State Of Washington v. Jimmy Joseph Perkins ( 2014 )


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    COURT OF APPEALS
    DIVISION 11
    2014 DEC 30 AM 9: 149
    STATE OF WASHINGTON
    BY
    UTY
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION II
    STATE OF WASHINGTON,                                                       No. 44533 -6 -II
    Respondent,
    v.
    JIMMY JOSEPH PERKINS,                                              UNPUBLISHED OPINION
    Appellant.
    LEE, J. —   A   jury   found   Jimmy   Perkins guilty   of second   degree   assault.   Perkins appeals
    his conviction and sentence, arguing that ( 1) the prosecutor committed misconduct during closing
    arguments, and ( 2) the court miscalculated his offender score by adding 1 point for being on
    community custody.       Because the prosecutor did not commit misconduct and the trial court
    properly calculated Perkins' offender score, we affirm.
    FACTS
    Jimmy Perkins and John Mayfield were cellmates in the Cowlitz County Jail. Perkins was
    in custody for a probation violation, and Mayfield was in custody for an alleged assault. Mayfield
    and Perkins had confrontations over various issues. In the common area of the cell unit, Mayfield
    questioned   Perkins   about   Mayfield' s missing candy       and asked   Perkins to leave his belongings
    No. 44533 -6 -II
    alone.   Perkins    asked     if Mayfield    was     insinuating     that he   was a " punk   b *tch," to which Mayfield
    responded   that Perkins        was a " punk         b *tch."   1 Verbatim Report of Proceedings ( VRP) at 96.
    Perkins approached Mayfield and punched him in the face. In response, Mayfield held Perkins in
    a headlock until an inmate trustee broke up the fight.
    After that fight, Mayfield walked around the cell unit common area insulting Perkins and
    saying, "[ W] e [   can]   take   care of   it ...   when we get      locked in."     1 VRP at 129. Perkins motioned
    for Mayfield to come into their cell to fight again, but Mayfield continued to walk around the
    common     area.     Perkins then      crossed        the   common      area   and   hit Mayfield.    They fought until
    correctional officers intervened. Mayfield was examined by a doctor, who determined that he had
    a broken cheekbone and that he needed surgery.
    The State charged Perkins with second degree assault for the second fight. The trial court
    admitted a surveillance video of the cell unit showing the fight between Perkins and Mayfield that
    resulted in the charge.
    Perkins claimed self defense
    -       and testified at trial that after the first fight, Mayfield
    threatened to rape him when they were locked in their cell. Perkins also testified that " you can't
    let somebody      continue     to talk like that     without    responding, saying something to him," and there' s
    the   code of   the jail,"   that if an inmate allows someone to insult him without fighting or standing
    up for himself, that insult becomes true. 2 VRP at 240; 3 VRP at 294. Perkins then testified that
    he went into his cell to wait for Mayfield to fight.
    On cross -examination, Perkins testified that Mayfield wanted to fight and that Mayfield
    knew Perkins was coming after him. Specifically, in response to the State' s question as to whether
    he wove through the seating area in the cell unit to sneak over to hit Mayfield,
    2
    No. 44533 -6 -II
    A. There' s no sneaking.
    Q. Okay, so you were directly going after him?
    A. Well, he knew what I was doing the whole time.
    Q. He knew that you were going to come at him and beat him?
    A. The whole time he wanted to fight.
    2 VRP     at   250.    Perkins further testified on cross -examination that Mayfield only hit him after
    Perkins went after him.
    During the State' s cross -examination, Perkins interrupted the prosecutor, stating that
    Mayfield       was   standing    outside     the   courtroom window       trying   to intimidate him.   The prosecutor
    said that he did not see Mayfield. The trial court directed Perkins to answer the pending question,
    stating that the trial         court    would      control   the   hallway. The prosecutor continued questioning
    Perkins and defense counsel interrupted, asking the trial court if Mayfield was outside the
    courtroom. Again, Perkins said that Mayfield was staring at him, and again, the prosecutor said
    he did   not see      him. The trial court directed Perkins to answer the question and stated that it had
    control of the courtroom.
    In closing arguments, the prosecutor argued that Perkins did not have the right to hit
    Mayfield based         on   Mayfield' s insults.       The prosecutor referenced Perkins' testimony about " the
    code of   the jail."     3 VRP     at   294. The prosecutor argued that the " code of the jail" did not make
    Perkins' use of force reasonable or deprive Perkins of his free choice to exercise other options and
    not   fight Mayfield. 3 VRP             at   294. The prosecutor argued that if Perkins was concerned for his
    safety, " he had       a number of options aside             from [ fighting].     He could have gone to, you know,
    exclusive      custody...      The Defendant did not have a right to defend himself because the Defendant
    created   both    of   those   situations."     3 VRP at 294, 306. The prosecutor also suggested that Perkins
    3
    No. 44533 -6 -II
    was trying to distract the jury when he complained that Mayfield was outside the courtroom
    because Perkins had just gotten caught giving contradictory testimony.
    During rebuttal argument, the prosecutor reminded the jury that they are expected to read
    the   jury   instructions.      The prosecutor then rebutted Perkins' assertion that being insulted was a
    good enough reason to fight by arguing that Perkins did not have reasonable grounds for believing
    that he was about to be attacked and that the expectation of a future fight does not create the right
    to use force.
    The prosecutor also argued that he felt threatened when he was examining Perkins and that
    Perkins demonstrated            aggressive   tendencies      on   the    stand.    Perkins objected and moved for a
    mistrial.      The trial court denied the mistrial and instructed the jury to disregard the prosecutor' s
    comments about his personal feelings.
    The   prosecutor' s rebuttal argument continued without additional objections.                       He argued
    that Perkins " was and is the aggressor" and that the jury saw " how quickly he was to rise to anger,
    and   that is   suggestive of someone who' s          going to    attack someone."           3 VRP at 346. The prosecutor
    also suggested that Perkins and defense counsel used " diverting tactics" when Perkins could not
    change       his story   or   talk his way   out of   the situation.      3 VRP        at   346. " That' s what his Defense
    Counsel did here earlier. And that' s what they get paid to do. Come here and divert your attention
    from   what     really happened."        3 VRP at 346.
    The jury found Perkins guilty of second degree assault. Perkins stipulated to his criminal
    history,     stating that " he   wants   to be   sentenced   today      and get   it   over with."   3 VRP at 368. During
    sentencing, Perkins did not object to the prosecutor' s references to the applicable sentencing range
    or Perkins' calculated offender score. The felony judgment and sentence showed that Perkins was
    4
    No. 44533 -6 -II
    on community custody when the assault took place, and that 1. point was added to his offender
    score as a result. The trial court sentenced Perkins to a mid -range sentence. Perkins appeals.
    ANALYSIS
    A.       PROSECUTORIAL MISCONDUCT
    Perkins      alleges     that the   prosecutor   committed       misconduct    by (   1)   commenting on his
    personal   feelings    about      Perkins' demeanor       while   testifying, ( 2) arguing Perkins' propensity for
    aggression, (   3) misstating the law of self -defense and lowering the State' s burden of proof, (4)
    offering his personal opinion on Perkins' credibility and introducing facts not in evidence, and (5)
    disparaging     the   role of     defense    counsel.   Perkins also alleges that the cumulative effect of the
    prosecutor' s misconduct requires reversal. Perkins' claims of prosecutorial misconduct fail.
    To prevail on a claim of prosecutorial misconduct, Perkins must show that the prosecutor' s
    conduct was     both improper          and prejudicial.    State v. Emery, 
    174 Wash. 2d 741
    , 756, 
    278 P.3d 653
    2012) ( citing State       v.   Thorgerson, 
    172 Wash. 2d 438
    , 442, 
    258 P.3d 43
    ( 2011)). Once a defendant
    has demonstrated that the prosecutor' s conduct was improper, we evaluate the defendant' s claim
    of prejudice under two different standards of review, depending on whether the defendant objected
    to the   misconduct at       trial.   Emery,   174 Wn.    App.    at   760 -61.   If the defendant objected, he must
    show that the prosecutor' s misconduct resulted in prejudice that had a substantial likelihood of
    affecting the jury' s verdict. 
    Emery, 174 Wash. 2d at 760
    -61 ( citing State v. Anderson, 
    153 Wash. App. 417
    , 427, 
    220 P.3d 1273
    , review denied, 
    170 Wash. 2d 1002
    ( 2009)).
    If the defendant did not object at trial, the defendant is deemed to have waived any error,
    unless the prosecutor' s misconduct was so flagrant and ill intentioned. 
    Emery, 174 Wash. 2d at 760
    -
    61 ( citing State     v.   Stenson, 
    132 Wash. 2d 668
    , 727, 
    940 P.2d 1239
    ( 1997), cert. denied, 
    523 U.S. 5
    No. 44533 -6 -II
    1008 ( 1998)).        The defendant is presumed to have waived any error by not objecting because
    objections are required to prevent additional improper remarks and abuse of the appellate process.
    
    Emery, 174 Wash. 2d at 762
    . Therefore, when there is no objection, we apply a heightened standard
    requiring the defendant to          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. '   
    Emery, 174 Wash. 2d at 761
    ( quoting 
    Thorgerson, 172 Wash. 2d at 455
    ).    When reviewing a prosecutor' s misconduct that was not objected to, we focus
    less on whether the prosecutor' s misconduct was flagrant and ill intentioned and more on whether
    the resulting   prejudice could     have been     cured."    
    Emery, 174 Wash. 2d at 762
    .
    In closing argument, prosecutors are afforded wide latitude to draw and express reasonable
    inferences from the evidence. State v. Reed, 
    168 Wash. App. 553
    , 577, 
    278 P.3d 203
    , review denied,
    
    176 Wash. 2d 1009
    ( 2012).           When analyzing prejudice, we do not look at the comment in isolation,
    but in the context of the total argument, the issues in the case, the evidence, and the instructions
    given   to the jury. State   v.   Yates, 
    161 Wash. 2d 714
    , 774, 
    168 P.3d 359
    ( 2007), cent. denied, 
    554 U.S. 922
    ( 2008).     We also presume that the jury follows the court' s instructions. Anderson, 153 Wn.
    App. at 428.
    1.        Arguments based on the prosecutor' s personal feelings
    During closing arguments, the prosecutor stated:
    And ifyou want to talk about is [ sic] being threatened, you saw how the Defendant
    acted when Ipushed his buttons. I thought I was being threatened. I thought I was
    going to be attacked, and did I? Did I jump over that box and punch him? I didn' t.
    I was a little concerned. But I didn' t punch him. Twenty minutes he waited as John
    Mayfield walked around .. .
    6
    No. 44533 -6 -II
    3 VRP   at    339 -40 (    emphasis        added) (    noting the        portion   Perkins    assigned     error   to).   Perkins
    objected.     Outside the       presence of      the   jury,   Perkins     moved    for   a mistrial.    The trial court denied
    the motion. 1 The trial court instead instructed the jury as follows:
    I just    need    to          of one thing: That the lawyers' remarks, statements,
    remind you of —
    and arguments are intended to help you understand the evidence and apply the law.
    It' s important, however, for you [to] remember that the lawyers' statements are not
    evidence. You must disregard any remark, statement, or argument that isthat is
    not supported by the evidence or the law in my instruction —instructions. The
    evidence         is the   testimony     and    the     exhibits.    The Prosecutor made an argument
    regarding Mr. Perkins' demeanor on the stand yesterday and his feelings about that.
    You are instructed to disregard that.
    3 VRP at 345 -46.
    Perkins asserts that this jury instruction was insufficient to cure the prejudicial effect of the
    prosecutor' s statements and that the prosecutor' s statements could not be remedied by a curative
    instruction, because           they   were   flagrant, ill intentioned,       and prejudicial.        Perkins also alleges that
    the trial court should have instructed the jury not to consider the propensity evidence.
    Perkins has failed to show that the curative instruction was insufficient to cure the
    prejudicial effect.        The jury instruction specifically targeted the wrongful conduct by instructing
    the jury to disregard the prosecutor' s statements regarding his personal feelings about Perkins'
    demeanor      on   the   stand.       Additionally, the State presented multiple witnesses who testified that
    Perkins was the aggressor in the fight, and showed a video of the fight. Perkins testified that he
    went after    Mayfield         and    hit him first. In the context of the entire argument, all of the evidence,
    1 Perkins does not appeal the trial court' s denial of his motion for mistrial; he only appeals the
    prosecutor'   s    improper       statements.    His    motion     for   mistrial preserved     the     issues for   appeal.   State
    v.Lindsay,     
    180 Wash. 2d 423
    , 430 -31, 
    326 P.3d 125
    ( 2014) ( finding
    that that a motion for mistrial
    during the prosecutor' s closing arguments preserved the challenge for prosecutorial misconduct).
    7
    No. 44533 -6 -II
    and the jury instruction, Perkins has not shown a substantial likelihood that any resulting prejudice
    from the     prosecutor' s     statements    affected    the   jury' s.   verdict.   Perkins' claim of prosecutorial
    misconduct based on the prosecutor' s statements regarding his personal feelings fails.
    2.            Arguments based on propensity
    Perkins argues that the following statements were improper because the prosecutor
    commented on Perkins' propensity for aggression.
    The point of everything is that the Defendant is the aggressor. He was and is the
    aggressor. You did see his temper. You did see how quickly he was to rise to anger,
    and that is suggestive of someone who 's going to go attack someone.      It is very
    suggestive ofsomeone who is going to attack someone. When he' s caught in certain
    areas where he' s unable to change his story or talk his way out of it, the Defendant
    was —quickly resorted to flashing anger, quickly.
    3 VRP   at   346 ( emphasis      added) ( noting   the   portion   Perkins    assigned error      to).   Perkins did not
    object; accordingly, he has waived any error unless he can show that the " misconduct was so
    flagrant   and   ill intentioned that   an   instruction   would not       have   cured   the   prejudice."   
    Emery, 174 Wash. 2d at 761
    ( citing 
    Stenson, 132 Wash. 2d at 727
    ).
    Perkins'        claim fails because even assuming, without deciding, that the prosecutor' s
    statements were improper, Perkins has failed to show that any resulting prejudice could not have
    been   cured     by   an   instruction. The State   presented       strong    evidence of       Perkins'   guilt.   The State
    presented multiple witnesses who testified that Perkins was the aggressor in the fight and the jury
    viewed a video of the fight. Perkins himself testified that he hit Mayfield first. Thus, in the context
    of the entire argument and the. evidence, Perkins has not shown that the misconduct was so flagrant
    and ill intentioned that it could not have been cured by a jury instruction or that the resulting
    prejudice had a substantial likelihood of affecting the jury' s verdict. Therefore, we deem Perkins'
    8
    No. 44533 -6 -II
    claim of prosecutorial misconduct based on the prosecutor' s statements regarding propensity
    waived.
    3.            Prosecutor' s statements relating to the law of self -defense
    Perkins argues that the prosecutor committed misconduct by misstating the law of self -
    defense and lowering the State' s burden of proof. Perkins claims that the prosecutor did this by
    improperly arguing that Perkins' use of force was not lawful because Perkins did not retreat or ask
    for protection, that force is unlawful in response to threatening words, and that Perkins could not
    lawfully use force to defend himself until he was being physically attacked.
    During closing, the prosecutor argued:
    He     was    there only for      a   three -day stint   in DOC. He knew he         was   going. There' s
    no reason for him to really be concerned about an ongoing, prolonged issue about
    being a " bitch" or a " punk." And ifthere was such a concern, he had a number of
    options aside from that. He could have gone to; you know, exclusive custody. He
    could     have    gone, pushed one          of any of these buttons here,         and asked,         say, " You
    know      what,   Ifeel like I'm       being   threatened." "     I've gotjust a little bit of time left to
    serve out on        my DOC hold,          and   I   can go." "    Can you guys help me?" " Can you
    get me        into protective custody ?" He didn' t do that. Instead, when John Mayfield
    was going to throw away his water bottles, the Defendant went and hit him.
    3 VRP   at   294 -95 (   emphasis added) (         noting the portion Perkins assigned error to).
    He' s there until the next morning. He had other options, and he chose to show that
    he wasn' t a punk bitch. All these red "X's" are other options, and not once did he
    take those other options.           Instead, he created an option. Not something that was
    present       tense.   He   was   dealing with something way down in the future —if it ever.
    occurred.
    3 VRP   at    339 -40 ( emphasis     added) (      noting the portion Perkins assigned error to).
    Sure,   they    were            Sure, Mr. Mayfield probably had some colorful
    saying things.
    language, but does that really give the Defendant the right to go and beat up Mr.
    Mayfield? The answer is " no." It doesn' t give him the right to do that. The only
    thing that Mr. Mayfield was doing was insulting him. Now there 's an old saying,
    Sticks   and stones    may break my bones, but              words   may   never   hurt   me."    And you
    9
    No. 44533 -6 -II
    heard something about the code of the jail and how, you know, you call someone a
    a "   bitch"     or a " punk, "you' ve just made        them   into   a "   bitch"   or a " punk" unless
    they stand upfor themselves. That' s a choice. That' s a choice that someone makes
    to either abide by that code or not abide by that code. And the Defendant made a
    choice to abide by that code.
    3 VRP   at   293 -94 ( emphasis         added) (   noting the portion Perkins assigned error to).
    Now his       being   attacked — that is a really, really important distinction here
    yet, again, and this whole idea of what' s self -defense is about. That the Defendant
    had to have reasonable groundsfor believing that he is being attacked and to stand
    his ground. Is being attacked. That 's present tense. Right then, right there, he gets
    to defend himself. Not something in the future, not something an hour -and -a -half
    later, then,         right   then, right now,   present   tense — is       being.    That' s what has to be
    going through            his brain. Is     being    attacked.   That' s what justifies his right to go
    andbeat up John Mayfield. You saw the [...]                     video. Was he being attacked? No.
    What he did was — he kicked off his slippers, went around these tables, and went at
    John Mayfield who was not expecting him.
    3 VRP   at   338 (     emphasis added) ( noting       the   portion   Perkins      assigned error     to).   Perkins did not
    object to these statements at trial.
    Viewing the prosecutor' s statement in the context of the total argument, the prosecutor did
    not misstate the law. Rather, the prosecutor argued that the facts do not support Perkins' claim of
    defense.
    self -             "   A prosecutor can certainly argue that the evidence does not support the defense
    theory."     State      v.   Lindsay,   
    180 Wash. 2d 423
    , 431 -32, 
    326 P.3d 125
    , 130 ( 2014) (                     citing State v.
    Russell, 
    125 Wash. 2d 24
    , 87, 
    882 P.2d 747
    ( 1994),                       cert.   denied, 
    514 U.S. 1129
    ( 1995)).            The
    prosecutor does not commit misconduct by arguing reasonable inferences from the facts in
    evidence. State v. Smith, 
    104 Wash. 2d 497
    , 510 -11, 
    707 P.2d 1306
    ( 1985)).
    10
    No. 44533 -6 -II
    The prosecutor' s statements mirror the language ofthe jury instruction and do not misstate
    the law.3 The prosecutor argued that, based on the circumstances, Perkins' use of force was not
    reasonable. The prosecutor' s statements do not misstate the law of self -defense, lower the State' s
    burden   of proof, or        contradict   the   jury   instructions.    The prosecutor' s statements were not
    improper.
    Even if the prosecutor' s statements were improper, Perkins has not shown that the
    misconduct was so flagrant and ill intentioned that it could not have been cured by an instruction.
    Moreover, as stated above, the State presented strong evidence against Perkins. In the context of
    the entire argument and the evidence, Perkins has not shown a substantial likelihood that any
    resulting prejudice affected the jury' s verdict, and therefore, his claim of prosecutorial misconduct
    fails.
    4.        Arguing facts not in evidence and offering a personal opinion on Perkins'
    credibility
    Perkins alleges that the prosecutor argued " facts" not in evidence and provided a personal
    opinion of Perkins' credibility by suggesting that Perkins fabricated a diversion. Br. of Appellant
    at 18.
    When I had him pinpoint it on that, and he couldn' t get out of that statement, as a
    person who knew he was caught in that statement, he wanted to divert your
    attention.   He   wanted you all       to think, " Oh, my     goodness."      He was really being
    intimidated    by   John Mayfield. So         what   does the Defendant do? " Tell your client,
    tell your victim to quit     intimidating      me. "   And   what   did you   guys all   do?   You all
    2 " Number 14A. It is lawful for a person who is in a place where that person has a right to be and
    who has reasonable grounds for believing that he is being attacked to stand his ground and defend
    against such attack by the use of lawful force. The law does not impose a duty to retreat." 3 VRP
    at288.
    3 Perkins does not challenge the self -defense instructions given to the jury.
    11
    No. 44533 -6 -II
    turned      and   looked    at   doors. You looked           out   there,   and you forget for a brief
    moment what         he   was   saying. " John was in,this corner intimidating me." And then,
    I knew it        was on,    so I kicked off my slippers." Defendant' s right therethere' s
    his   slippers.     Where'    John? Right there walking past Table 3 — right there. Is he
    s
    even    looking at       the Defendant? Is he saying, " Let' s go. Let' s fight. " Now, he' s
    not.    John' slooking           at   the   ground,   looking      away. And look at the Defendant; he
    just goes over to him. Let' s watch that.
    3 VRP    at   302 -03 (   emphasis added) ( noting             the   portion   Perkins   assigned error   to). Perkins did not
    object to the statements at trial.
    Perkins has not shown that the prosecutor argued facts outside of the record. Prosecutors
    are afforded wide          latitude to draw          and express reasonable          inferences from the     evidence.   Reed,
    168 Wn.       App.   at   577.    The prosecutor argued that Perkins wanted the jury to think that .he was
    intimidated     by   Mayfield.       This argument is a reasonable inference from the facts on the record,4
    and from Perkins' theory of self -defense. Further, the prosecutor' s statement that the jury "turned
    and looked at the doors" is a recitation of what happened in the courtroom, not an argument of
    facts not in evidence. 3 VRP at 302.
    Perkins also has not shown that the prosecutor offered his own opinion about Perkins'
    credibility..    Perkins properly notes that there is no evidence to suggest that Mayfield was not
    outside the courtroom. However, the prosecutor did not say that he believed Perkins was lying or
    that there was evidence that Perkins                   was   lying. He recounted Perkins' testimony, which was on
    the record, and suggested that Perkins interrupted him to divert the jury' s attention from the
    4 The prosecutor referenced Perkins' interruption during the State' s cross -examination, when
    Perkins said, "[ w]hy is your witness trying to intimidate me, Your Honor, now by standing outside
    that   window and         staring   at me."      2 VRP at 253.
    12
    No. 44533 -6 -II
    question, which     is   a reasonable   inference from the facts        on   the   record.     The prosecutor did not
    offer a personal opinion and the statements were not improper.
    Even if the statements were improper, Perkins has not shown that the misconduct was so
    flagrant and ill intentioned that it could not have been cured by an instruction. Moreover, the State
    played a video of the fight, and presented multiple witnesses testifying that Perkins was the
    aggressor in the fight. Perkins testified that he went after Mayfield and hit him first. In the context
    of the entire argument and the evidence, Perkins has not shown a substantial likelihood that any
    resulting prejudice affected the jury' s verdict. Therefore, Perkins' challenge fails.
    5.         Comments disparaging defense counsel
    Perkins alleges that the prosecutor' s comments about Perkins and defense counsel were
    disparaging   and   flagrant, ill intentioned,    and prejudicial.       Perkins assigns error to the following
    statements made by the prosecutor during closing arguments:
    When he' s caught in certain areas where he' s unable to change his story or talk his
    way out of it, the Defendant was —quickly resorted to flashing anger, quickly. And
    if that didn' t work for him, then he used diverting tactics. That' s what his Defense
    Counsel did here       earlier.   And that' s   what     they   get paid    to   do.   Come here and
    divert   your attention   from     what   really happened.
    What really happened is the
    Defendant assaulted John Mayfield twice. He did it without lawful authority.
    3 VRP   at   346 ( emphasis    added) (   noting the   portion   Perkins     assigned error      to.)   Perkins did not
    object to the above statement, and the State concedes that the above statement was improper, but
    argues that it was not prejudicial.
    A prosecutor may not " disparagingly comment on defense counsel' s role or impugn the
    defense lawyer'     s   integrity." 
    Thorgerson, 172 Wash. 2d at 451
    ( citing State v. Warren, 
    265 Wash. 2d 17
    , 29 -30, 
    195 P.3d 940
    ( 2008)).       Here, it is clear that the prosecutor made a statement saying that
    13
    No. 44533 -6 -II
    the defense       counsel    is   paid   to divert        attention,     and     that is improper.        We accept the State' s
    concession that the prosecutor' s statement was improper.
    But, Perkins has not shown that the misconduct was so flagrant and ill intentioned that it
    could not       have been    cured   by    a   jury   instruction.         Moreover, as previously discussed, given the
    context of the entire argument and the evidence, Perkins has not shown a substantial likelihood
    that any resulting prejudice affected the jury' s verdict.
    6.           Cumulative effect
    Perkins       argues   that the alleged improper             statements, "     whether considered individually or
    in the   aggregate, require reversal."              Br.   of   Appellant    at   20. ‘" [ T] he cumulative effect of repetitive
    prejudicial prosecutorial misconduct may be so flagrant that no instruction or series of instructions
    can erase      their   combined prejudicial effect.               
    Lindsay, 180 Wash. 2d at 443
    ( quoting In re Glasmann,
    
    175 Wash. 2d 696
    , 707, 
    286 P.3d 673
    ( 2012));                     State v. Walker, 
    164 Wash. App. 724
    , 738, 
    265 P.3d 191
    2011) ( Cumulative error applies when the prosecutor makes " improper comments not just once
    or twice, but frequently. ").
    Here, the prosecutor committed misconduct when he disparaged the role of defense
    counsel,       saying that it is    paid   to divert the         jury' s    attention.    Courts apply the cumulative error
    doctrine to       cases    of repetitive       or   frequent     misconduct —one          instance is neither repetitive nor
    frequent. Accordingly, the cumulative error doctrine does not apply here.
    B. OFFENDER SCORE CALCULATION
    Perkins alleges that the trial court erred by .miscalculating his offender score by adding 1
    point    because he       was under      community custody             at   the time     of   the   assault.   Interpretation of the
    14
    No. 44533 -6 -II
    Sentencing Reform Act (SRA) is a question of law, which we review de novo. State v. Jones, 
    172 Wash. 2d 236
    , 242, 
    257 P.3d 616
    ( 2011).
    The SRA provides that 1 point is added if the present conviction is for an offense committed
    while    the    offender was under             community custody. RCW 9. 94A.525( 19).              Community custody is
    tolled    if    a    defendant is in          confinement, "     unless the offender is detained pursuant to RCW
    9. 94A.740           or   9. 94A. 631 ...        for confinement pursuant to sanctions imposed for violation of
    sentence        conditions,         in   which   case,   the   period   of   community custody      shall not       toll."   RCW
    9. 94A. 171( 3)( a).
    The State argues that Perkins cannot challenge his offender score on appeal because he
    stipulated          to his   criminal       history. Washington courts " hold that in general a defendant cannot
    waive     a challenge          to   a miscalculated offender score"            when   based   on   legal   error.     In re Pers.
    Restraint of Goodwin, 
    146 Wash. 2d 861
    , 874, 
    50 P.3d 618
    ( 2002). "[                            T]he court may rely on the
    defendant' s stipulation or acknowledgement of prior convictions to calculate the offender score."
    State    v.   James, 138 Wn.             App. 628, 643,        
    158 P.3d 102
    ( 2007), review denied, 
    163 Wash. 2d 1013
    2008).        When a defendant stipulates to his prior convictions to calculate his offender score, he
    cannot object to the calculation on appeal. State v. Cadwallader, 
    155 Wash. 2d 867
    , 875, 
    123 P.3d 456
    ( 2005).
    Here, Perkins agreed to his criminal history, and he expressed to the court that he wanted
    to get sentencing over with and did not want to contest his criminal history. The criminal history
    that Perkins stipulated to listed his prior convictions and showed that he was on community
    custody        at   the time     of   the   offense.   Taking the record as a whole, because Perkins affirmatively
    15
    No. 44533 -6 -II
    agreed to his criminal history and the fact that he was on community custody at the time of his
    offense, he cannot challenge it on appeal.
    We affirm Perkins' conviction and sentence.
    A majority of the panel having determined that this opinion will not be printed in the
    Washington Appellate Reports, but will be filed for public record pursuant to RCW 2. 06. 040, it is
    so ordered.
    We concur:
    16