* State Of Washington, Res/cross-app. V. Dawn Marie Sullivan, App/cross-res.

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
DAWN MARIE SULLIVAN,
Appellant.
No. 73217-0-1
c=> 	_-< cz
S3 	p";
(Consolidated with
No. 73216-1-1) c 	C~'
PUBLISHED OPINION 5?
FILED: 	October 10, 2016
Leach, 	J. — Dawn 	Sullivan appeals her conviction for second degree
assault. 	She challenges the trial court's refusal to excuse a juror who may have
known the complaining witness and its decisions to give a first aggressor jury
instruction and 	not to give a 	multiple assailants instruction. 	And she claims
prosecutorial misconduct in closing argument to which she did not object. 	We
reject each of these arguments. 	The record shows that the juror's possible
acquaintance 	with 	a witness did not affect the juror's ability to be fair and
impartial. 	The evidence at trial justified a first aggressor instruction. 	The trial
court's self-defense instructions allowed Sullivan to argue her defense theory,
and her multiple assailant instruction would have been cumulative. 	Finally, the
prosecutor's remark in closing reflected a reasonable inference from Sullivan's
testimony. 	Accordingly, we affirm Sullivan's conviction.
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 73217-0-1/2 (consol.
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The State appeals Sullivan's sentence. 	It claims that the trial court had no
authority to sentence her to a community program instead of confinement or to
award credit for participation in that program toward her sentence. 	Because the
Sentencing Reform Act of 19811 and the Supreme Court's decision in State v.
Medina2 	prohibit 	the 	sentence 	the 	trial 	court 	imposed, 	we 	remand 	for
resentencing.
FACTS
Dawn Sullivan cut Christopher Bohannon on the arm with a kitchen knife
during a quarrel in Bohannon's apartment. 	She had been staying there, off and
on, for about a month while she looked for a new place to live. 	The night of the
assault, Sullivan and Bohannon drank together at the apartment. 	After midnight,
Sullivan left and walked to a nearby area of bars in downtown Seattle. 	She met
Robert Cessill, a stranger, who was in town during a long layover and waiting at
a bus stop. She invited Cessill back to Bohannon's apartment. The three talked,
and Cessill and Bohannon drank, until Cessill fell asleep on the couch.
Sullivan asked to smoke some of Bohannon's medical marijuana. After he
refused, the two began to argue. 	Sullivan, Bohannon, and Cessill later gave
different accounts of what followed.
1 Ch. 9.94A RCW.
2 180 Wn.2d 282, 324 P.3d 682 (2014).
 	 	 	 	 	 	 	 	 	 	 	 	 	

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According to Sullivan, Bohannon became furious and told her to leave.
She tried to rouse Cessill because "it would be rude" to bring over a guest and
then leave him there. 	Bohannon told 	her to 	let Cessill sleep. 	As she was
shaking Cessill's foot, Bohannon "pounced" on her, and the two rolled on the
floor. 	She did not see Cessill get off the couch, but she suddenly felt both men
on top of her on the floor. 	She was afraid because "people were putting their
hands on [her] body and holding [her] against [her] will for no reason." 	She
"wiggled out, jumped over the couch," ran to the kitchen, and grabbed a knife
from a magnetic strip. 	She felt she needed to defend herself, and the knife was
closer than the door. 	Bohannon grabbed her, and he and Cessill took the knife
from her within seconds. 	Bohannon then threw her out of the apartment. 	She
did not know she had cut him during the scuffle.
According 	to 	Bohannon, 	Sullivan was angry and 	announced 	she was
leaving. 	She pulled Cessill off the couch and told him, "[Y]ou're coming with me
or I'm going to punch you in the face." 	Bohannon intervened, telling her not to
punch anyone and that he wanted her to leave. 	As he led her toward the door,
Sullivan "ran across [him] the wrong way into the kitchen area." 	He followed her,
and 	she punched him in the 	nose multiple times. 	To this point, he had 	not
touched Sullivan except on the arms. 	He grabbed her wrists and pulled her to
 	 	 	 	 	 	 	 	 	 	 	 	 	

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her hands and knees, then put his hand on her back, trying to calm her down.
She stayed on the floor for 30 seconds to 2 minutes. 	Then she "twirled around
and got up and grabbed [Bohannon's] kitchen knife, [his] big one." 	Bohannon
grabbed at it, cutting his hand. 	Then Sullivan swung it down, cutting his wrist.
Bohannon again grabbed her wrists and pulled her down to all fours. 	She was
still holding the knife. 	At that point, Cessill got off the couch, grabbed Sullivan,
and pulled her backward onto the couch. 	Bohannon took the knife away. 	He
went to the kitchen, gathered up the other knives from the magnetic strip, took
them to his bedroom, and threw them onto the floor on the far side of his bed.
He saw that Cessill had made Sullivan pass out.
Similarly, Cessill testified that he woke up as Sullivan was standing over
him and saying, "I'm going to punch you in the face." 	Cessill opened his eyes,
and Sullivan told him he needed to leave immediately. 	Bohannon told Sullivan to
leave Cessill alone and that she needed to leave. 	She became more upset.
Bohannon and Sullivan argued very briefly, and then Sullivan went to the kitchen.
As 	Bohannon 	followed 	her, 	Sullivan 	came 	out 	with 	a 	knife. 	She backed
Bohannon against a wall and repeatedly slashed down with the knife, cutting his
arm.3 	Cessill got up, grabbed Sullivan, and put her in a martial arts chokehold,
3 Cessill testified Sullivan never punched Bohannon but also indicated he
could not see them when they were in the kitchen.
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causing her to pass out and drop the knife. 	Bohannon took the knives from the
kitchen and hid them. After a short time, Sullivan woke up and left.
The 	State charged Sullivan with second degree assault with a deadly
weapon.4 	During Bohannon's testimony, a juror told the court he might know
Bohannon through mutual acquaintances. 	The court denied Sullivan's request to
excuse the juror for cause.
At the end of the trial, the court instructed the jury on self-defense. 	Over
Sullivan's objection, the court gave a first aggressor instruction informing the jury
that self-defense was not available if it found that Sullivan provoked the fight.
Also over Sullivan's objection, the trial court declined to give an instruction stating
that the 	amount of force 	necessary to defend one's self "may vary with the
number of persons the defendant reasonably believes are" threatening violence.
During 	closing 	arguments, 	the 	prosecutor asserted 	that 	Sullivan 	had
attempted to gamer the jury's sympathy by suggesting she had been "fearful of
some sort of sexual assault." Sullivan did not object.
The jury convicted Sullivan of second degree assault and found she was
armed with a deadly weapon.5 	The trial court imposed an exceptional sentence
4RCW9A.36.021(1)(c).
5 RCW 9A.36.021(1)(c); RCW 9.94A.825.
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of no jail time for the assault.6 	It also allowed Sullivan to serve the mandatory
12-month deadly weapon enhancement7 in the King County Community Center
for 	Alternative 	Programs 	Enhanced 	(CCAP). 	Sullivan 	and 	the 	State 	both
appealed the judgment and sentence. 	This court consolidated the appeals.
ANALYSIS
Juror 9
First, Sullivan contends that the trial court denied her right to an impartial
jury by not excusing a juror who may have known Bohannon. 	During a break in
Bohannon's 	testimony, 	juror 	9 	told 	the 	trial 	court that 	he 	was 	"reasonably
confident" he had met Bohannon and believed they might have mutual friends.
He said he did not think they had ever had a conversation. 	He said they might
be friends on social media but could not recall having any exchanges on social
media either. 	He confirmed his uncertainty about actually knowing Bohannon.
The judge asked juror 9 whether anything about this possible connection would
make 	him 	concerned 	that 	it would 	be 	"awkward 	if [juror 	9] 	didn't 	believe
[Bohannon]." 	The prosecutor asked if juror 9 could remember any interaction
with 	Bohannon 	and 	if 	their 	possible 	connection 	"would 	have 	any
6 The court based the exceptional sentence on 	RCW 9.94A.535(1)(a),
which allows for mitigating circumstances where "the victim was an 	initiator,
willing participant, aggressor, or provoker of the incident."
7 RCW 9.94A.533(4)(b).
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impact. .. whatever on you just watching him and assessing his credibility and
his testimony as 	if it was anyone else." 	The juror answered 	"no" to each
question.
The United States and Washington Constitutions guarantee a defendant
the right to an impartial jury.8 	A party may challenge a juror for cause.9 	A judge
must excuse "any juror, who in the opinion of the judge, has manifested unfitness
as a juror," including "by reason of bias."10 	When a party challenges a juror for
actual bias, even if the juror appears to have "formed or expressed an opinion
upon what he or she may have heard or read," to excuse the juror "the court
must be satisfied, from all the circumstances, that the juror cannot disregard such
opinion and try the issue impartially."11 	"[T]he trial court is in the best position to
determine a juror's ability to be fair and impartial."12 	This court reviews that
decision for abuse of discretion.13
Here, the trial court did not violate Sullivan's right to an impartial jury by
declining to excuse juror 9. While juror 9 believed he might have mutual friends
8 U.S. Const, amend. VI; Wash. Const, art. I, § 22.
9 CrR 6.4(c).
10 RCW 2.36.110; CrR 6.4(c).
11 RCW 4.44.190; see RCW 4.44.170(2) ("Actual bias" means "a state of
mind on the part of the juror in reference to the action, or to either party, which
satisfies the court that the challenged person cannot try the issue impartially and
without prejudice to the substantial rights of the party challenging.").
12 State v. Noltie, 116 Wn.2d 831, 839, 809 P.2d 190(1991).
13 State v. Jorden, 103 Wn. App. 221, 226, 11 P.3d 866 (2000).
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with Bohannon, he did not think they had ever had a conversation. 	He stated
that 	nothing 	about 	their 	possible 	connection 	would 	make 	him 	reluctant 	to
disbelieve 	Bohannon and that that connection would 	have no 	impact on 	his
assessment of Bohannon's credibility.
Even if juror 9 was confident that he recognized and had met Bohannon
and thought they shared mutual friends, those facts alone would not require the
court to excuse him. 	Nothing in the record indicates that the juror's potential
acquaintance with Bohannon affected his opinion of Bohannon's credibility. 	Even
if he had formed such an opinion, the trial court would need to be satisfied, from
all the circumstances, that juror 9 could not disregard his opinion and decide the
issue impartially.14 The trial court was in the best position to make this judgment.
The record affirmatively supports its decision that juror 9 could decide the case
impartially. 	Thus, the trial court did not abuse its discretion in declining to excuse
the juror.
First Aggressor Jury Instruction
Next, Sullivan contends that the trial court erred in giving the jury a first
aggressor instruction. 	The court instructed the jury on self-defense and, over
Sullivan's objection, instructed the jury, "[l]f you find beyond a reasonable doubt
that the defendant was the aggressor, and that defendant's acts and conduct
14 See RCW 4.44.190.
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provoked 	or 	commenced 	the 	fight, 	then 	self-defense 	is 	not 	available 	as 	a
defense."
When the record includes credible evidence from which a reasonable juror
could find that the defendant 	provoked 	the 	need 	to 	act 	in self-defense, 	an
aggressor instruction is appropriate.15 	Whether the 	State produced sufficient
evidence to justify an aggressor instruction presents a question of law we review
de 	novo.16 	We view the 	evidence 	in the 	light most favorable 	to the 	party
requesting the instruction—here, the State.17
"[A]n aggressor or one who provokes an altercation" cannot successfully
invoke the right of self-defense.18 Although not favored, an aggressor instruction
is proper "'where (1) the jury can reasonably determine from the evidence that
the defendant provoked the fight, (2) the evidence conflicts as to whether the
defendant's 	conduct provoked the fight, 	or 	(3) the evidence shows that the
defendant made the first move by drawing a weapon.'"19 The provoking act must
be intentional conduct reasonably likely to provoke a belligerent response.20 	It
15 	State 	v. 	Riley, 	137 	Wn.2d 	904, 	909-10, 	976 	P.2d 	624 	(1999);
Manzanares v. Playhouse Corp., 25 Wn. App. 905, 910,611 P.2d 797 (1980).
16 State v. Anderson, 144 Wn. App. 85, 89, 180 P.3d 885 (2008).
17 State v. Wingate, 155 Wn.2d 817, 823 n.1, 122 P.3d 908 (2005).
18 Riley, 137 Wn.2d at 909.
19 State v. Stark, 158 Wn. App. 952, 959, 244 P.3d 433 (2010) (quoting
Anderson, 144 Wn. App. at 89); Riley, 137 Wn.2d at 909-10.
20 State v. Wasson, 54 Wn. App. 156, 159, 772 P.2d 1039 (1989).
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cannot be words alone.21 	And it cannot be the charged assault.22 But contrary to
Sullivan's 	assertions, 	the 	provoking 	act can 	be 	part 	of a 	"single 	course 	of
conduct" that leads to the assault.23
Sullivan contends that the trial court's first aggressor instruction here was
both incorrect and unsupported by the evidence. We disagree.
The 	instruction 	correctly stated 	the 	law. 	In 	State 	v. 	Wingate,24 	the
Supreme Court approved 	an 	instruction with nearly 	identical wording to the
instruction here. 	Moreover, the instruction here is more specific and thus more
favorable to the defendant than the one in Wingate. 	It required the jury find an
"intentional violent act" rather than just an "intentional act."25 	Sullivan relies on
State v. Arthur.26 	But the instructions here and in Wingate are distinguishable
from those in Arthur. 	In Arthur, this court found an instruction that referred to a
defendant's "unlawful act" to be 	overly vague, 	allowing the jury to speculate
21 Riley, 137 Wn.2d at 912-13.
22 State v. Kidd, 57 Wn. App. 95, 100, 786 P.2d 847 (1990).
23 Rather, "[i]t has long been established that the provoking act must also
be related to the eventual assault as to which self-defense is claimed." 	Wasson,
54 Wn. App. at 159. 	Sullivan cites decisions regarding double jeopardy and
unanimity instructions—both issues that are 	inapplicable here. 	See State v.
Villanueva-Gonzalez. 	180 	Wn.2d 	975, 	985, 	329 	P.3d 	78 	(2014); 	State 	v.
Rodriguez, 187 Wn. App. 922, 937, 352 P.3d 200, review denied, 184 Wn.2d
1011 (2015).
24 155 Wn.2d 817, 821, 122 P.3d 908 (2005).
25 Wingate. 155 Wn.2d at 821.
26 42 Wn. App. 120, 708 P.2d 1230 (1985).
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about which act may have been unlawful. 	The court reasoned that an "unlawful
act" could encompass an accidental collision with the victim's car. 	This court
held that a trial court must direct an aggressor instruction toward intentional acts
that the jury could reasonably assume would provoke a belligerent response.27
The trial courts did precisely that here and in Wingate.
The evidence also supports the trial court's decision to 	give the first
aggressor instruction. 	The evidence meets at least two of the three justifications
for offering the instruction.28 	First, Bohannon and Cessill's testimony conflicts
with Sullivan's about whether Sullivan's conduct provoked the fight. 	Both men
testified that Sullivan attempted to pull Cessill off the couch and threatened to
punch him, and Bohannon testified that Sullivan punched him in the face before
he or Cessill used force against her. 	While "words alone" cannot defeat a self-
defense claim, Sullivan combined her words with physical acts. 	Second, from
the same testimony, the jury could reasonably determine that Sullivan provoked
the fight. 	We therefore reject Sullivan's challenge to the aggressor instruction.
27 Arthur, 42 Wn. App. at 124-25.
28 See Stark, 158 Wn. App. at 959. 	As to the third justification, Sullivan
admits she was the first person to draw a weapon. 	But none of the witnesses
suggested that Sullivan was "ma[king] the first move" in doing so, as she and
Bohannon were already tussling in all three accounts.
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Multiple Assailants Instruction
Sullivan also contends that the trial court should have given this instruction
that she proposed:
As it is within the realm of common experience that two or more
people are more likely to inflict injury than only one such person,
the amount of force that is necessary to prevent the infliction of
injury, 	and thus is not unlawful, 	may vary with 	the number of
persons the defendant reasonably believes are about to commit or
assist in an offense against a person.
We review de novo a trial court's refusal to give an instruction based on a
ruling on the law.29 	Self-defense "instructions, read as a whole, must make the
relevant legal standard 'manifestly apparent to the average juror.'"30 	Each side is
entitled to have the jury instructed on its theory of the case when some evidence
supports that theory.31 	Failure to instruct on a defense theory when evidence
supports it is prejudicial error.32
In State 	v. 	Irons,33 this 	court 	held 	that 	the 	trial 	court's 	self-defense
instruction failed to "'make it manifestly clear to the jury that it could consider the
fact that Irons was faced with multiple assailants.'" 	Four people had surrounded
29 State v. Walker, 136 Wn.2d. 767, 772, 966 P.2d 883 (1998).
30 State v. 	Irons, 	101 	Wn. App. 	544, 550, 4 P.3d 174 (2000) (internal
quotation marks omitted) (quoting State v. LeFaber, 128 Wn.2d 896, 900, 913
P.2d 369 (1996)).
31 Rilev, 137 Wn.2d at 908 n. 1.
32 State v. Williams, 132 Wn.2d 248, 259-60, 937 P.2d 1052 (1997).
33 101 Wn. App. 544, 552, 4 P.3d 174 (2000).
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Irons. 	He had 	reason to fear all four, but he proceeded to injure only one.34
Even so, the trial court instructed the jury that for Irons to succeed on a self-
defense claim, 	the jury 	had 	to find that 	Irons 	"'reasonably believed 	that the
victim intended to . . . inflict death or great personal injury; and .. . that there was
imminent danger of such harm 	being accomplished.'"35 	This court found 	the
instruction allowed Irons to argue his theory of the case. 	But its inconsistency
with Irons's theory prejudiced his ability to present his "theory that he reasonably
believed 	he was 	in imminent danger of death 	or great personal 	injury from
multiple assailants—not just" the victim.36
Sullivan did not have to contend with any inconsistency. 	The trial court
instructed the jury that force is lawful when a person "reasonably believes that he
or she is about to be injured in preventing or attempting to prevent an offense
against the person, and when the force is not more than is necessary." 	Nothing
in this or other instructions limits the defendant's justification to a reasonable fear
of one person or eventual victims, as in Irons. 	Unlike Irons, Sullivan had the
opportunity to present her self-defense argument unimpeded by any inconsistent
34 Irons, 101 Wn. App. at 558-59.
35 Irons, 101 Wn. App. at 552 (alteration in original).
36 Irons, 101 Wn. App. at 559.
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jury instructions. 	Instead, the trial court's instructions made the applicable self-
defense standard "manifestly apparent" to the jury.37
Sullivan 	contends 	that 	failure 	to 	give 	the 	instruction 	prejudiced 	her
because she was entitled to argue her theory and sufficient evidence supported
the instruction.38
This court evaluates each jury instruction "in the context of the instructions
as a whole."39 	"It is not error to refuse to give a cumulative instruction or one
collateral to or repetitious of instructions already given."40
Sullivan's theory was self-defense, and the trial court instructed the jury on
that theory. 	Her testimony supports her theory that she was justified in defending
herself against 	both 	Bohannon 	and 	Cessill. 	But 	here 	a 	multiple 	assailant
instruction would have been cumulative of the trial court's other instructions. 	As
discussed above, the jury instructions adequately conveyed that Sullivan could
fear multiple assailants, including people she was not charged with injuring.
Because the 	trial 	court's 	self-defense 	instructions 	were 	sufficient and
allowed 	Sullivan to argue her theory of the case and 	because the proposed
37 Irons, 101 Wn. App. at 550.
38 See Williams, 132 Wn.2d at 259.
39 State v. Benn. 120 Wn.2d 631, 654-55, 845 P.2d 289 (1993).
40 Benn, 120 Wn.2d at 655.
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multiple assailant instruction was cumulative, we reject Sullivan's challenge to
the trial court's refusal to give that instruction.
Closing Arguments
Next, Sullivan contends that the prosecutor appealed to jurors' passions
and prejudices in asserting that Sullivan had implied she feared being sexually
assaulted.
When claiming prosecutorial misconduct, the defendant has the burden of
proving that the prosecutor's conduct was both improper and prejudicial.41 	In
closing arguments, attorneys have "'latitude to argue the facts in evidence and
reasonable inferences.'"42 	They may not, however, "urg[e] the jury to decide a
case based on evidence outside the record."43 	And they may not make "[m]ere
appeals to the jury's passion or prejudice."44
If a 	prosecutor's statements are 	improper, 	then 	this 	court determines
whether those 	statements 	prejudiced 	the 	defendant.45 	When, 	as 	here, 	the
defendant did not object at trial, the defendant waived 	any error unless the
misconduct was "so flagrant and ill intentioned that an instruction could not have
41 State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012).
42 State v. Dhaliwal. 150 Wn.2d 559, 577, 79 P.3d 432 (2003) (quoting
State v. Smith, 104 Wn.2d 497, 510, 707 P.2d 1306 (1985)).
43 State v. Pierce, 169 Wn. App. 533, 553, 280 P.3d 1158 (2012).
44 State v. Gregory, 158 Wn.2d 759, 808, 147 P.3d 1201 (2006).
45 Emery, 174 Wn.2d at 760.
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cured the resulting prejudice."46 	"Under this heightened standard, the defendant
must show that (1) 'no curative instruction would have obviated any prejudicial
effect on the jury' 	and 	(2) the misconduct resulted 	in 	prejudice that 'had a
substantial likelihood of affecting the jury verdict.'"47 	In short, this court asks,
"[H]as such a feeling of prejudice been engendered or located in the minds of the
jury as to prevent a [defendant] from having a fair trial?'"48
Here, in describing the fight, Sullivan testified,
A 	We were rolling around on the floor and 	next thing I
know I have a second boy on top of me. 	I—I don't know—I did not
see, I don't know why, I don't know how. 	But then I had two boys
on top of me.
A. 	I was terrified.
Q. 	And what were you terrified they might do to you?
A. 	I just knew that I was getting hurt. 	That's—that's all. 	And I
was scared and people were putting their hands on my body and
holding me against my will for no reason.
At other points in her testimony, Sullivan again referred to having "two
boys" "on top of me," and she spoke about her fears during the fight: 	"I was
46 Emery, 174 Wn.2d at 760-61. 	This court focuses more on whether an
instruction could 	have cured the prejudice than whether the comments were
flagrant and ill intentioned. Emery, 174 Wn.2d at 762.
47 Emery, 174 Wn.2d at 761 (quoting State v. Thorgerson, 172 Wn.2d 438,
455, 258 P.3d 43 (2011)).
48 Emery, 174 Wn.2d at 762 (alteration in original) (quoting Slatterv v. City
of Seattle, 169 Wash. 144, 148, 13 P.2d 464 (1932)).
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really scared. If I'm already getting beat up by two boys what's going to come
next, you know?"
Earlier 	in 	Sullivan's 	testimony, 	her 	counsel 	asked 	whether 	she 	and
Bohannon had a romantic relationship. 	Sullivan testified,
A. 	I woke up cuddled with him on the couch once, half dressed,
and I wasn't sure what happened because we were pretty drunk the
night before. 	And he's the one who informed that we 	had—had
sex. 	And I just kind of pretended it never happened and let it go.
He's—I'm not in any way, shape, or form romantically interested in
him.
Q. 	And you—you had just mentioned that time when you did
have—you were told you had a sexual—
A. 	I wasn't happy about it.
Q. 	Did you have—did you ever have a sexual encounter with
him any time besides that time?
A. 	No. 	No.
Q. 	And how long before this incident that we're—we've all been
talking about did that happen?
A. 	Maybe two weeks before this incident.
In closing, the prosecutor suggested that Sullivan had testified she was
"fearful of some sort of sexual assault" and argued that she had testified to the
two 	men 	"grabbing 	her 	body" 	because 	"she 	wants 	to 	have 	the 	strongest
emotional reaction," since "any kind of sexual assault is heinous."
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NO. 73217-0-1/18 (consol.
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We conclude that the prosecutor's argument reasonably characterized
Sullivan's testimony. 	In recounting the fight, Sullivan repeatedly mentioned her
fear at having "two boys" "on top of me," "putting their hands on my body." 	She
and her counsel both raised the question of where the situation would lead. 	This
account, combined with Sullivan's prior testimony that she regretted having sex
with Bohannon and would not have consented to it if she had been sober, make
it reasonable for the prosecutor to argue that she had implied she feared being
sexually assaulted. 	The prosecutor did not rely on facts outside the record or
appeal to the jury's passion or prejudice in suggesting that Sullivan wanted the
jury to "have the strongest emotional 	reaction."49 	Rather, 	that argument fell
within 	the prosecutor's wide latitude to draw reasonable inferences from 	the
evidence. 	Because the argument was not improper, we do not need to decide
whether an instruction could have cured any prejudice that resulted.
49 The prosecutor's remarks are also less prejudicial on their face than
remarks Washington courts have found improper. 	See State v. Miles, 73 Wn.2d
67, 	69-70, 	436 	P.2d 	198 (1968) 	(improper and 	prejudicial to 	admit hearsay
evidence alleging a plan by defendants to perpetrate a robbery like the one with
which they were charged); State v. Belgarde, 110 Wn.2d 504, 506-07, 755 P.2d
174 (1988) (improper and prejudicial to describe American Indian defendant as a
leader 	of 	a 	"'deadly 	group 	of 	madmen'" 	and 	"'butchers, 	that 	killed
indiscriminately'"); State v. Claflin, 38 Wn. App. 847, 850, 690 P.2d 1186 (1984)
(improper 	and 	prejudicial 	to 	read 	"vivid 	and 	highly 	inflammatory" 	poem 	by
anonymous rape victim to jury during closing argument).
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NO. 73217-0-1/19 (consol.
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Appellate Costs
Finally, Sullivan asks this court to deny appellate costs should the State
prevail.
"The commissioner or clerk 'will' award costs to the State if the State is the
substantially 	prevailing 	party 	on 	review, 	'unless 	the 	appellate 	court 	directs
otherwise 	in its decision 	terminating 	review.'"50 	This court 	has discretion 	to
consider the issue of appellate costs when a party raises the issue in its brief.51
In State v. Sinclair,52 this court used its discretion to deny appellate costs
to the State where the defendant remained 	indigent and this court saw "no
realistic possibility," given that the defendant was 66 years old and received a
280 month prison sentence, that he would be able to pay appellate costs.
We decline to decide appellate costs at this stage. 	Sullivan's age and
length of sentence distinguish her from Sinclair. 	If the commissioner or court
clerk 	approves 	a 	cost 	bill 	from 	the 	State, 	RCW 	10.73.160(4) 	allows 	the
sentencing court to remit costs if payment would "impose manifest hardship" on
Sullivan or her family.53
50 State v. Sinclair, 192 Wn. App. 380, 385-86, 367 P.3d 612 (quoting RAP
14.2), review denied, 185 Wn.2d 1034 (2016).
51 Sinclair, 192 Wn. App. at 388-90.
52 192 Wn. App. 380, 393, 367 P.3d 612, review denied, 185 Wn.2d 1034
(2016).
53 State v. Nolan, 98 Wn. App. 75, 79, 988 P.2d 473 (1999).
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NO. 73217-0-1/20 (consol.
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CCAP Sentence for Deadly Weapon Enhancement
The State contends, in a cross appeal, that the trial court did not have the
authority to sentence Sullivan to no time in confinement for the mandatory one-
year deadly weapon enhancement. 	The trial court instead sentenced her to one
year in King County's CCAP.
Second degree assault is a class B felony and a violent offense.54 	Class
B felonies committed after 1995 with a deadly weapon other than a firearm carry
a mandatory one-year enhancement.55 	When this enhancement applies, courts
must impose it "even if facts permit a departure from the standard range for the
underlying 	offense."56 	"Notwithstanding 	any 	other 	provision 	of 	law," 	the
enhancement must "be served 	in total 	confinement."57 	With exceptions 	not
applicable 	here, 	"'[t]otal confinement' 	means confinement 	inside the 	physical
boundaries of a facility or institution operated or utilized under contract by the
state or any other unit of government for twenty-four hours a day."58
54 	RCW 9A.36.021(2)(a); 	RCW 9.94A.030(55)(a)(viii). 	Amendments to
RCW 9.94A.030, effective August 1, 2009, changed the numbering but not the
relevant content of the definitions.
55 RCW 9.94A.533(4)(b).
56 	State 	v. 	Graham, 	181 	Wn.2d 	878, 	884, 	337 	P.3d 	319 	(2014)
(interpreting RCW 9.94A.533).
57 RCW 9.94A.533(4)(e).
58 RCW 9.94A.030(52).
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NO. 73217-0-1/21 (consol.
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RCW 	9.94A.680 	allows 	for 	alternative 	sentencing 	for 	offenders 	with
sentences of one year or shorter. 	The only alternative that applies to violent
offenders allows that "[o]ne day of partial confinement may be substituted for one
day of total confinement."59
Here, the trial court imposed the mandatory one-year sentence for the
deadly 	weapon 	enhancement. 	That 	sentence 	must 	be 	served 	in 	total
confinement.60 	Since RCW 9.94A.680(1) allows a sentencing court to substitute
partial confinement for total confinement, the trial court could sentence Sullivan
to one year of CCAP only if CCAP qualifies as "partial confinement."
As 	Sullivan concedes, the Supreme Court already decided, in State v.
Medina,61 that CCAP 	is not "partial confinement." 	Sullivan asks this court to
examine 	the 	statutory 	scheme 	to 	decide 	if 	the 	difference 	between 	her
circumstances and the defendant's in Medina justifies a 	departure from 	that
binding 	opinion. 	She 	suggests 	no 	distinctions, 	though, 	and 	we 	see 	none.
Medina 	prohibited the trial court from 	allowing 	Sullivan to satisfy the deadly
weapon enhancement with CCAP participation.
59RCW9.94A.680(1).
60 See RCW 9.94A.533(4)(e).
61 Medina, 180 Wn.2d at 289 ("[W]e do not think that participation in the
educational, counseling, and service-oriented programs entailed in CCAP meets
the statutory definition of 'confinement.'").
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NO. 73217-0-1/22 (consol.
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Credit for Time Served in CCAP
The State also contends that the trial court could not credit Sullivan for
time she already served in CCAP toward the one-year deadly weapon sentence.
An offender sentenced to confinement has both a 	constitutional and a
statutory right to receive credit for time the offender served before sentencing.62
"[A] 	defendant's 	ineligibility 	for 	a 	particular 	type 	of 	partial 	confinement
postconviction is not relevant to the question of whether that defendant must be
credited for pretrial time served in that same type of partial confinement."63
RCW 9.94A.680(3) allows the court to credit the offender for time served
before sentencing "in an available county supervised community option." 	As
noted above, that provision applies only to "offenders convicted of nonviolent and
nonsex offenses."64 	The Supreme Court confirmed, in Medina, that the statute
does not permit the community option for violent offenders.65 	The trial court thus
exceeded its authority in crediting Sullivan for time served in CCAP toward her
one-year sentence for a violent offense.
62 State v. Speaks, 119 Wn.2d 204, 206, 829 P.2d 1096 (1992); RCW
9.94A.505(6).
63 Medina, 180 Wn.2d at 288 (citing Speaks, 119 Wn.2d at 208).
64 RCW 9.94A.680(3).
65 Medina, 180 Wn.2d 	at 290 	(applying canon 	of expressio 	unius est
exclusio alterius). 	As the Supreme Court determined that the 2009 amendments
adding 9.94A.680(3) did not apply retroactively to Medina's crime, that portion of
the opinion is dicta. 	Nonetheless, we follow the Supreme Court's guidance.
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NO. 73217-0-1/23 (consol.
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Sullivan 	does 	not 	contest 	the 	State's 	statutory 	arguments. 	She
challenges, instead, 	the injustice, as a matter of policy, of sentencing her to
confinement 	because 	CCAP 	would 	better 	benefit 	her, 	her 	health, 	and 	the
community. 	She further notes the inherent inconsistency of sentencing her to 12
months for the deadly weapon enhancement while imposing 0 months for the
underlying crime due to Bohannon's partial culpability.
Whatever the trial court 	may 	have thought about the wisdom 	behind
imposing a mandatory year of confinementfor any crime committed with a deadly
weapon, Washington courts have "consistently held that the 	fixing 	of legal
punishments for criminal offenses is a legislative function."66 	The legislature's
enactments 	prohibited 	the 	trial 	court from 	sentencing 	Sullivan 	to 	CCAP 	or
awarding her credit for time already spent in CCAP. 	We therefore vacate those
provisions and remand the case to the trial court for resentencing consistent with
this opinion.
66 State v. Ammons, 105 Wn.2d 175, 180, 713 P.2d 719, 718 P.2d 796
(1986).
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NO. 73217-0-1/24 (consol.
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CONCLUSION
We affirm Sullivan's conviction and remand for resentencing.
WE CONCUR:
A~J(.S
\ ^ 	*> '4fcb<&WLf 	^
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