In Re Detention Of: H.n. ( 2015 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re the Detention of: No. 72003-1-1
H.N., DIVISION ONE
Appellant.
PUBLISHED
FILED: July 6, 2015
Cox, J. — H.N. appeals the order committing her to involuntary treatment.
The trial court did not abuse its discretion when it admitted as substantive
evidence e-mailed screenshots of text messages that a medical expert used as
part of her opinion testimony. The evidence was sufficient to support the trial
court's finding of fact that H.N. posed a likelihood of serious harm to herself. The
allegedly improper closing argument of the prosecutor did not violate H.N.'s right
to due process. We affirm.
The material facts are largely undisputed. H.N. is a college student who
was less than 21 years of age at the time of the events leading to this case. She
worked at part time jobs, and she had two roommates who worked with her at
one of her jobs.
After midnight on a night in May 2014, H.N.'s two roommates returned
home to discover her unconscious on the floor and lying in a pool of her own
No. 72003-1-1/2
vomit. Nearby there was an empty bottle of wine, an empty bottle of Nyquil, and
a partially empty bottle of vodka. H.N. briefly awoke but then passed out again.
One roommate called 911, and medics responded to the scene.
Designated mental health professionals involuntarily detained H.N. for
treatment on May 3, 2014. Thereafter, the State petitioned for up to 14 days of
additional inpatient treatment, pursuant to the involuntary treatment act, RCW
71.05.
On May 7, 2014, the court conducted a hearing on the petition. At the
hearing, the State presented the testimony of H.N.'s two roommates, H.N.'s best
friend, ST., and a psychologist who evaluated H.N. at the hospital.
The psychologist testified as an expert. Part of her testimony was based
on what purported to be e-mailed screenshots of text messages between H.N.
and her boyfriend, "A." These messages were exchanged on the night her
roommates found her unconscious on the floor, lying in a pool of her vomit. The
psychologist read several of these text messages into the record. Over H.N.'s
objection on the basis of lack of foundation, the court admitted this evidence.
H.N. testified on her own behalf but presented no other evidence. She
presented no evidence to challenge the authenticity of the e-mailed screenshots
of the text messages.
In closing argument, the prosecutor argued, "[W]hen we kind of peel back
the layers and we point out all of the people who are perceived to care greatly
about [H.N.], versus who appeared besides [H.N.] herself to advocate for her
No. 72003-1-1/3
release, I think that the evidence certainly weighs in favor of keeping her in the
hospital."1 Defense counsel did not object.
After the hearing, the trial court found that H.N. suffered from a mental
disorder and presented a likelihood of serious harm to herself. The court entered
an order committing H.N. for involuntary treatment for a period of 14 days. The
court later entered supplemental findings of fact and conclusions of law.
H.N. appeals.
MOOTNESS
A threshold question is whether this case is now moot because the 14-day
period of involuntary treatment has passed and this court can no longer give
effective relief. The issues before us are of continuing and substantial public
interest. Moreover, the involuntary commitment order may have future collateral
consequences for H.N. Accordingly, we reach the issues despite this case being
technically moot.
"A case is moot if a court can no longer provide effective relief."2 As a
general rule, an appellate court will not review a moot case.3 But this court may
review a moot case if it presents issues of continuing and substantial public
interest.4 In deciding whether a case presents issues of continuing and
substantial public interest three factors are determinative: "'(1) whether the issue
1 Report of Proceedings (May 7, 2014) at 101.
2 Orwick v. City of Seattle. 103 Wn.2d 249, 253, 692 P.2d 793 (1984).
3ld,
4 Westerman v. Cary. 125 Wn.2d 277, 286, 892 P.2d 1067 (1994).
No. 72003-1-1/4
is of a public or private nature; (2) whether an authoritative determination is
desirable to provide future guidance to public officers; and (3) whether the issue
is likely to recur.'"5 A fourth factor that "may also play a role" is "'the level of
genuine adverseness and the quality of advocacy of the issues.'"6 Finally, the
court may consider "'the likelihood that the issue will escape review because the
facts of the controversy are short-lived.'"7
"[A]n involuntary commitment order has collateral consequences for future
commitment determinations."8
Here, there is an important evidentiary issue of first impression in this
state—whether the court abused its discretion in admitting e-mailed screenshots
of text messages. These text messages served as a primary basis for expert
testimony regarding involuntary treatment of an individual. This is an issue of a
public nature, an authoritative determination is necessary for the guidance of trial
courts, and the issue is likely to recur. And the issue is likely to evade future
review due to the 14-day limit of involuntary treatment under the circumstances
of cases like this.
5id (quoting Hart v. Dep't of Soc. & Health Servs., 111 Wn.2d 445, 448, 759
P.2d 1206(1988).
6 id (quoting Hart, 111 Wn.2d at 448).
7 Id at 286-87 (quoting Citv of Seattle v. State. 100 Wn.2d 232, 250, 668 P.2d
1266(1983)).
8 InreDet. ofM.K.. 168 Wn. App. 621, 622, 279 P.3d 897 (2012).
No. 72003-1-1/5
Moreover, the issue of commitment will likely have collateral
consequences for H.N. should there be future questions regarding her mental
health.
For these reasons, we reach the issues presented by this technically moot
case.
EVIDENTIARY RULING
H.N. argues that the trial court abused its discretion when it admitted as
substantive evidence e-mailed screenshots of text messages that the State's
expert witness used during her testimony. Because this evidence was properly
authenticated pursuant to ER 901(b), we disagree.
"Authentication is a threshold requirement designed to assure that
evidence is what it purports to be."9 Under ER 901(a), "The requirement of
authentication or identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the matter in question is
what its proponent claims."
Because the proponent must make only a prima facie showing of
authenticity for purposes of establishing admissibility, ER 901 is met "if the
proponent shows enough proof for a reasonable fact finder to find in favor of
authenticity."10 "'[T]he proponent of offered evidence need not rule out all
9 State v. Payne. 117 Wn. App. 99, 106, 69 P.3d 889 (2003).
10 Id. at 108 (citing State v. Danielson. 37 Wn. App. 469, 471, 681 P.2d 260(1984)).
No. 72003-1-1/6
possibilities inconsistent with authenticity or conclusively prove that evidence is
what it purports to be .. . .'"11
"Because under ER 104 authenticity is a preliminary determination, the
court may consider evidence that might otherwise be objectionable under other
rules."12 "Atrial court may, therefore, rely upon such information as lay opinions,
hearsay, or the proffered evidence itself in making its determination."13 "Such
information must be reliable, but need not be admissible."14
"In making this preliminary determination, the court considers only the
evidence offered by the proponent and disregards any contrary evidence offered
by the opponent."15 "Once a prima facie showing has been made, the evidence
is admissible under ER 901 ."16 The opponent is then free to object on the basis
of any other rules that may bar the evidence or offer contradictory evidence
challenging authenticity.17 If such contradictory evidence is offered, the
authenticity of the proponent's evidence is ultimately judged by the trier offact.18
11 State v. Andrews. 172 Wn. App. 703, 708, 293 P.3d 1203 (quoting State v.
Thompson. 777 N.W.2d 617, 624 (N.D. 2010)), review denied. 177 Wn.2d 1014 (2013).
12 Rice v. Offshore Svs.. Inc.. 167 Wn. App. 77, 86, 272 P.3d 865 (2012).
13 State v. Williams. 136 Wn. App. 486, 500, 150 P.3d 111 (2007).
14 id
15 Rice, 167 Wn. App. at 86.
16 id
17 id
18 5C Karl B. Tegland, Washington Practice: Evidence Law and Practice §
901.4, 288-89 (5th ed. 2007).
No. 72003-1-1/7
ER 901(b) provides examples of authentication conforming with the
requirements of the rule. These examples are "[b]y way of illustration only, and
not by way of limitation."19 They include the following:
(4) Distinctive Characteristics and the Like. Appearance,
contents, substance, internal patterns, or other distinctive
characteristics, taken in conjunction with circumstances.
(10) Electronic Mail (E-mail). Testimony by a person with
knowledge that (i) the email purports to be authored or created by
the particular sender or the sender's agent; (ii) the email purports to
be sent from an email address associated with the particular sender
or the sender's agent; and (iii) the appearance, contents,
substance, internal patterns, or other distinctive characteristics of
the email, taken in conjunction with the circumstances, are
sufficient to support a finding that the email in question is what the
proponent claims.'201
The current version of ER 901(b) does not specifically address text
messages. Nevertheless, these illustrative examples provide proper bases for
the trial court's determination in this case.
A trial court's admission of evidence is reviewed for abuse of discretion.21
An abuse of discretion occurs when a trial court's decision is manifestly
unreasonable or based on untenable grounds or reasons.22
19 ER 901(b).
20 id at (4), (10).
21 State v. Maqers. 164 Wn.2d 174, 181, 189 P.3d 126 (2008).
22 Id.No. 72003-1-1/8
This court recently considered authentication of text messages in State v.
Bradford.23 There, Jonathan Bradford was convicted of several offenses,
including felony stalking of his ex-girlfriend.24 Among the evidence admitted at
trial were text messages that Bradford had sent to his ex-girlfriend and her
friend.25 The text messages sent to the ex-girlfriend were introduced through the
testimony of a police officer who read to the jury quotations from the text
messages from police reports.26 Other text messages, sent to the friend, were
admitted through a 12-page condensed version of a much longer report itemizing
each text message that was retrieved from a "phone dump" report of the friend's
cellular telephone.27 Bradford appealed, claiming that the trial court erroneously
admitted the evidence of the text messages. He claimed that the State failed to
show that he sent the messages, relying on ER 901(a).28
This court rejected Bradford's arguments. It concluded that there was
sufficient evidence to support a finding that Bradford wrote and sent the text
messages that were read to the jury and contained in the report.29
23175 Wn. App. 912, 308 P.3d 736 (2013), review denied. 179 Wn.2d 1010(2014).
24 id at 915.
25 id at 928.
26 id at 918 n. 1,928.
27 id at 919.
28 id at 927.
29 Id. at 928-29.
8
No. 72003-1-1/9
First, the court noted that Bradford's actions showed his "desperate
desire" to communicate with his ex-girlfriend.30 And it stated that "[i]t was
consistent with this obsessive behavior that [Bradford] would also send text
messages to [the friend] as part of his efforts to contact [his ex-girlfriend]."31
Second, the court stated that "the content of the text messages
themselves indicated that Bradford was the individual who sent them."32 For
example, the text messages repeatedly mentioned his ex-girlfriend's name.
Further, the threats contained in the text messages "were consistent with
Bradford's previous threats made in 2010."33 Additionally, other texts referenced
the name of the restaurant in which Bradford had seen his ex-girlfriend.34
Third, the court noted that two of the text messages threatened to cause
an explosion.35 And shortly after these messages were sent, the ex-girlfriend
received a suspicious package from Bradford.36
Fourth, the court stated, "Also pertinent was the fact that, between
January 22 and May 23, 2011, Bradford was in jail and, therefore, unable to send
text messages or e-mails. During this same time period, [the friend] did not
30 id at 929.
31 id
32 id
33 id
34 \d. at 930.
35 Id at 929.
36 Id.
No. 72003-1-1/10
receive any offensive text messages."37 Once Bradford was released from jail,
the friend began to receive offensive text messages again.38
Finally, the court noted that the ex-girlfriend and her friend testified to their
belief that the text messages were from Bradford.39
As an initial matter, we note that the current version of ER 901(b) that we
quoted earlier in this opinion was not before the Bradford court. Specifically, ER
901(b)(10) now specifically refers to e-mails, whereas the earlier version did
not.40 The trial court specifically relied on the current version of this rule for its
ruling.
The evidentiary ruling arose during Dr. Cynthia Mason's testimony. She
was qualified as an expert medical witness on behalf of the State. She testified
that she considered the e-mailed screenshots of text messages as an important
basis for her opinions and that experts in her field generally rely upon such
evidence. Significantly, she also discussed these e-mailed screenshots of text
messages with H.N. when she evaluated her.
Over H.N.'s objection, based on lack of foundation, the trial court admitted
the e-mailed screenshots of the text messages that Dr. Mason read into the
record.
37 id at 929-30.
38 ]d at 930.
39 Id.
40 See former ER 901 (b)(10) (1979) ("Methods Provided by Statute or Rule. Any
method of authentication or identification provided by statute or court rule.").
10
No. 72003-1-1/11
Dr. Mason believed the text messages were sent to H.N.'s boyfriend who
lived out of state. She testified that the first message was sent at 11:00 p.m. and
was initiated by H.N. It stated, "I'm about to do something really stupid."41 H.N.
then wrote, "I need you. I need someone."42 The next message stated, "I've got
two bottles of wine and a bottle of 80 proof vodka. It's going down my throat with
some prescription meds."43 When asked what happened, H.N. responded, "I'm
sh*t. That's what happened."44
Dr. Mason continued to summarize the conversation:
And he presses and—and—asking her. And he's asking her what
was the problem. At 11:08 p.m. she writes, quote, I'm almost done
with one bottle, end quote. And he's asking her to talk to her and
she responded—or he responded at 11:08 p.m., quote, you're not
going to kill yourself for someone who isn't worth it, end quote.
At 11:09 p.m. she wrote back, quote, I'm not killing myself for
that reason, end quote. And then she texts again, quote, I'm killing
myself because I'm tired, end quote. And she's going on about a
relationship that it appears has—has failed. And he's pleading with
her to keep the bottles and the medicine away and just talk to him.
And she responds at 11:11 p.m., quote, I miss [H.N.'s ex-
boyfriend], end quote. And he's telling her to relax and talk to her
and—and stop drinking. He's pleading with her. And at 11:15 p.m.
she writes, quote, don't tell [S.j. And Ibelieve that that's [ST.] who
is present in court today, about what's happening. And then he
responded back by saying, at 11:16, I already told her... .
At 11:16 she responded, quote, I know, she called me, end
quote. And then he's pleading with her to relax and not kill herself.
At 11:17 she responds, quote, one bottle is gone, [A.]. I don't know
41 Report of Proceedings (May 7, 2014) at 53.
42 Id
43 id
44 id
11
No. 72003-1-1/12
what to do, end quote. And he's trying to reassure her that
everything will be all right.
At 11:19 she writes, quote, I can't. He responds at 11:19,1
won't let you die. I'll take care of you. I love you, remember? At
11:20 she responds, I can't. At 11:20 she responds, quote, in a
minute I won't be able to text, end quote. And he's pleading with
her and saying why, why, why? At 11:21 she's responding, I'm
dizzy, end quote. At 11:22 she's responding, I need you, end
quote.
At 11:23 she responds, quote, please don't tell [S.]. There is
nothing she can do, end quote. He's saying I won't be able to live
with myself if something happens to you. And then he informs her
that somebody is coming over for her to take care of her. And she
responds at 11:27, who? And then she—he's saying that a friend is
going to come see her. At 11:29 she types, I can't see any more,
I'm sorry. And he's responding that this person that he's sending
over is her friend. And she pleads with him at 11:33, no, tell him
not to come. I don't want him.
At 11:36 she types, I want to see my mom, who's deceased.
And at 11:36 she types I want to see [her ex-boyfriend], who's
again deceased. He's saying that your dying doesn't mean that
you'll see him. At 11:39 she types after life. Again, he's pleading
with her not to kill herself.
She types some—couple times at 11:54 and 11:56 some
faces, a bike and five hand gestures, followed by I hurt.[45]
Dr. Mason testified that there was no correspondence again until 1:12
a.m., when she wrote "I think I'm at the hospital now."46
When the prosecutor asked ifthe timeline corresponded with the timing of
this incident, Dr. Mason answered affirmatively.
The court overruled H.N.'s objection to this evidence and stated:
I am going to accept [the e-mailed screenshots of the text
messages] as substantive evidence. If you take a look at ER
45 id at 53-55.
46 Id. at 55.
12
No. 72003-1-1/13
901(b)(10), I can look to the appearance, the content, the
substance, the internal patterns or other general distinctive
characteristics in order to authenticate these documents.
And given the date and time, her name, her phone number,
and the content of these text messages, that provides this Court
with circumstantial evidence that these in fact were statements
made by [H.N.], and I will accept them as such.[47]
This ruling was a proper exercise of discretion.
First, it is significant that Dr. Mason confronted H.N. with the e-mailed
screenshots of the text messages during the evaluation that preceded the court
hearing. H.N. acknowledged sending the text messages but claimed she did not
recall to whom. Nevertheless, this interaction between the two evidences that
the e-mailed screenshots of text messages admitted as substantive evidence
were what they purported to be—statements by H.N. during the incident that
gave rise to her involuntary commitment for treatment.
Second, the identifying information at the top of the text messages
indicates that H.N. was the sender. Dr. Mason testified that the text messages
listed the sender's phone number. She further testified that that the sender's
phone number matched the contact information in H.N.'s medical chart. She also
testified that H.N.'s full name was identified and displayed as the sender of the
text messages.
Third, the content of the text messages themselves also suggests that
H.N. was the sender. The messages consistently reference names of people in
H.N.'s life.
47 ]d at 58-59.
13
No. 72003-1-1/14
Fourth, the text messages are consistent with certain events that
happened in H.N.'s life. For example, one text messages states, "I want to see
my mom" and another states "I want to see [H.N.'s ex-boyfriend]."48 Both H.N.'s
mom and her ex-boyfriend are deceased. Additionally, another message states,
"I've got two bottles of wine and a bottle of 80 proof vodka. It's going down my
throat with some prescription meds."49 This is consistent with the fact that wine
and vodka bottles were found near H.N.'s unconscious body.
Finally, the timing of the text messages is consistent with H.N.'s
hospitalization on the night of the incident. The date of the screenshots indicate
that they were taken on May 4, 2014. H.N. was detained on May 3, 2014.
Further, the text messages themselves are time-stamped. The text message
conversation starts at around 11:00 p.m. and stops at around 12:00 a.m.
According to their testimony, H.N.'s roommates found H.N. unconscious around
12:00 a.m. to 12:30 a.m. They called 911 and paramedics took H.N. to the
hospital. The text messages resume at 1:12 a.m. with one that states, "I think I'm
at the hospital now."50
In sum, the requirements of ER 901(b)(10) are satisfied by analogy. The
record establishes that the e-mailed screenshots of text messages were
authored by H.N. Likewise, they were sent from the cell number associated with
H.N. Finally, the distinctive characteristics of the messages, taken in conjunction
48 id at 55; Supplemental Documents Requested by the Court.
49 Id at 53.
50 id at 55.
14
No. 72003-1-1/15
with the circumstances are sufficient to support authentication. For these
reasons, we conclude that the trial court correctly decided that the State's prima
facie showing was sufficient to admit this evidence.
H.N. attempts to distinguish this case from Bradford in several ways.
None of her arguments are persuasive.
First, H.N. points out that, in contrast to Bradford, the document in this
case was not produced as part of a report generated by the recipient's cell
service provider. This is true. But that is immaterial.
The evidence in this case shows that H.N. acknowledged sending these
text messages. Moreover, for the reasons the trial court stated in its ruling, there
was sufficient evidence to authenticate them.
In any event, the fact that the text messages in Bradford were produced
as part of a report was not material to the court's analysis. Rather, the court
relied on the circumstantial evidence we discussed earlier in this opinion to
conclude that the text messages were properly authenticated.
Second, H.N. argues that "while in Bradford the sender was unverified,
here both the sender and the recipient remain unverified."51 But this overlooks
that the sender, H.N. was verified. She acknowledged sending the text
messages. Further, Dr. Mason testified that the phone number in the e-mailed
screenshots of the text messages was the same as that in H.N.'s medical
records. This, as well as the other evidence we discussed previously, was
51 Brief of Appellant at 11.
15
No. 72003-1-1/16
sufficient to verify that H.N. was the sender. The fact that the recipient was not
also verified does not appear to be a requirement to authenticate this evidence.
In any event, the information concerning the identity of the recipient was
not material to the reasoning in Bradford. While knowledge of the recipient might
be helpful to establishing authentication, H.N. fails to point to any authority
indicating that such evidence is required.
H.N.'s arguments about State v. Danielson fail for the same reason.52 In
that case, an officer testified that he had received a telephone call and spoken
with an individual who identified himself as the defendant.53 H.N. contrasts
Danielson and asserts that in this case, "No individual testified that he had
received the text messages, or even the emailed screen shots of the text
messages. Without this testimony, the messages could not be properly
authenticated."54 But again, H.N. fails to provide any authority to support this
assertion. Thus, we reject it.
H.N. argues that without testimony from a witness who could testify that
he had received the messages, "[Tjhere was [no] way to verify how the emailed
documents had been actually created or whether they had been altered."55
It is unclear whether this argument is directed to the screenshots of the
text messages or to the e-mail that transmitted them. As we have consistently
52 Appellant's Reply Brief at 1-2 (citing State v. Danielson. 37 Wn. App. 469, 681
P.2d 260 (1984)).
53 Danielson. 37 Wn. App. at 472.
54 Appellant's Reply Brief at 2.
55 Id. at 3.
16
No. 72003-1-1/17
stated in this opinion, the document from which Dr. Mason quoted at the hearing
was composed of e-mailed screenshots of text messages.
If this argument is directed to the screenshots of the text messages
contained in the e-mail, we have already considered and rejected the challenges
in our prior discussion in this opinion. If, however, this argument is directed to
the e-mails themselves, we conclude that H.N. did not preserve this argument.
H.N. did not argue in the trial court that the e-mails themselves, as distinct from
the screenshots of text messages within the e-mail, were not authenticated.
Rather, the focus below was limited to the text messages, and the trial court's
ruling was similarly focused. Likewise, on appeal, the briefing does not develop
this alternative. Accordingly, we do not further address it.
Finally, H.N. argues that "there was no evidence presented about when
the text messages had been obtained."56 But the screenshots are dated May 4,
2014. H.N. also asserts, "The fact that the messages appeared to be time
stamped was not sufficient for authentication because the recipient of the
messages did not testify and the evidence did not come directly from the cell
phone."57 But she fails to provide any authority to support this assertion.
Further, the time stamps provide circumstantial evidence of authentication.
Thus, this is not persuasive.
56 Brief of Appellant at 12.
57 Id.
17
No. 72003-1-1/18
SUFFICIENCY OF THE EVIDENCE
H.N. next argues that the State presented insufficient evidence to support
the trial court's finding that she presented a likelihood of serious harm to herself.
We disagree.
To commit a person for involuntary treatment, the State must show by a
preponderance of the evidence that the person, as a result of a mental disorder,
presents a likelihood of serious harm, or is gravely disabled.58 "Likelihood of
serious harm" to oneself means a "substantial risk that. . . [p]hysical harm will be
inflicted by a person upon his or her own person, as evidenced by threats or
attempts to commit suicide or inflict physical harm on oneself."59
"[W]here the trial court has weighed the evidence, appellate review is
limited to determining whether substantial evidence supports the findings and, if
so, whether the findings in turn support the trial court's conclusions of law and
judgment."60 Substantial evidence is the quantum of evidence sufficient to
persuade a fair-minded person of the truth of the declared premise.61
Here, sufficient evidence supports the finding that H.N. presented a
likelihood of serious harm to herself. Supplemental finding of fact 7 sets forth the
evidence that the court relied on in making this determination:
58 RCW 71.05.240(3).
59RCW71.05.020(25)(a)(i).
60 In re Pet, of LaBelle. 107 Wn.2d 196, 209, 728 P.2d 138 (1986).
61 InreDet.ofA.S.. 91 Wn. App. 146, 162, 955 P.2d 836 (1998), affd, 138
Wn.2d 898, 982 P.2d 1156 (1999).
18
No. 72003-1-1/19
The Court finds that as a result of [H.N.'s] mental disorder,
she presents a substantial risk of harm to herself, as defined under
RCW 71.05.020(25)(a)(i). This is based upon the testimony of the
Petitioner's witnesses, who testified as to how they came home to
discover [H.N.] passed out in her own vomit near the doorway of
their shared apartment. They were concerned that she was dead
and immediately called for help after being unable to successfully
rouse her. Near [H.N.'s] unconscious body, they found an empty
bottle of wine, an almost empty bottle of vodka, and an empty bottle
of Nyquil, which the roommates testified nobody other than [H.N.]
could have consumed. Those bottles all had been mostly full
earlier that day. In finding that the Petitioner's witnesses' version of
the events is more credible than [H.N.'s] version, the Court notes
that the text messages between [H.N.] and "[A.]" are extremely
important to the analysis and undermine [H.N.'s] version of the
events. The Court notes [that H.N.] is high functioning. However,
before she had consumed all of the alcohol and become inebriated,
she was already texting "[A.]" indicating that she had alcohol and
medication in her possession that she was going to begin
consuming for the purpose of killing herself. The Court finds this is
not the action of someone who is too drunk to know what they are
doing, which is contrary to [H.N.'s] testimony that she was too
drunk to remember what she was texting. The Court finds the
specificity of [H.N.'s] text message comments demonstrates that
[H.N.] was very aware of what she was saying and what she
intended to do. The Court finds that in light of all the evidence, this
was a verifiable and true suicide attempt, which had been planned
out and implemented. The timing of the events also weighs in the
Petitioner's favor. The testimony well establishes that May is a
tough time of year for [H.N.] and that leading up to the suicide
attempt, the roommates . . . had noticed an increased avoidance,
withdrawal, increased sleep patterns, [H.N.] skipping classes, and
not wanting to be with friends.'621
Substantial evidence in the record supports this finding of fact.
Specifically, it is supported by the testimony of H.N.'s two roommates and Dr.
Mason who testified to the content of the text messages. The trial court
expressly found the testimony of these witnesses credible and H.N.'s testimony
not credible. This court does not review credibility determinations.
62 Clerk's Papers at 31.
19
No. 72003-1-1/20
The e-mailed screenshots of text messages and the court's credibility
determinations support its finding that this was a "verifiable and true suicide
attempt." Several of the text messages clearly indicate that H.N. was attempting
suicide. And this recent suicide attempt is evidence that there is a substantial
risk that H.N. will inflict physical harm upon her own person. In sum, substantial
evidence supports the finding that H.N. presents a likelihood of serious harm to
herself.
Moreover, even if the e-mailed screenshots of text messages, revealing
her recent suicide attempt, were improperly considered as substantive evidence,
the testimony of H.N.'s roommates and H.N.'s best friend also supports the
challenged finding.
Their testimony shows that H.N. recently inflicted physical harm on herself
at times other than the suicide attempt. One of H.N.'s roommates testified that
H.N. had recently cut herself and admitted hurting herself on purpose. H.N.'s
best friend testified that she had recently seen injuries on H.N., including cuts on
H.N.'s ankles and a burn on her wrist.
Their testimony also shows that H.N. continued to present a risk of harm
to herself. One roommate testified that she was worried about H.N. hurting
herself if she were to go back to the apartment in her current condition. H.N.'s
second roommate also testified that she did not think she could keep H.N. safe in
her current condition. H.N.'s best friend expressed similar concerns.
In short, the evidence is sufficient to support the challenged finding.
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No. 72003-1-1/21
H.N. argues that "[w]hile the statute allows for the consideration of past
suicide attempts, it requires that the State show physical harm will be inflicted,
not simply that [H.N.] has inflicted harm upon herself in the past."63 But the
statute only requires that the State show a "substantial risk" that physical harm
will be inflicted. Further, the statute expressly states that "likelihood of serious
harm" means a substantial risk that "[p]hysical harm will be inflicted by a person
upon his or her own person, as evidenced by threats or attempts to commit
suicide or inflict physical harm on oneself."6* Thus, evidence of a past
suicide attempt is evidence of a substantial risk that physical harm will be
inflicted. Accordingly, this argument is not persuasive.
DUE PROCESS
Finally, H.N. argues that the prosecutor improperly commented on her
failure to present evidence and that this violated her right to due process. We
conclude that any error does not warrant reversal.
Prosecutorial misconduct is grounds for reversal if the prosecutor's
conduct was both improper and prejudicial.65 A reviewing court determines the
effect of a prosecutor's improper conduct by examining that conduct in the full
trial context, including the evidence presented, the context of the total argument,
the issues in the case, and the evidence addressed in the argument.66
63 Brief of Appellant at 19-20.
64 RCW 71.05.020(25)(a)(i) (emphasis added).
65 State v. Monday. 171 Wn.2d 667, 675, 257 P.3d 551 (2011).
66 id
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No. 72003-1-1/22
In the absence of evidence to the contrary, we presume the judge in a
bench trial does not consider improper matters or inadmissible evidence in
rendering a verdict.67
Here, H.N. argues that the prosecutor committed misconduct when he
made the following statement during closing argument:
We've heard a lot of testimony. Again, I—I'll concede on the one
hand that [H.N.] presents very well today. I think that was
expected. And I think that if we had only that context in mind,
certainly we probably wouldn't have grounds.
But when we kind of peel back the layers and we point
out all of the people who are perceived to care greatly about
[H.N.], versus who appeared besides [H.N.] herself to advocate
for her release, I think that the evidence certainly weighs in
favor of keeping her in the hospital.16®
There was no objection.
H.N. also points to the prosecutor's cross-examination of H.N., during
which he asked her if her psychiatric provider, therapist, friend, and boyfriend
were in court advocating for her release, to which H.N. responded that they were
not. Again, there was no objection.
We need not decide whether these actions were improper. The fact that
H.N. did not object at trial "'strongly suggests' that the remark[s] did not appear
critically prejudicial in the trial's context."69 Further, an appellate court presumes
that the trial court disregarded inadmissible matters and followed the law.
67 State v. Gower, 179 Wn.2d 851, 855, 321 P.3d 1178 (2014).
68 Report of Proceedings (May 7, 2014) at 101 (emphasis added).
69 Monday. 171 Wn.2d at 679 (quoting State v. Swan, 114 Wn.2d 613, 661, 790
P.2d 610 (1990)).
22
No. 72003-1-1/23
H.N. points out that the trial court remarked that "[tjhere is something in
[H.N.'s] testimony that just does not add up."70 And she asserts, "Given that the
judge noted H.N.'s testimony was lacking something, the deputy prosecutor's
insistence that H.N.'s failure to present additional witnesses should be held
against her was prejudicial to H.N."71 This is not persuasive.
The judge's statement does not either establish prejudice or show that the
judge relied on the allegedly improper argument. Rather, it merely demonstrates
that the judge did not find H.N. credible.
In short, reversal is not required.
We affirm the order of commitment.
CfjA,^-
WE CONCUR:
Q^fr^c^.^ err
70 Report of Proceedings (May 7, 2014) at 109.
71 Brief of Appellant at 16.
23