State of Washington v. Jessica Nicole Ravenheart ( 2018 )

FILED
JANUARY 4, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 34739-7-III
Respondent, )
)
V. )
)
JESSICA NICOLE RAVENHEART, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. -Jessica Ravenheart appeals from convictions for third and fourth
degree assault, and interference with a report of domestic violence, arguing that the
prosecutor's comments in rebuttal deprived her of a fair trial. We affirm.
FACTS
Ms. Ravenheart was arrested for domestic violence after throwing a fire
extinguisher at her fiance. She also prevented him from calling for assistance by
throwing the telephone in the toilet. When denied pain medication, she twice struck an
officer. These actions resulted, respectively, in the charges of fourth degree assault,
interference with a domestic violence report, and third degree assault.
No. 34739-7-111
State v. Ravenheart
The defense offered evidence at trial that Ms. Ravenheart suffered from post­
traumatic stress disorder and obtained instructions for a diminished capacity defense.
Her counsel opened his argument:
Apology accepted. That's where this case should have ended. This is a
mental health, this is a-a psychological issue, this is some other issue, but
this is not a criminal justice issue. Apology accepted. That should have
been the end of it. Instead of being here today, and going through this, and
dragging everyone through this-apology accepted. Let's get her some
help. That's what she wanted. That's what Leo wanted. Wanted her to get
some help.
Report of Proceedings (RP) at 96. In rebuttal, the prosecutor stated:
Ladies and gentlemen, I'll try to be brief.
Dr. Wilson didn't testify that she didn't have the intent to punch
Officer Winegardner. And he didn't testify that she didn't have the intent
to kick Officer Winegardner. He testified why she might hit or kick Officer
Winegardner.
This case isn't about whether or not someone said they were sorry.
This case is about accepting consequences for your actions. And on
February 28, 2016, Ms. Ravenwood [sic] got mad, and she got violent. She
had violent actions. She needs to face the consequences for those.
RP at 100.
The defense did not object to the argument. The jury rejected the diminished
capacity defense and convicted Ms. Ravenheart as charged. She then timely appealed to
this court. A panel considered the matter without argument.
ANALYSIS
The sole issue presented by this appeal is a contention that the prosecutor's
statement that defendant "needs to face the consequences" constituted misconduct
2
No. 34739-7-111
State v. Ravenheart
requiring a new trial. She specifically argues that the statement was an appeal to
prejudice. We believe it was an appropriate response to the defense argument.
The standards governing this challenge are well settled. Prosecutors can properly
draw reasonable inferences from the evidence admitted at trial and argue those inferences
to the jury. State v. Hoffman, 116 Wn.2d 51,94-95,804 P.2d 577 (1991); State v. Hale,
26 Wn. App. 211,216,611 P.2d 1370 (1980). The prosecutor also can respond to the
defense presentation and argue that the evidence does not support the defendant's theory
of the case. State v. Russell, 125 Wn.2d 24,87,882 P.2d 747 (1994). "Mere appeals to
jury passion and prejudic_e,as well as prejudicial allusions to matters outside the
evidence,are inappropriate." State v. Belgarde, 110 Wn.2d 504,507,755 P.2d 174(1988). However,the defendant must object to the prosecutor's allegedly improper
argument to preserve a claim of error unless the argument was so "flagrant and ill
intentioned that no curative instructions could have obviated the prejudice." Id. When
improper argument is alleged,the defense bears the burden of establishing the
impropriety of the prosecuting attorney's comments as well as their prejudicial effect.
Hoffman, 116 Wn.2d at 93.
The challenged statement here was a clear response to the defense argument.
Instead of concluding that Ms. Ravenheart's apology was sufficient to resolve the case,
the prosecutor focused the jury on the inadequacy of the diminished capacity evidence
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No. 34739-7-III
State v. Ravenheart
and that this was not a case of a defendant being unable to control her behavior. Like
anyone else, she was accountable and should be found guilty.
While there are certainly circumstances where asking a jury to hold someone
accountable might be an improper appeal to emotion, this was not such an instance. The
remark was not improper in context. Moreover, even if the statement could have been
construed as an appeal to emotion, it was not such an egregious error as to be beyond
correction. Thus, the failure to challenge the remark also amounted to a waiver of the
argument. 1
For both reasons, the contention is without merit. The convictions are affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Lawrence-Berrey, A.c:. Pennell, J.
1
Ms. Ravenheart has asked that we waive appellate costs. In the event that the
State seeks costs, our commissioner will consider the request in accordance with RAP
14.2.
4