deviance so long as shefrequents ‘sex-related businesses.”30 Itfound that the trial court did not abuse its discretion by imposing the challenged restriction. Becausewe cannot distinguish this case, we similarly concludethatthe trial court did not exceed its authority by imposing condition 10. (2) Vagueness Cardona-Hernandez contends that condition 5, regarding dating relationships, and condition 11, regarding sexually explicit material and conduct, 26State v. Irwin, 191 Wn. App. 644, 656, 364 P.3d 830 (2015) (citing State v. Kinzle, 181 Wn. App. 774, 785, 326 P.3d 870 (2014)).

27 Irwin, 191 Wn. App. at 656. 28State v. Norris, 1 Wn. App. 2d 87, 97, 404 P.3d 83 (2017) (quoting State v. Warren, 165Wn. 2d. 17, 32, 195 P.3d 940 (2008)), rev’d on othergrounds, State v. Hai Minh Nguyen, 191 Wn.2d 681, 687, 425 P.3d 847 (2018).

29 Hai Minh Nguyen, 191 Wn.2d at 687. 30 Hai Minh Nguyen, 191 Wn.2d at 687.
-7-No. 76074-2-I I 8

are unconstitutionally vague. Under the Fourteenth Amendment to the United States Constitution and article I, section 3 oftheWashington Constitution, citizens have the right to fair warning of proscribed conduct.31 A community custody condition is unconstitutionallyvague if it (I) does not define the prohibited conduct with sufficient definiteness that ordinary people can understand what conduct is proscribed or (2) does not provide ascertainable standards to protect against arbitrary enforcement.32 A community custody condition is unconstitutionally vague if it does not meet eitherofthese requirements.33 The court considers the context ofthe term to determine whetherthe term is unconstitutionally vague.34 When a statute does not define a term, the court may consider the plain and ordinary meaning from a standard dictionary.35 A community custody condition is sufficiently definite “[i]f ‘persons of ordinary intelligence can understand what the [law] proscribes, notwithstanding some possible areas ofdisagreement.”36 Cardona-Hernandezcontends condition 5, which requires him to inform the CCC and sexual deviancy treatment provider of “any dating relationship,” is unconstitutionally vague. Condition 5 states, “Inform the supervising CCC and

31 BahI, 164Wn.2d at 752 (citing City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990)).

32 BahI, 164Wn.2d at 752-53 (quoting Douglass, 115 Wn.2d at 178).

~ BahI, 164Wn.2d at 752-53.

~ BahI, 164Wn.2d at 754 (citing Douglass, 115 Wn.2d at 180).

~ BahI, 164Wn.2d at754 (citing Statev. Sullivan, 143Wn.2d 162, 184-85, 19 P.3d 1012 (2001)).

36 BahI, 164Wn.2d at754 (second alteration in original) (quoting Douglass, 115 Wn.2d at 179). -8-No. 76074-2-I /9

sexual deviancy treatment provider of any dating relationship. Disclose sex offender status prior to any sexual contact. Sexual contact in a relationship is prohibited until the treatment providerapproves ofsuch.” Cardona-Hernandez contends that this condition does not give adequate notice of how to avoid a sanction and does not prevent arbitrary enforcement. Cardona-Hernandez cites a federal case, United States v. Reeves,37 as support for his argument. But recently, in Norris, this court held that the term “dating relationship” is easily distinguishable from the condition reviewed in Reeves.38 This court concluded that “[t]he requirement to report a dating relationship’ does not contain highly subjective qualifiers like ‘significant’ and romantic.”39 Therefore, the condition in Norriswas “neither unconstitutionallyvague norsubject to arbitrary enforcement.”4° Our decision in Norris controls. Condition 5 is not unconstitutionallyvague. Cardona-Hernandez also contends that condition 11 is unconstitutionally vague. Condition 11 states, “Do not possess, use, access or view any sexually explicit material as defined by RCW 9.68.130 or erotic materials as defined by RCW 9.68.050 or any material depicting any person engaged in sexually explicit conduct as defined by RCW 9.68A.011(4) unless given prior approval by your sexual deviancy provider.”

~~591 F.3d 77 (2d Cir. 2010). 38 Norris, 1 Wn. App. 2d at 94-95.

~ Norris, I Wn. App. 2d at 95. 40 Norris, I Wn. App. 2d at 95.
-9-No. 76074-2-1/10

Cardona-Hernandez notesthatthis condition implicates materials protected bythe FirstAmendment. When a community custody condition involves material having First Amendment protection, a vague condition can have a chilling effect
on the exercise of FirstAmendment rights.41 Any restriction on protected materials that a defendant may access or possess must be clear and “must be reasonably necessary to accomplish essential state needs and public order.”42 “Thus, conditions maybe imposed that restrictfreespeech rights ifreasonablynecessary, butthey must be sensitively imposed.”43 Cardona-Hernandez relies on State v. Bahl,44 where our Supreme Court found a condition restricting access to pornography unconstitutionally vague. Cardona-Hernandez correctly notes thatthis condition did not define pornography
or reference the term in another statute.45 But the same court found lawful a condition prohibiting the defendant from frequenting establishments whose primary business pertains to sexually explicit orerotic material.46 Becausethis condition did notdefine “sexuallyexplicit” or“erotic,”the court looked to dictionary definitions and statutory definitions to help it assess whether the conditions was impermissibly vague.47 The court did not decide whether the definition alone would provide sufficient notice to overcome a vagueness

41 Bahl, 164Wn.2d at 753. 42 BahI, 164Wn.2d at 757-58.

~ Bahl, 164Wn.2d at 757. ~~164Wn.2d 739, 743, 193 P.3d 678 (2008).

~ Bahl, 164Wn.2d at 743. 46Bahl, 164Wn.2d at 759.

~ BahI, 164Wn.2d at 759.
-10-No. 76074-2-I / 11

challenge.48 But the court stated that the available definition “bolsters our conclusion that ‘sexually explicit,’ in the context used, is not unconstitutionally vague.”49 Similarly, the statutorydefinitions referred to in condition 11 supportthe conclusion that “sexually explicit material,” “erotic material,” and “sexually explicit conduct” are not unconstitutionallyvague.50 Unlike the condition upheld in BahI, condition 11 incorporates statutory definitions. With these definitions, an ordinary person would understand the conduct proscribed. Also, the condition contains explicit standards for its application. Thus, we conclude condition 11 is not unconstitutionally vague. NEWJUDGE REQUEST Cardona-Hernandez also requests assignment to a new judge for resentencing. A party may seek reassignment forthe firsttime on appeal where thejudgewill exercise discretion on remand regarding thevery issuethattriggered the appeaL51 But this remedy is limited, and reassignment is not generally available becausethe appellate opinion mayoffersufficientguidanceto effectively limit trial court discretion on remand.52 Because we conclude that the trial court did not err in sentencing Cardona-Hernandez and remand forthe limited purpose of striking one community custody condition, we deny Cardona-Hernandez’s request.
48 BahI, 164Wn.2d at 760.

~ BahI, 164Wn.2d at 760. 50 See Soundqarden v. Eikenberrv, 123Wn.2d 750, 758-59, 871 P.2d 1050 (1994) (finding theterm “erotic” underRCW9.68.050 not unconstitutionallyvague). 51 State v. Solis-Diaz, 187Wn.2d 535, 539-40, 387 P.3d 703 (2017). 52 Solis-Diaz, 187Wn.2d at 539-40.
—11—No. 76074-2-I /12
STATEMENT OFADDITIONAL GROUNDS FOR REVIEW Cardona-Hernandez raises several additional groundsfor review. None of his claims have merit. Jury Instructions Cardona-Hernandezchallenges three ofthe court’s instructions to thejury. We reviewchallenged jury instructions de novo.53 Consent First, Cardona-Hernandez challenges the court’s instruction that “[c]onsent
means that at the time ofthe act of sexual intercourse there are actual words or conduct indicating freely given agreementto have sexual intercourse.” He claims thatthis instruction improperlyshifted the burden ofproof. The due process clause ofthe Fourteenth Amendmentto the United States Constitution requires the State to prove every element of a crime beyond a reasonable doubt.54 Instructing the jury in a manner that relieves the State of this burden is reversible error.55 Our Supreme Court has held that consent negates the element offorcible compulsion ofsecond degree rape.56 Thus, a courtviolates a defendant’s due process rights when it requiresthe defendantto prove consentbya preponderance ofevidence.57 But, here, the instructions did not improperly shiftthe burden of proof. The case that Cardona-Hernandez relies on, State v. W.R.,58 involves the formerversion of

~ State v. Pirtle, 127Wn.2d 628, 656, 904 P.2d 245 (1995). 54.State v. W.R., 181 Wn.2d 757, 762, 336 P.3d 1134 (2014).

~ Pirtle, 127Wn. 2d at 656. 56WR 181 Wn.2d at 763. 57W.R., 181 Wn.2d at 762-63. 58 181 Wn.2d 757, 336 P.3d 1134 (2014).
-12-No. 76074-2-I / 13



### WPIC 18.25,~~ which did shift the burden. But, unlike in W.R., the court’s instructions here did not place the burden of showing lack of consent on the defendant. The court instructed thejurythatthe State had the burden to showthat the victim was incapable of consent by reason of being physically helpless. The court properly instructed thejurythatthe State had to prove each element of rape in the second degree beyond a reasonable doubt. KnowinglyEntered Cardona-Hernandez also challenges the trial court’s elements instruction for residential burglary. He specifically contends that the court erred by omitting
an elementthat he “knowingly entered” a dwelling. Failure to instruct thejury on every element of a crime is reversible error because such an error relieves the Stateofits burden to prove everyelementbeyond a reasonable doubt.6° “Aperson is guilty of residential burglary if, with intentto commit a crime against a person or propertytherein, the person enters or remains unlawfully in a dwelling otherthan
a vehicle.”61 Here, the trial court gave the statutory elements ofthe offense for burglary in the first degree.62 Knowing entry is not an element of burglary in the first degree.63 The court’s instruction was proper. Commenton the Evidence Next, Cardona-Hernandez challenges this limiting instruction:

~ 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 18.25, at288 (3d ed. 2008). 60 State v. Byrd, 125Wn.2d 707, 713-14, 887 P.2d 396 (1995). 61 RCW 9A.52.025(1). 62RCW 9A.52.025(1). 63 RCW 9A.52.025. 

### -13-No. 76074-2-1/14
Certain evidence has been admitted in this case for bnly a limited purpose. This evidence relatesto uncharged, alleged victims [E.R., C.H., E.S., and K.S.J. This evidence may be considered by you onlyforthe purposes ofknowledge, opportunity, and considering whether the defendant’s alleged conduct is part of a common scheme orplan foreach count. You may notconsideritforanyother purpose. Any discussion ofthe evidence during your deliberations must be consistentwith this limitation. Cardona-Hernandezcontendsthatthis instruction is an impropercommenton the evidence. Underarticle IV, section 16 oftheWashington Constitution, judges may not commentto thejury on matters

## offact or conveyto thejury his or heropinion about the testimony.64 Here, the court’s instruction does not assume any facts have been established by the evidence. It merely limits the jury’s use of some evidence,. We reject Cardona-Hernandez’s contention. Hearsay Next, Cardona-Hernandez contends that the court improperly admitted a hearsay statement in K.L.’s deposition testimony. Cardona-Hernandez does not identifythe challenged statement inthe record. We are notobligated to search the record in support of his claim.65 Sufficiency of Evidence Cardona-Hernandez contends thatthe evidence was insufficientto convict him of count 4, first degree burglary with sexual motivation, for his conduct with respectto K.L. We reviewchallengestothe sufficiencyofthe evidence de novo.66

64 State v. Dewey, 93Wn. App. 50, 58-59, 966 P.2d 414 (1998). 65 RAP 10.10(c). 66 State v. Merritt, 200 Wn. App. 398, 408, 402 P.3d 862 (2017), affd, Wn.2d

, 434 P.3d 1016 (2019). -14-No. 76074-2-I /15

When reviewing the sufficiencyofevidence, weviewthe evidence in the light most favorabletothe State and askwhetherany rational finderoffact could havefound guilt beyond a reasonable doubt.67 To convict Cardona-.Hernandez of burglary in the first degree, the State must prove that he acted with intentto commit a crime against a person or propertytherein, entered or remained unlawfully in a building and, while in the building or in immediate flight therefrom, he was armed with a deadlyweapon orassaulted any person.68 Cardona-Hernandez first contends that the identification by K.L. is insufficientto show hewasthe person who assaulted her; although she picked him from a montage, she was unable to identify him for certain in the courtroom. The Seattle Police Department had K.L. identifythe person who assaulted herout ofa montage of six photographs. K.L. picked out Cardona-Hernandez. She later stated thatshe did not recognize the defendant in the courtroom but believed that
was due to the length of time since the incident. Notwithstanding K.L.’s later uncertainty, the trier of fact could reasonably find that K.L.’s initial identification
was sufficientto provethat Cardona.-Hernandez assaulted K.L.69 Cardona-Hernandezalso contendsthat he did notassaultany person. The court instructed the jury that “[am assault is an intentional touching of another person that is harmful or offensive regardless of whether any physical injury is

67 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). 68 RCW 9A.52.020. 69 Cardona-Hernandezalso points outthatthere is no DNAevidenceto link him to count 4. But evidence of K.L.’s identification is sufficient to link him to the crime. -15-No. 76074-2-I /16

done to the person.” Here, K.L. testified thatthe nextthing she remembered after falling asleep was someone spooning her from behind, kissing her neck, and groping herbreast. She later identified Cardona-Hernandezasthat person. Thus, the record contains sufficient evidence that he assaulted K.L. Prosecutorial Misconduct Cardona-Hernandezcontendsthat prosecutorial misconductduring closing arguments deprived him of a fair trial. To establish prosecutorial misconduct, Cardona-Hernandez must showthe prosecutor’s comments were “both improper and prejudicial in the context ofthe entire record and the circumstances attrial.”70 Cardona-Hernandez hasthe burden to provethat“‘there is a substantial likelihood [that] the instances of misconduct affected the jury’s verdict.”71 We review allegations ofprosecutorial misconduct underan abuse ofdiscretion standard.72 Cardona-Hernandez contends that a comment made by the State during closing arguments bolstered the witnesses’ credibility and mischaracterized the role ofthejury. The prosecution stated,

With respect to [K.L.] and [CR.], I suspectthe primary issue will be identity. Was itthe defendantwho came into [C.R.]’s house? Was itthe defendantwhowas spooning [K.L.] and kissing her neck? I suggest to you that even ifall you had was the testimony of [S.M.] and [C.R.] and [K.L.], the DNA results, and the montage picks of [CR.] and [K.L.], thatwould be morethan sufficientevidenceforyou to find the defendantguilty as charged in counts three and four.
70 State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011) (internal quotation marks omitted) (quoting Statev. Magers, 164Wn.2d 174, 191, 189 P.3d 126 (2008)). 71 Maqers, 164 Wn.2d at 191 (alteration in original) (quoting Pirtle, 127 Wn.2d at 672). 72Thorqerson, 172 Wn.2d at460. -16-No. 76074-2-I / 17

The defense objected. The court overruled the objection but reminded thejurors “that the lawyer’s arguments are not themselves evidence and that the law is defined bythe court in its instruction to thejury.” Assuming the court improperly overruled this objection, Cardona-Hernandez cannot show prejudice. The court followed this sole incident ofclaimed misconductwith a curative comment. There is nota substantial likelihood thatthe comment affected thejury’s verdict. Motion to Suppress and Sever Finally, Cardona-Hernandez contends that the trial court abused its discretion because itdid notgrantthe motion to suppress and the motion to sever. But defendants must, at the least, inform the court of the nature of the claimed error.73 Because Cardona-Hernandez does not, we do not considerthis claim. CONCLUSION We affirm Cardona-Hernandez’s sentence. 

# ~LJ
WE CONCUR:

I 

# V

RAP 10.10(c). -17-