IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,

v. BRYAN EDWARDS CORBETT, JR., Appellant. No. 72453-3-1 DIVISION ONE

UNPUBLISHED FILED: February 29. 2016
Cox, J. — Bryan Corbett appeals his judgment and sentence based on convictions ofburglary, two counts offelony violation of a court order, and fourth degree assault. Thejury also found by special verdict that certain ofthese crimes were aggravated domestic violence offenses. Here, the court properly 

### gaveWPIC 4.01 as the reasonable doubt instruction. The courtdid not abuse its discretion in admitting under ER 404(b) evidence of his acts of prior domestic violence. Corbett fails in his burden to show that the State committed misconduct requiring reversal. The court commented on the evidence in a jury instruction, but the record affirmatively shows thatthis errordid not prejudice Corbett. There was no cumulative error requiring reversal. And finally, the State 

### properly concedes thatthis record fails to demonstrate the trial court's reasoning inimposing a lifetime sentencing condition prohibiting Corbettfrom contactwithNo. 72453-3-1/2 his son. We affirm the convictions, but strike the sentencing condition imposing the lifetime sentencing condition regarding contactwith Corbett's son. We remand with instructions. The State charged Bryan Corbett with several domestic violence crimes. These charges arose from the same incident on February 2, 2014, Super Bowl Sunday. C.H. testified at trial that she was with Corbett in her apartment on that day. Corbett and C.H. have a son named J.N. After an argument, she took J.N. and fled to the apartment ofher neighbor, Suldan Mohamed. Corbettfollowed and forced his way into Mohamed's apartment. According to testimony attrial, 

### Corbettpicked up a knife block on the kitchen counter and threw it at her. The knife block struck their son, J.N. He lost consciousness. Mohamed called 911 to obtain medical assistance for J.N. During his call, Mohamed identified the assailant as "Bryan Nichols," based on what C.H. told 

### him. Corbett also goes bythe name "Bryan Nichols." Medical personnel and police responded to the scene. C.H. and J.N. wentto the hospital. There, C.H. told a doctor and a social workerfrom Child Protective Services (CPS) that Corbettwas responsible for her 

### and J.N.'s injuries. But to protectCorbett, C.H. initiallytoldthe investigating officer that a man named "James Dixon" had assaulted her. 

### The jury convicted Corbett. Thetrial court entered itsjudgmentand sentence on the jury verdicts. The sentence included a lifetime ban on Corbett having contact with J.N.No. 72453-3-1/3 Corbett appeals. REASONABLE DOUBT INSTRUCTION Corbett argues thatthe reasonable doubt instruction given in this case, 

### WPIC 4.01, is unconstitutional. Because controlling case authority directs the
use of this standard instruction, we rejectthis argument. As a preliminary matter, the State argues that Corbett cannot raise this issue for the first time on appeal. But an instruction that misstates the reasonable doubt standard is a manifest constitutional errorthat may be raised 

### forthe first time on appeal.1 Thus, we address his argumentto the extent necessary. Here, the trial court instructed thejury on reasonable doubt, using WPIC 4.01—the standard reasonable doubt instruction. In relevant part, that instruction states "Areasonable doubt is one for which a reason exists and may arise from the evidence or lack ofevidence."2 Corbett claims this standard instruction is unconstitutional. In substance, he claims the instruction mandates that ajuror must be able to articulate a
reason inorderto have reasonable doubt. He further argues this claimed articulation requirement undermines the presumption ofinnocence. The supreme court has ordered trial courts to use WPIC 4.01 in all 

### criminalcases.3 This court recently noted thatdirective in rejecting the same

1 See State v. Kalebaugh, 183 Wn.2d 578, 584-85, 355 P.3d 253 (2015). 2WPIC 4.01. 3 State v. Bennett, 161 Wn.2d 303, 318, 165 P.3d 1241 (2007). 3No. 72453-3-1/4 

### argumentthat Corbett makes here.4 We also rejectthis argument on the same basis. ER 404(B) Corbett argues that the court abused its discretion in admitting evidence of his prior acts ofdomestic violence against C.H. We disagree. Inthis case, C.H. initially told the police that a man named "James Dixon" had assaulted her. She later testified that "James Dixon" was a name she "made up" to protect Corbett. Under ER 404(b), the State elicited testimony showing that Corbett had twice assaulted C.H. in 2012. Both times, C.H. had initially lied to "the authorities," stating "that somebody else had committed the crime." But C.H. eventually testified, and Corbettwas convicted of both assaults. Here, thejudge instructed thejury that it could considerthis evidence only
as itrelated to C.H.'s credibility. This is consistentwith the requirements for admission ofsuch evidence.5 ER 404(b) limits the admission of prior acts. Itstates: Evidence ofother crimes, wrongs, or acts is not admissible to prove the characterof a person inorderto show action inconformity 

### therewith. It may, however, be admissible for otherpurposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence ofmistake or accident.

4State v. Lizarraga. No. 71532-1-1, 2015 WL 8112963, at *20 (Wash. Ct. App. Dec. 7, 2015). 5State v. Maqers, 164 Wn.2d 174, 186-87, 189 P.3d 126 (2008).No. 72453-3-1/5 The supreme court has held "thatprior acts ofdomestic violence, involving the defendant and the crime victim, are admissible inorderto 

### assistthe jury in judging the credibility of a recanting victim."6 Ifthe trial court properly interprets ER 404(b), we review for abuse ofdiscretion its decision to admit or exclude evidence.7 "A trial court abuses its discretion if a decision is manifestly unreasonable or based on 

### untenable grounds oruntenable reasons."8 A court also abuses its discretion ifitdoes notfollow an evidentiary rule's requirements.9 In this case, C.H. recanted her priorstatementthat "James Dixon" had assaulted her and later identified Corbett as the perpetrator. Thus, 

### the court properly admitted the prioracts ofdomestic violence, and C.H.'s priorrecantations, under ER 404(b). 

### Corbett acknowledges that C.H. recanted, and thus evidence of the 

### prioracts of domestic violence were admissible. But he argues that there is an additional requirement—"experttestimony explaining the dynamics ofdomestic violence requirements."10 This is incorrect.

6 Id at 186. 7State v. Fisher. 165 Wn.2d 727, 745, 202 P.3d 937 (2009). 8 Skaait County Pub. Hosp. Dist. No. 304 v. Skagit County Pub. Hosp. Dist. No. 1. 177 Wn.2d 718, 730, 305 P.3d 1079 (2013). 9 Fisher. 165 Wn.2d at 745. 10 Brief ofAppellant at 20.No. 72453-3-1/6 A majority ofthe supreme court has declined to adopt this 

### additional requirement.11 Corbettfails to cite any authority that requires expert testimony before admitting prior incidents ofdomestic violence underthe circumstance ofthis case. Thus, we reject this argument. GOVERNMENT MISCONDUCT Corbett argues thatthe State committed "egregious misconduct" by 

### attempting to bribe a materialtrial witness.12 We conclude that he has failed in his burden to show that the alleged misconduct requires reversal. As a preliminary matter, the State argues that Corbett may not raise this issue for the first time on appeal. We disagree. The supreme court, with littleanalysis, has stated that outrageous 

### government conduct implicates "due process underthe Fifth and Fourteenth Amendments ofthe federal constitution."13 Thus, we address this issue. This doctrine "is founded on the principle that the conduct of law enforcement officers and informants may be 'so outrageous that due process 

### principles would absolutely barthe governmentfrom invoking judicial processes to obtain a conviction.'"14 To violate due process, the government's conduct



### 11 See Magers, 164 Wn.2d at 197-98 (C. Johnson, J. dissenting). 12 Brief ofAppellant at 12. 13 State v. Lively. 130Wn.2d 1, 18,921 P.2d 1035(1996). 

### 14jd, at 19 (quoting United States v. Russell, 411 U.S. 423, 431-32, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973)).No. 72453-3-1/7
"must shock the universal sense offairness."15 Government conduct is 

### outrageous ifit "amount[s] to criminal activity orconduct 'repugnantto a sense of justice.'"16 

### Corbett's argument centers on a recorded telephone conversation between Suldan Mohamed and DetectiveAdam Thorp ofthe DomesticViolence 

### Unit. Detective Thorp was investigating the incident inMohamed's apartment on which the charges inthis case were based. The incident included the assailant throwing an empty knife block at C.H., which hit her son, J.N. Our review ofthe record reveals that the State questioned Mohamed, who 

### testified at trial, aboutthis conversation. During cross-examination, Corbett also questioned him about the conversation: [Corbett:] Do you rememberfeeling pressured by Detective Thorp to participate inthe prosecution? [Mohamed:] Yeah, in a sense. You can be subpoenaed, you can be—you know, didn't want to incriminate myself. [Corbett:] Do you remember being told that the name ofthe person that Detective Thorp wanted you to help prosecute was Bryan Nichols or Bryan Corbett? Do you remember him telling you that? [Mohamed:] They tell me, correct, that his first and last name. Because the first and last time that I heard his name was the night—the night that Iwas inthe 911. And that's why Iasked her what's his first and last name. [Corbett:] And do you remember Detective Thorp offering to buy you a set of steak knives as a thank you if you were to agree to help him prosecute Bryan Corbett?

15 Id. 

### 16]g\at 22 (quoting People v. Isaacson, 44 N.Y.2d 511, 378 N.E.2d 78, 83, 406 N.Y.S.2d 714 (1978)). 7No. 72453-3-1/8 [Objection overruled] [Mohamed:] Yeah, he said he offered me, that is correct. The officer said, We'll buy you, if inthe case that you don'twantthis, we will buy you a knife set orwhatever. Isaid, Idon't want nothing to do with this stuff, it's okay. Not interested. [Corbett:] So the conversation you had with Detective Thorp started outwith you saying you don't know how tall or short the man was, him telling you itwas vitally importantthat you helped him prosecute Bryan Corbett by name, and offered to give you a gift if you would do so; is that correct? [Mohamed:] Offered to replace. [Corbett:] He told you you could keep the old one when they were 

### done using itas evidence too, though, right? [Mohamed:] In a sense, something like that. But what Imeant to 

### say was Ididn't want him to buy me anything. But he offering. He said, We'll buy you, you know, one ifyou— [Corbett:] Itwas very clear— 

### [Mohamed:]—if you will allow us to keep it, he allow if—We taking this for evidence, butwhen we done, we'll buy you, if you want, another one. That was the offer.[17] 

### Detective Thorp testified later inthe trial. Duringcross-examination, 

### Corbettquestioned him regarding a portion of histestimony on direct: [Corbett:] You stated inresponse to a question from [the State] that you didn't offerMr. Mohamed anything to cooperate in the investigation and prosecution ofMr. Corbett? [Detective Thorp:] That is correct. 

### [Corbett:] That's actually not true, though, is it? [Detective Thorp:] That is true, sir. 

### [Corbett:] You offered to buy him a set ofsteak knives that would be his to keep, didn't you? 

### 17 Report ofProceedings Vol. 4 (July 16, 2014) at 183-84. 8No. 72453-3-1/9 [Detective Thorp:] Not inexchange for testimony or a statement. [Corbett:] You didn't explicitly state that itwas inexchange for anything, right? [Detective Thorp:] That is correct. Itwas simply a replacementfor what he was—he had lost. [Corbett:] All right. So let's make sure Iunderstand. You told him you really needed his help to prosecute Mr. Corbett, itwas very importantthat he cooperate, right? [Detective Thorp:] I'm sure at some point Iexpressed the interest in getting a statement, yes. 

### [Corbett:] And then you told him, We'd be happy to buy you a set of steak knives, which would be yours to keep at the end ofthe case, right? [Detective Thorp:] That is correct, but not inthe same conversation. 

### [Corbett:] Ibeg your pardon, wasn't it all inthe same conversation, within about a minute? [Detective Thorp:] Idon't believe so, but— 

### [Corbett:] I'm going to play for you a section of that recorded testimony. [Corbett:] Okay. 

### [Corbett:] And bearwith me. It mighttake a minute to get the exact spot right. 

### (Recording transcribed as follows:) MR. MOHAMED: (Inaudible) Does that make sense? DETECTIVE THORP: Yeah. And by the way, Ineed to advise you, this line is recorded. But you are a huge part ofthis particularcase 

### as far as bringingjusticeto the perpetratorand making sure that he is held responsible as the onlywitness. Because [C.H.] may not be very cooperative right now, and so it really relies heavily on your— 

### on your—onwhat you saw on yourstatements and whatnot. In fact, I've been authorized by the Prosecuting Attorney's Office toNo. 72453-3-1/10 

### buy you a new knife set, knife block and knifeset, and you can keep your old ones, as well, ifthat's something you're interested in. (End ofaudio recording.) [Corbett:] So not merely inthe same conversation, but almost 

### literally inthe same breath; wouldn'tyou agree? [Detective Thorp:] Okay. That sounded pretty close, yes.[18] At trial, Corbettdenied that he was the assailant. Thus, identity was a primary issue. C.H. had given a false name—"James Dixon"—when questioned


### on the day ofthe incident. And Mohamed had initially indicated that he was uncertain whether Corbettwas the assailant. Thus, Corbett soughtto impeach the testimony of both Mohamed and Detective Thorp by the examinations quoted earlier in this opinion. Corbettcontinued this strategy at closing argument, arguing, in part, as follows: [The prosecutor] states that you know [C.H.] is telling the truth now because ofwhat Mr. Mohamed said. I'd like to talkto you about Mr. Mohamed. I'm sure itwas an easy argumentfor [the prosecutor] to make that it's ridiculous that Mr. Mohamed lied because he told them for a set of steak knives. That is ridiculous. No one is saying that that's what happened. What did happen is that Mr. Mohamed had a very startling event occurto him. Shortly afterthat, you heard his own voice telling the detective, Idon't know, man, itwas a black male. I couldn't say how short or tall he was. Looking at a picture of him probably wouldn't help me recognize him. Ijust don't know. Then what happened? Detective Thorp called him on the phone, and you heard Detective Thorp's voice on that tape as well. Detective Thorp told Mr. Mohamed that itwas critically important that Mr. Mohamed save the day. That Mr. Mohamed be the one to make sure that Bryan got convicted. He didn't ask him anything, he told him, This is the man who did it, you need to make sure that he gets convicted, because no one else can save the day. 

### 18 Id, at 207-09. 10No. 72453-3-1/11

He pulled out allthe stops. Honestly, have any of you ever heard of a detective offering to buy a set of steak knives? It's absurd, to borrow [the prosecutor's phrase. That's not why Mr. Mohamed told you what he told you. There are more subtle reasons for what he did. How do we know he couldn't properly identify Bryan? Because he told you so in his own voice on the tape. Iwouldn't be able to recognize him, Idon't know how tall he was, ithappened so fast. Then, under pressure, and being given an opportunity to feel important and to feel as though he had helped and as though he had saved the day, then he spent every day for the last six months walking in and out of his building, multiple times, seeing a picture of the man that he had been told was guilty by the detective. Of course he identified Mr. Corbett. Ofcourse he didJ19] Based on this testimony and closing argument, Corbett argues thatthe State attempted to bribe Mohamed by offering to replace the knife block and buy a knife setfor him inexchange forfavorable testimony attrial. He further claims this constitutes "egregious conduct," requiring reversal. We cannot agree. First, we are struck by the fact that Corbett's trial counsel made what 

### appears to this courtto have been a reasonable tactical decision to electto put 

### these facts before a jury to impeach two importantwitnesses on the issue of identity. Counsel elected not to seek any remedy from the trialcourt, eitherby a mistrial motion or a requestto strike the testimony ofMohamed. Thus, there is no ruling by the trial courtfor us to review. Second, Corbett concedes on appeal that Mohamed was a reluctant witness at trial. The record bears this out. He testified at trial that he was there



### 19 Report ofProceedings Vol. 6 (July 21, 2014) at 412-13.

11No. 72453-3-1/12 because the State subpoenaed him and told him he would go to jail ifhe did not testify. Mohamed also declined the detective's offer. Thejury heard this testimony and was inthe best position tojudge his 

### credibility. Likewise, thejury was inthe best position tojudge the credibility of Detective Thorp on whether he was offering to bribe Mohamed or offering to replace property that had been taken as evidence. We do not review credibility determinations.20 We would be far more concerned about Mohamed's testimony ifthejury had not been apprised of his recorded telephone conversation with Detective Thorp. But we simply cannotfind fault with trial counsel's tactical choice to put 

### these facts before thejury inthe hope thatdoing so would successfully impeach Mohamed's testimony on the primary issue of identity. Third, Corbett relies on cases that are inapposite to support his argument. 

### Corbett uses In re Disciplinary Proceedings Against Bonet21 to argue that a 

### prosecutorcommits professional misconduct by offering a benefit "to a witness with intent to influence thatperson's testimony."22 While we agree with that 

### proposition, the record here does not show that the prosecutor attempted to offer

a benefitto Mohamed to influence his testimony.

20 State v. Robinson, 189 Wn. App. 877, 896, 359 P.3d 874 (2015). 21 144Wn.2d 502, 29 P.3d 1242 (2001). 22 Brief ofAppellant at 15.

12No. 72453-3-1/13 

### Corbettrelies onDetectiveThorp's statement toMohamed that he"[had] been authorized by the Prosecuting Attorney's Office to buy[Mohamed] a new 

### knife set."23 Butthe fact that the prosecutor'soffice authorized buying a new knife setdoes not by itselfshow intent to influence Mohamed's testimony. In Bonet, the prosecutordropped a pending charge against a witness as part of an agreementforthatwitness not to testify in a trial.24 Thus, the record in this case does not resemble the record in Bonet. 

### The other cases on which Corbett relies are also distinguishable from the present case. State v. Cory25 and State v. Pefia Fuentes26 involve eavesdropping on privileged conversations between clients and defense 

### counsel—"shocking and unpardonable" conduct.27 Similarly, inState v. Monday, the prosecutor "s[ought] to achieve a conviction by resorting to racist 

### arguments."28 Comparing these cases to the present case, the alleged misconduct here fails to "shockthe universal sense offairness."29 Thus, Corbett fails to show that due process requires reversing his convictions.



### 23 Report ofProceedings Vol. 4 (July 16, 2014) at 209. 24 Bonet. 144 Wn.2d at 514-15. 

### 25 62 Wn.2d 371, 372, 382 P.2d 1019(1963). 26 179 Wn.2d. 808, 811, 318 P.3d 257 (2014). 27Cory. 62 Wn.2d at 378. 28 171 Wn.2d 667, 680, 257 P.3d 551 (2011). 29 Lively, 130 Wn.2d at 19.

13No. 72453-3-1/14
In sum, we conclude that Corbettfails in his burden to show that the State engaged in "criminal activity or conduct 'repugnantto a sense ofjustice'" that requires reversal.30 COMMENT ON THE EVIDENCE Corbett claims thatthe court gave an improperjury instruction, which constituted a comment on the evidence. We agree that thejury instruction did
comment on the evidence. But the record shows that the comment did not prejudice Corbett. Corbett received an exceptional sentence based on two sentence enhancements. One enhancementwas that Corbett's crimes were part of an 

### ongoing pattern ofabuse for a prolonged period of time. "[W]hethera particular 

### pattern ofabuse occurred over a 'prolonged period oftime'" is a question for the 

### jury.31 Washington's constitution prohibitsjudges from commenting on the evidence.32 In State v. Brush, the supreme court held thatWPIC 300.17, a 

### pattern jury instruction defining "'a prolonged period oftime'" as "'more than a few 

### weeks,'" was an impermissiblecomment on the evidence.33

30JdL at 22 (quoting Isaacson. 378 N.E.2d at 83). 31 State v. Brush. 183 Wn.2d 550, 558, 353 P.3d 213 (2015). 32 CONST, art. IV, § 16. 33 183 Wn.2d 550, 558-59, 353 P.3d 213 (2015).

14No. 72453-3-1/15 Here, the trial court provided thejury the same patternjury instruction defining a prolonged period of time that was the subject ofBrush. The State properly concedes that, under Brush, this instruction constitutes an improper
comment on the evidence. 

### Acomment on the evidence does not automatically require reversal.34 Rather, courts apply a two-step analysis to determine whether the error requires reversal: "Judicial comments are presumed to be prejudicial, and the burden is
on the State to show that the defendantwas not prejudiced, unless the record 

### affirmatively shows that no prejudice could have resulted."35 Thus, the question is whetherthe State can meet its high burden to show 

### that giving this instruction in this case did not prejudice Corbett. In Brush, the court determined that the State failed to show that the 

### commenton the evidence was not prejudicial.36 In that case, the State presented 

### evidence showing that the "abuse occurredduring a two-month period."37 Thus, the State could not showthatthejury instruction, which stated that a prolonged 

### period oftime was more than afew weeks, was notprejudicial.38

34 State v. Lew. 156 Wn.2d 709, 725, 132 P.3d 1076 (2006). 35 id, at 723. 36 183 Wn.2d at 559-60. 37 \± at 555. 38 id, at 559-60.

15No. 72453-3-1/16 Incontrast, in State v. Levy, the supreme court held that a comment on 

### the evidence was not prejudicial.39 Inthatcase, the court instructed the jurythat the apartment inquestion constituted a "building" for the purposes ofthe burglary 

### statute.40 Although this was improper, Levy had never challenged thatthe 

### apartmentwas a building.41 Under the facts ofthat case, the court held "that the 

### jury could notconclude that [the]apartmentwas anything otherthan a building."42 Here, unlike in Brush, the uncontested evidence showed that the domestic abuse had occurred for a period far longerthan a few weeks. The admitted evidence showed that Corbett had been convicted of over 20 domestic violence crimes from 2003 to 2014, the time oftrial. 

### This case is like Levy. In Levy, the defendant did not challenge thatthe 

### apartmentwas a building.43 Similarly, here Corbett did notchallengethat the period from 2003 to 2014 was a prolonged period of time. Ifthe jury believed the evidence on the priordomestic abuse, it could not have failed to findthatthe domestic abuse occurred over a prolonged period oftime. 

### Accordingly, the State has met its burden to show that the commenton the evidence in this case was not prejudicial. There is no reversible error.

39 156Wn.2d 709, 726-27, 132 P.3d 1076 (2006). 40id, at 716, 721. 41 id, at 726. 42 id, 43 id,

16No. 72453-3-1/17 

### Corbett argues that this case resembles State v. Becker.44 We disagree. Inthat case, the trialcourt improperly commented on the evidence by instructing thejury that an education program was a school for the purposes of a 

### school-zone enhancement.45 The supreme court determined thatthat this 

### commenton the evidence was prejudicial.46 But in Becker, whetherthe education program was a school was a contested issue. The "Defendants presented considerable evidence at trial that [the education program] d[id] not have many ofthe attributes of a traditional 

### school otherwise required by law."47 And the defendants' theory of the case was thatthe education program was not a school underthe statute.48 Thus, "Although the major issue at trial was whether [the education program] itselfwas
a school within the meaning ofthe statute RCW 69.50.435, the trial court's 

### special verdict essentially withheld that determination fromthejury."49 Accordingly, Becker is distinguishable. Here, Corbettdid not challenge the length ofthe alleged abuse. And whether 10 years is a prolonged period of time was not an issue in this case.



### 44132 Wn.2d 54, 935 P.2d 1321 (1997). 45 id, at 65. 46 id, 47 id, at 58. 48 id, at 59. 49 id, at 63.

17No. 72453-3-1/18
PROSECUTORIAL MISCONDUCT Corbett next argues thatthe prosecutor committed misconduct during closing argument. He fails in his burden to show either misconduct or prejudice. To prevail on a claim ofprosecutorial misconduct, the defendant must 

### establish that the prosecutor's conductwas both improper and prejudicial.50 Ifa defendantfails to object at trial, we grant relief only ifthe remark was "so flagrant and ill intentioned that an instruction could not have cured the resulting 

### prejudice."51 "Under this heightened standard, the defendant must showthat (1) 'no curative instruction would have obviated any prejudicial effect on thejury' and 

### (2) the misconduct resulted inprejudice that 'had a substantial likelihood of 

### affecting the juryverdict.'"52 Additionally, when the defendantfails to object, it "'strongly suggests to a court thatthe argument or event inquestion did not 

### appearcritically prejudicial to an appellant in the context of the trial.'"53 "In closing argument, a prosecutor is afforded wide latitude to draw and 

### express reasonable inferences from the evidence."54 We review alleged prosecutorial misconduct in "the context of the total argument, the issues in the

50 State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012). 

### 51 id, at 760-61. 

### 52id, at 761 (quotingState v. Thorqerson, 172 Wn.2d 438, 455, 258 P.3d 43(2011)). 53 State v. McKenzie. 157 Wn.2d 44, 53 n.2, 134 P.3d 221 (2006) (quoting State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990)). 54 State v. Reed, 168 Wn. App. 553, 577, 278 P.3d 203 (2012).

18No. 72453-3-1/19 

### case, the evidence [addressed in the argument], and the instructions given to the jury."55

### Corbett argues that the prosecutorcommitted misconduct during closing argumentfor two reasons. Neither argument is persuasive. Impugning Defense Counsel 

### Corbettfirstargues that the prosecutor impugned defense counsel during closing argument by characterizing the defense's arguments as "absurd." Prosecutors may argue that "the evidence does not supportthe 

### [defendant's] theory ofthe case."56 But they "must not impugn the role or integrity ofdefense counsel."57 A prosecutor's disparaging remarks about the defense's arguments do not necessarily disparage defense counsel—"isolated remarks calling defense arguments 'bogus' and 'desperate,' while strong and perhaps close to improper, do not directly impugn the role or integrity ofcounsel, and such isolated 

### comments are unlikely to amountto prosecutorial misconduct."58 For example, in State v. Brown, the prosecutordescribed part ofthe 

### defense's theory of the case as "'ludicrous.'"59 The supreme court held that this
was not misconduct, stating "[t]heuse ofthe word 'ludicrous' was simply editorial

55 Emery, 174 Wn.2d at 764 n.14. 56Thorgerson. 172 Wn.2d at 465. 57 id, 58 id, at466. 59 132 Wn.2d 529, 565-66, 940 P.2d 546 (1997). 19No. 72453-3-1/20


### comment bythe prosecuting attorney which was a strong, but fair, response to 

### the argument made bythe defense."60 Incontrast, in State v. Thorgerson, "the prosecutor impugned defense counsel's integrity, particularly in referring to his presentation of his case as 

### 'bogus' and involving 'sleightofhand.'"61 "In particular, 'sleight ofhand' implies wrongfuldeception oreven dishonesty in the contextof a court proceeding."62 Similarly, in State v. Lindsay, the prosecutor impugned defense counsel by 

### stating that counsel had "pitched
... a crock" to thejury.63 This impugned defense counsel because that term "implies deception and dishonesty" and is "a 

### shortening of an explicitly vulgar phrase."64 

### Likewise, inState v. Warren, the prosecutor impugned defense counsel.65 Inthat case, the prosecutor "described defense counsel's argument as a 'classic 

### example of taking these facts and completelytwistingthem to their own benefit, and hoping thatyou are not smart enough to figure out what infact they are

60 id, at 566. 61 172 Wn.2d 438, 451-52, 258 P.3d 43 (2011). 

### 62 id, at 452 (quoting Webster's Third New International Dictionary 2141 (2003)). 63 180 Wn.2d 423, 433, 326 P.3d 125 (2014). 

### 64 id, at 433-34. 65 165 Wn.2d 17, 29-30, 195 P.3d 940 (2008).
20No. 72453-3-1/21 

### doing.'"66 Buteven in that case, these comments were "not so flagrant and ill intentioned that no instruction could have cured them."67 

### Here, the prosecutor used a variation of the phrase "quitefrankly absurd" three times in closing argument. Heused this phrasetwice to characterizethe 

### argumentthatC.H. would use the assault on herchild as an opportunitytoframe Corbett. The third time he used it to characterize the argumentthat Mohamed identified Corbett as the assailant to receive a free set of knives. 

### Corbett did not object to any ofthese characterizations, suggesting that trialcounsel did not considerthem objectionable inthe contextof the trial. 

### Instead, Corbettchoseto use closing argument to respond to the prosecutor's 

### comments. Corbettacknowledged that the idea that"Mr. Mohamed lied
... for
a set ofsteak knives" was "ridiculous." Corbettwent on to distinguish his 

### argumentfrom theprosecutor's characterization. He also respondedtothe prosecutor's other uses oftheword "absurd." 

### Here, theprosecutordid notdirectly impugn defense counsel. Thus, his comments resemble those inBrown, notthose in Lindsay, Thorgerson, or Warren. In the context of this case, Corbettfails to showthatthe prosecutor 

### committed misconductduring closing argument. Moreover, hefails to showthat a curative instruction would nothave cured the alleged misconduct.

66 id, at 29. 67 Id. at 30.
21No. 72453-3-1/22 

### Corbett argues that using the word "absurd" is analogous to using the terms "bogus" or "a crock." Butthose terms, unlike "absurd," implyfalsehood or 

### deception.68 Rather, using "absurd" is analogous to using "ludicrous," "which was a strong, but fair, response to the argument made bythe defense."69 "We Know" Corbett also argues that the prosecutorcommitted misconduct by repeatedly using the phrase "we know" during closing argument. We disagree. In certain circumstances, using the phrase "we know" may constitute 

### misconduct.70 But a prosecutordoes not commit misconductby using this term 

### only to marshal the evidence in the case.71 Here, the prosecutor used the phrase "we know" several times during 

### closing argument. Corbett did not object. Accordingly, trial counsel did not 

### believe that using these words was objectionable in the context of the case. And Corbettfailed to request a curative instruction. A fair review ofthis record shows thatthe prosecutor used this phrase 

### only to marshal the evidence. Thus, Corbett cannot show that using "weknow"

was misconduct in this case.

68 Thorgerson. 172 Wn.2d at451-52; Lindsay. 180 Wn.2d at 433. 69Brown, 132 Wn.2d at 566. 

### 70 State v. Robinson. 189 Wn. App. 877, 894-95, 359 P.3d 874 (2015). 71 Id, at 895.

22No. 72453-3-1/23
CUMULATIVE ERROR 

### Corbett also argues that cumulative error requires reversal. We disagree. Where several errors standing alone do not warrant reversal, the cumulative error doctrine requires reversal when the combined effects ofthe

errors denied the defendant a fair trial.72 Here, for the reasons discussed earlier, the court's comment on the evidence was the only error at trial. And as described earlier, the record shows that this error did not prejudice Corbett. NO-CONTACT ORDER Corbett argues that the court improperly prohibited him from contacting his
son for lifeas a sentencing condition. We accept the State's concession oflegal error, strike this condition, and remand for resentencing. "[The] defendant's fundamental rights limitthe sentencing court's ability to 

### impose sentencing conditions."73 Parents have a fundamental right in the care of their children.74 Ifa sentencing condition interferes with a fundamental right, the condition 

### must be "reasonably necessary to accomplish the essential needs ofthe State

72 State v. Davis. 175 Wn.2d 287, 345, 290 P.3d 43 (2012). 73 In re Rainev. 168 Wn.2d 367, 377, 229 P.3d 686 (2010). 74Warren, 165 Wn.2d at 34.
23No. 72453-3-1/24 

### and publicorder."75 "[T]he interplay ofsentencing conditions and fundamental rights is delicate and fact-specific."76 A court may not impose a no-contact order between a parent and child without "addressing] the parameters ofthe no-contact order underthe 

### "'reasonably necessary' standard."77 Ifa trial court fails to address the proper standard, this court strikes the no-contact order and remands for resentencing.78 Here, the trial court imposed a sentencing condition that prohibited Corbett from contacting his son for the duration of Corbett's lifetime. The State properly concedes thatthe courtfailed to address the "reasonably necessary" standard. Thus, we strike this condition and remand for reconsideration and resentencing. We affirm Corbett's conviction, strike the sentencing condition imposing a no-contact orderfor his lifetime, and remand for reconsideration and resentencing. 

# ^er^^JT

WE CONCUR: 

# Tf^oUovi f^ w^'^^f^

75 id, at 32. 76Rainev. 168 Wn.2d at 377. 

### 77 id, at 381-82. 78 Id.
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