126 Wn. App. 285, Ballard Square Condo. Owners Ass'n v. Dynasty Constr. Co.

[Nos. 53856-0-I; 54250-8-I. Division One. March 14, 2005.]

BALLARD SQUARE CONDOMINIUM OWNERS ASSOCIATION , Appellant , v. DYNASTY CONSTRUCTION COMPANY , et AL ., Respondents .

[1] Statutes - Construction - Legislative Intent - Statutory Language - In General. A court determines a statute's legislative intent and purpose as expressed in the statute by looking to the statutory scheme as a whole. Statutory language is ambiguous if it is capable of more than one reasonable interpretation. If the statutory language is plain and unambiguous, the statute's meaning is determined from the statutory language alone. If the statutory language is ambiguous or unclear, the court may look to legislative history to discern legislative intent.

[2] Statutes - Construction - Meaningful Interpretation. A statute will not be construed in a manner that renders any portion thereof meaningless.

[3] Corporations - Dissolution - Action Against Corporation - Postdissolution Claim - Statutory Provisions. RCW 23B.14.340 provides for the survival of a right of action against a dissolved corporation only if the claim existed before the corporation was dissolved. RCW 23B.14.340 does not apply to claims that arise after dissolution.

[4] Statutes - Construction - Common Law - Conformity With Common Law - Presumption. Absent an indication that the legislature intended to overrule the common law, new legislation is presumed to be consistent with prior judicial decisions.[5] Corporations - Dissolution - Action Against Corporation - Postdissolution Claim - Common Law. Claims against a corpo

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ration that arise after the corporation has been dissolved are governed by the common law. Under the common law, however, all claims against a corporation terminate upon its dissolution.

Nature of Action: A condominium homeowners association sought damages from the condominium developer, a dissolved corporation, for breach of contract for construction defects caused by water damage to the building's exterior walls.

Superior Court: The Superior Court for King County, No. 02-2-29025-6, Anthony P. Wartnik, J., on January 23, 2004, dismissed the action by summary judgment, ruling that the contract claim is barred by an applicable statutory time limitation and by the Business Corporation Act.

Court of Appeals: Holding that the Business Corporation Act does not expressly permit postdissolution claims against dissolved corporations except during the period in which they are winding up their affairs and that the common law prohibits such claims, the court affirms the judgment.

Todd C. Hayes (of Foster Pepper & Shefelman, P.L.L.C. ); and Todd K. Skoglund and Christopher R. Casey , for appellant.

Eileen I. McKillop and Heather Dawn Shand Perkins (of Oles Morrison Rinker & Baker, L.L.P. ), for respondents.

¶1 AGID , J. - A condominium homeowners association appeals a trial court's order dismissing its case on summary judgment. The association sued the condominium's developer, a dissolved corporation, for breach of contract after construction defects caused water damage to the building's

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exterior walls. The association argues the trial court erred in concluding that their contract claim was barred by both the statute of limitations and the Business Corporation Act, Title 23B RCW. Because the Business Corporation Act does not expressly permit post-dissolution claims against dissolved corporations except during the period in which they are winding up their affairs, and the common law prohibited them, the common law rule still applies and all claims against Dynasty had terminated before the association filed suit. We affirm.

FACTS

¶2 Ballard Square is a 20-unit condominium building located in Seattle. Dynasty Construction Company (Dynasty) was Ballard Square's developer and general contractor. Dynasty sold its first Ballard Square unit in May 1992 and completed construction of the building by the end of 1992. The company was administratively dissolved in October 1995. Soon after construction was completed, homeowners noticed water penetration in the subterranean basement and roof and some window condensation. Sometime later, they noticed water penetration in the above-ground exterior walls.

¶3 In early 1997, the homeowners filed an insurance claim to cover the cost of repair. The insurance company found water leaking through the exterior stucco finish, but the company paid to repair only those areas that were in an imminent state of collapse. Also in early 1997, engineering investigators visited the condominium building and made exploratory openings in the exterior walls. They reported that portions of the exterior walls in some units were severely decayed, and in some areas the interior gypsum sheathing board and plywood sheathing were wet or damp from water leaking through the stucco siding. Sometime later, an architect looked at the damage and stated that the building "is experiencing severe decay and it is in a state of imminent collapse in certain areas . . . ." In the architect's

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opinion, Dynasty's failure to build the structure in compliance with existing law and/or sound construction standards caused the damage. The estimated cost of repair was over $1.4 million.

¶4 In October 2002, the Ballard Square Homeowners Association (Association) sued Dynasty for breach of contract, alleging that Dynasty breached the portion of the Purchase and Sale Agreement Addendum that states that "[t]he Unit and entire project shall be completed substantially in accordance with the plans and specifications prepared, and from time to time amended, by Seller."1 In April 2004, the trial court dismissed the Association's case on summary judgment.

DISCUSSION

¶5 On appeal of a trial court's decision to grant summary judgment, we review questions of law de novo.2 We consider all facts and reasonable inferences in the light most favorable to the nonmoving party.3 Absent a genuine issue of any material fact, the moving party is entitled to summary judgment as a matter of law.4 Summary judgment is proper "only if reasonable persons could reach only one conclusion from all of the evidence."5

¶6 Dynasty argues that the Association's claim is barred because Dynasty was administratively dissolved in October 1995, seven years before the Association filed its case. At

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common law, a corporation ceased to exist upon dissolution, and all claims against that corporation were terminated by operation of law.«6»Responding to the inequitable results this rule caused, state legislatures enacted two kinds of statutes. The two are not exclusive, but rather typically exist together in the same statutory scheme. The first continues a corporation's existence during its winding up activities, allowing the corporation to sue and be sued while winding up.«7»Most states have enacted this kind of statute.«8»The second enables a dissolved corporation to sue and be sued independent of its winding up activities.«9»These statutes are known as "survival" statutes, and they typically preserve a remedy against a corporation for a finite period after the dissolution date.«10»All states have adopted a survival statute.«11»

¶7 Washington's Business Corporation Act contains both types of statutes. RCW 23B.14.050 states that "[a] dissolved corporation continues its existence but may not carry on any business except that appropriate to wind up and liquidate its business and affairs . . . ."«12»The statute also provides that a corporation's dissolution does not prevent the commencement of a proceeding against the corporation

«6» Bortle v. Osborne , 155 Wash. 585 , 597, 285 P. 425 (1930).

«7»16A Fletcher Cyclopedia Corporations § 8144 (Perm. Ed. 2003) (citing § 8142). See also RCW 23B.14.050 .

«8»Fletcher Cyclopedia Corporations at § 8144 (citing § 8142).

«9» Id . (citing Leader Buick, GMC Trucks, Inc. v. Weinmann , 841 So. 2d 34 (La. App. 2003); Winston v. Stewart & Elder, P.C. , 2002 OK 68, 55 P.3d 1063). See also RCW 23B.14.340 .

«10»Fletcher Cyclopedia Corporations at § 8144. A survival statute differs from a statute of limitations in that a survival statute extends the life of a corporation for a limited time so that it may sue or be sued, while a statute of limitations affects the time in which a stale claim may be brought. Swindle v. Big River Broad. Corp. , 905 S.W.2d 565, 568 (Tenn. Ct. App. 1995) (citing M.S. v. Dinkytown Day Care Ctr., Inc. , 485 N.W.2d 587, 589 (S.D. 1992)).

«11»Fletcher Cyclopedia Corporations at § 8144.

«12»RCW 23B.14.050 (1). See also RCW 23B.14.210 (3) (an administratively dissolved corporation continues its corporate existence in order to wind up and liquidate its business and affairs).

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in its corporate name.13 Because chapter 23B.14 RCW deals exclusively with corporate dissolutions and sections .050 and .210 deal with post-dissolution winding up and liquidation, these provisions permit lawsuits by and against a corporation so long as it is still in the process of winding up its affairs. Washington's survival statute, RCW 23B.14.340 , states that a corporation's dissolution "shall not take away or impair any remedy available against such corporation . . . for any right or claim existing, or any liability incurred, prior to such dissolution if action or other proceeding thereon is commenced within two years after the date of such dissolution."14

¶8 Citing RCW 23B.14.340 , Dynasty argues that the Association's claim is barred because Dynasty dissolved in 1995 and the Association did not file its claim within two years of the dissolution. The Association responds that the two year period applies only to claims that existed before the corporation dissolved, and because its claim accrued after Dynasty's dissolution, RCW 23B.14.340 does not bar the action. The parties therefore raise two issues involving the interpretation of RCW 23B.14.340 : (1) does the statute apply to actions that arise after dissolution; and (2) if the statute does not apply to actions arising after dissolution, what limits, if any, do parties raising post-dissolution claims face? Dynasty bears the burden of proving that the statute bars the present action.15

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I. RCW 23B.14.340 does not apply to actions arising after dissolution .

[1]¶9 In deciding whether RCW 23B.14.340 provides a two year limitation period for claims that did not exist until after the corporation dissolved, we must determine the legislature's intent and purpose as it is expressed in the act16 by looking to the statutory scheme as a whole.17 We must first decide whether its language is ambiguous; that is, whether it is capable of more than one reasonable interpretation.18 If the language is plain and unambiguous, we determine its meaning from the statute itself.19 But if it is ambiguous or unclear, we may look to legislative history to discern legislative intent.20

[2, 3]¶10 RCW 23B.14.340 is not ambiguous. It clearly applies only to claims existing before a corporation dissolves. The "claim existing . . . prior to such dissolution" language is clear.21 To hold that the statute applies to both pre-dissolution and post-dissolution claims would render the "prior to" language meaningless, something we cannot do.22

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¶11 Both the legislative history and Washington case law also support our conclusion that the survival statute only applies to pre-existing claims. Washington's previous survival statute, RCW 23A.28.250 , is almost identical to RCW 23B.14.340 and contains the same "claim existing . . . prior to such dissolution" language. The previous statute was enacted in 1965,23 and it used the same language as that found in early versions of the Model Business Corporation Act (MBCA).24 But scholars repeatedly expressed concern about the MBCA's language because it caused confusion about post-dissolution claims. In response to this concern, the 1984 Revised Model Business Corporation Act (RMBCA) added two new sections.25 Section 14.06 provides for claims known at the time of dissolution , requiring the dissolving corporation to notify all known claimants of its dissolution and give those claimants a limited period of time in which to file a claim. Section 14.07 addresses claims unknown at the time of dissolution and provides a five year period in which post-dissolution claims must be filed.26

¶12 In 1989, the Washington legislature repealed its 1965 corporations act and enacted Title 23B RCW, includ

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ing RCW 23B.14.340 .27 In its comments to Title 23B, the legislature stated that it substantially relied on the provisions, purposes, and principles of the 1984 RMBCA.28 In doing so, it adopted section 14.06, which is now codified as RCW 23B.14.060 . But the legislature declined to adopt section 14.07 which would permit claims that were discovered within 5 years of a corporate dissolution.29 It also confusingly enacted RCW 23B.14.340 , which the RMBCA intended to be supplanted by sections 14.06 and 14.07. The legislature's failure to eliminate the "prior to such dissolution" language of RCW 23B.14.340 , combined with its rejection of section 14.07, compels the conclusion that it intended that the survival statute apply only to claims existing before the corporation dissolved.

¶13 We previously reached a similar conclusion in Smith v. Sea Ventures, Inc. , where we held that RCW 23B.14.340 does not govern post-dissolution claims based on pre-dissolution contractual rights.30 In that case, the plaintiff entered into a contract with a corporation in 1990, the corporation dissolved in 1993, and the corporation's former shareholders breached the 1990 contract several years after the corporation dissolved. The plaintiff sued the shareholders, but the trial court determined that RCW 23B.14.340 barred the case. In reversing the trial court, this court noted that Washington's statute was based upon section 14.06 of the Model Business Corporations Act (Model Act).31 According to the Model Act's official comments, section 14.06 was "not intended to cover claims which are contingent or arise based on events occurring after the effective

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date of dissolution."32 That role was reserved for section 14.07. We held that the fact the legislature adopted section 14.06 but not section 14.07 suggested its intent to place a time restriction only on claims existing before the corporation's dissolution.33 Therefore, in Smith , because the plaintiff's identity and the nature of his potential claim were known before the dissolution by virtue of the 1990 contract, but any potential claim was not ripe by the time the corporation dissolved,34 the survival statute did not apply to the case.35

¶14 Based on the statute's plain language and Smith v. Sea Ventures, Inc. , we hold that RCW 23B.14.340 does not apply to post-dissolution claims and therefore it does not bar the Association's action.

II. In the absence of legislative enactment, claims arising after dissolution are governed by common law and thus are precluded .

¶15 In this case, we must answer the question not raised in Sea Ventures : that is, because the Association's claim arose after Dynasty dissolved, what, if any, time limitations apply to its post-dissolution claim.36 Dynasty argues that in the absence of RCW 23B.14.340 , the common law rule applies, and a party with a post-dissolution claim may no longer sue. In other words, it argues that because RCW

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23B.14.340 abrogated the common law rule that one cannot assert a claim against a dissolved corporation, a claim falling outside of the statute simply cannot stand. The issue of how to treat post-dissolution claims in light of survival statutes has caused a great deal of confusion.37

[4, 5]¶16 As discussed above, sections 14.06 and 14.07 of the 1984 RMBCA were enacted to remedy this confusion. And while the Washington legislature adopted section 14.06, establishing a survival period for pre-dissolution claims, it expressly declined to adopt section 14.07, which establishes a survival period for post-dissolution claims.38 "Absent an indication that the Legislature intended to overrule the common law, new legislation will be presumed to be consistent with prior judicial decisions."39 The legislature's decision not to adopt section 14.07 indicates its intent to retain the common law rule in the context of post-dissolution claims. Thus we turn to common law to resolve the issue. And, as we stated above, the common law rule is that claims against corporations terminate upon the corporation's dissolution. The Association disagrees, arguing that the statute continuing a corporation's existence during an indefinite winding up period ( RCW 23B.14.050 ) applies instead of the common law rule because it was also created to supplant the common law rule. But RCW 23B.14.050 continues a corporation's existence indefinitely for the purposes of winding up and does not address claims

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arising after a corporation has completed the winding up process. In light of the legislature's refusal to adopt section 14.07, we cannot interpret 23B.14.050 as doing what the legislature refused to do. Nor can we assume that the legislature intended that post-dissolution claims survive indefinitely, because the statute does not support the assumption.

¶17 We encourage the legislature to adopt section 14.07, as it would resolve the conundrum the present statute creates. There are competing policy considerations in play here. "An absolute bar to causes of action based upon post-dissolution claims certainly is unreasonable."40 But at the same time, "permitting post-dissolution claims to be maintained as though there were no survival statute and no bar defeats the policy goal of certainty and definiteness for former shareholders and directors of dissolved corporations. Certainty and definiteness should not be totally abandoned in favor of protecting claimants."41 Adopting section 14.07 would also make Washington's Business Corporation Act more consistent with the Revised Act and with other states that have adopted the 1984 RMBCA. But unless and until the legislature adopts this section, or something similar, we have no statutory basis on which to allow a post-dissolution claim to proceed.

¶18 Under the common law rule, all claims against a corporation terminate upon its dissolution. By statute, claims arising after dissolution survive only during the period necessary for a corporation to wind up its affairs. Because Washington's Business Corporation Act does not provide for the survival of any other post-dissolution claims, the common law rule applies. The trial court properly dismissed the Association's claim.42

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¶19 We affirm.43

KENNEDY and SCHINDLER , JJ., concur. No. 30757-0-II. Division Two. January 19, 2005.]

THE STATE OF WASHINGTON , Respondent , v. BINH THACH , Appellant .

[1] Evidence - Hearsay - Prior Inconsistent Statement - Elements. Under ER 801(d)(1)(i), a witness's prior inconsistent statement may be admitted as substantive evidence in a trial or hearing if the witness testifies at the trial or hearing and is subject to cross-examination concerning the statement, and (1) the statement is inconsistent with the witness's testimony and (2) the statement was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.

[2] Criminal Law - Evidence - Hearsay - Prior Inconsistent Statement - Reliability - Statement Given to Police - Factors. In a criminal trial, a testifying witness's prior inconsistent statement that led to the filing of the charges may be admitted as substantive evidence against the defendant under ER 801(d)(1)(i) if the statement satisfies the following elements: (1) whether the witness made the statement voluntarily, (2) whether there were minimal guaranties of truthfulness, (3) whether the statement was taken as standard procedure in one of the four legally permissible methods for determining the existence of probable cause, and (4) whether the witness was subject to cross-examination when giving the subsequent inconsistent statement. A statement has minimal guaranties of truthfulness if it is in writing and was signed before a witness subject to the penalty of perjury. The four legally permissible methods for determining the existence of probable cause are (1) a prosecutor's filing an information in superior court, (2) a grand jury indictment, (3) an inquest proceeding, and (4) the filing of a criminal complaint before a magistrate.

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[3] Criminal Law - Evidence - Hearsay - Right of Confrontation - Availability of Declarant - Testifying Declarant. The admission of an incriminating hearsay statement in a criminal trial does not implicate the defendant's constitutional right to confront adverse witnesses if the declarant testifies at the trial.

[4] Criminal Law - Evidence - Other Offenses or Acts - Test. Before prior bad act evidence may be admitted against a criminal defendant under ER 404(b), the trial court must (1) find, by a preponderance of the evidence, that the prior bad act occurred; (2) identify the purpose for which the evidence is sought to be introduced; (3) determine whether the evidence is relevant to prove an element of the crime charged; and (4) weigh, on the record, the probative value of the evidence against its prejudicial effect.

[5] Criminal Law - Evidence - Other Offenses or Acts - Review - Standard of Review. A trial court's decision to admit evidence of a criminal defendant's prior bad acts under ER 404(b) is reviewed for an abuse of discretion. Discretion is abused if the decision is based on untenable grounds or discretion is exercised in a manifestly unreasonable manner.

[6] Criminal Law - Evidence - Other Offenses or Acts - Relevance - Balanced Against Prejudice - Harmless Error. A trial court's erroneous failure to balance the probative value of prior bad act evidence against its prejudicial effect before admitting the evidence under ER 404(b) is harmless if the result of the trial would have been the same had the error not occurred.

[7] Criminal Law - Witnesses - Credibility - Opinion Evidence - Validity. In a criminal trial, one witness may not give an opinion as to another witness's credibility. To do so is to violate the defendant's constitutional right to a jury trial and to invade the fact-finding province of the jury.

[8] Criminal Law - Review - Issues Not Raised in Trial Court - Constitutional Rights - Admission of Evidence. A claim of evidentiary error at trial may be raised by a criminal defendant for the first time on appeal if the error violates a constitutional right.

[9] Appeal - Review - Issues Not Raised in Trial Court - Constitutional Rights - Four-Step Procedure. In deciding whether an alleged constitutional error at trial may be raised for the first time on appeal as manifest constitutional error under RAP 2.5(a)(3), the reviewing court must (1) determine whether the alleged error is a constitutional error; (2) if so, determine whether the alleged error is manifest; (3) if so, address the merits of the constitutional issue; and (4) if the court determines that a constitutional error was committed, determine whether the error was harmless.[10] Appeal - Review - Issues Not Raised in Trial Court - Constitutional Rights - Court Rule - "Manifest Error" -

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What Constitutes. For purposes of RAP 2.5(a)(3), which permits a manifest error affecting a constitutional right to be raised for the first time on appeal, a constitutional error is "manifest" if it had practical and identifiable consequences in the trial of the case.

[11] Criminal Law - Review - Harmless Error - Constitutional Error - Evidentiary Error - Test - Overwhelming Evidence of Guilt. An evidentiary error of constitutional magnitude in a criminal trial is harmless if a reviewing court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result had the error not occurred. Under this test, the error is harmless if the untainted evidence is so overwhelming that it necessarily leads to a finding of guilty.

[12] Criminal Law - Evidence - Opinion Evidence - Mental State of Witness - Harmless Error. In a criminal trial in which a testifying witness's out-of-court statement to police is introduced into evidence by the State, it is improper for the State to elicit from another witness an opinion as to the first witness's mental state in giving the out-of-court statement, but such error is subject to harmless error analysis.

[13] Criminal Law - Evidence - Review - Preservation for Review - Timely Objection - Necessity. In a criminal trial, the defendant's failure to object to the admission of evidence prevents appellate review of a claim that admission of the evidence was error unless the error is manifest error of constitutional magnitude.

[14] Criminal Law - Witnesses - Credibility - Opinion Evidence - Impeachment of Domestic Violence Victim. In the trial of a defendant for a domestic violence crime in which the female victim testifies contrary to an earlier written statement that the defendant was abusive, police officer testimony that many female victims of domestic abuse recant their statements at trial because of fear, further abuse, or financial difficulties is improper as a comment on the witness's credibility, but such error is subject to harmless error analysis.

[15] Criminal Law - Evidence - Character Evidence - Reputation - Defendant - General Community - Necessity. A witness may not testify to the good reputation of a criminal defendant absent a foundation establishing that the defendant's reputation is based on perceptions in the community. A witness's personal opinion is insufficient to lay such a foundation. A valid community must be neutral enough and generalized enough to be classed as a community.

[16] Criminal Law - Evidence - Character Evidence - Reputation - Defendant - Review - Standard of Review. A trial court's exclusion of testimony as to a criminal defendant's good reputation is reviewed for an abuse of discretion.[17] Criminal Law - Evidence - Character Evidence - Reputation - Defendant - General Community - Family. A

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criminal defendant's family is not neutral enough and generalized enough to be classed as a community for purposes of admitting evidence of the defendant's good reputation.

[18] Criminal Law - Trial - Misconduct of Prosecutor - Test. Prosecutorial misconduct may violate a defendant's due process right to a fair trial. To prevail on an allegation of prosecutorial misconduct, the defendant must show (1) improper conduct and (2) prejudicial effect. Prejudice is shown only if there is a substantial likelihood that the improper conduct affected the jury's verdict.

[19] Criminal Law - Trial - Misconduct of Prosecutor - Argument - Inferences From Evidence - Appeal to Passion or Prejudice. A prosecutor has a wide latitude in closing argument to draw and express reasonable inferences from the evidence, but the prosecutor may not appeal to the jury's passions or prejudices.

[20] Criminal Law - Trial - Misconduct of Prosecutor - Argument - Taken in Context. A prosecutor's allegedly improper remarks are reviewed in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury.

[21] Criminal Law - Trial - Misconduct of Prosecutor - Argument - Waiver - Failure To Object - In General. A criminal defendant's failure to object to an improper remark made by the prosecutor at trial waives the error unless the remark was so flagrant or ill-intentioned that it caused an enduring prejudice that could not have been cured by an instruction to the jury.

[22] Criminal Law - Trial - Misconduct of Prosecutor - Argument - Waiver - Failure To Request Curative Instruction. A prosecutor's improper argument does not require reversal if the error could have been obviated by a curative instruction and the defendant failed to request one.

[23] Criminal Law - Trial - Misconduct of Prosecutor - Argument - "Golden Rule" Argument. It is improper for a prosecutor to appeal to jurors to decide a defendant's guilt by placing themselves in the position of the victim. This is known as a "golden rule" argument. Such an argument is improper because it encourages jurors to depart from neutrality and decide the case on the basis of personal interest rather than on the evidence. While the argument is erroneous, it is not per se prejudicial as its adverse effect can be removed if the trial court sustains a timely objection and instructs the jury to disregard the argument.[24] Criminal Law - Trial - Misconduct of Prosecutor - Argument - Defendant's Failure To "Take Responsibility". A prosecutor does not commit misconduct at trial by commenting that the defendant has failed to "take responsibility" for the crime charged if the comment is made in response to a defense argument

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placing the blame for the crime on the victim. In such a case, the comment does not constitute a comment on the defendant's failure to take the stand or to present evidence.

[25] Criminal Law - New Trial - Review - Standard of Review. A trial court's denial of a criminal defendant's motion for a new trial is reviewed for an abuse of discretion.

[26] Criminal Law - New Trial - Newly Discovered Evidence - Change Result - Merely Cumulative or Impeaching. Newly discovered evidence does not justify granting a new trial under CrR 7.5(a)(3) if it is merely cumulative or impeaching or will not change the result of the trial.

[27] Criminal Law - New Trial - Newly Discovered Evidence - Test. A new trial is justified by newly discovered evidence under CrR 7.5(a)(3) only if the evidence (1) will probably change the result of the trial, (2) was discovered after the trial, (3) could not have been discovered before trial by the exercise of due diligence, (4) is material, and (5) is not merely cumulative or impeaching. The absence of any one of these factors is grounds for denying a new trial.

[28] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Review - Question of Law or Fact - Standard of Review. A criminal defendant's claim of ineffective assistance of counsel presents a mixed question of law and fact that is reviewed de novo.

[29] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Test. A criminal defendant is not denied effective assistance of counsel unless counsel's performance is deficient and the deficiency is prejudicial to the defense.

[30] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Failure To Request Instruction - Limiting Instruction - Harmless Error. Defense counsel's failure to propose a limiting instruction after an objection to the admission of evidence is overruled is not ineffective assistance of counsel if such failure is harmless error.

[31] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Failure To Object to State's Argument. Defense counsel's failure to object to comments made by the prosecutor that do not rise to the level of misconduct because they are not flagrant and ill-intentioned is not ineffective assistance of counsel, particularly if an objection would have had no effect on the case.

Nature of Action: Prosecution for (1) second degree assault - domestic violence and (2) unlawful imprisonment - domestic violence.Superior Court: The Superior Court for Clark County, No. 03-1-00198-8, John F. Nichols, J., on August 5, 2003,

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entered a judgment on a verdict finding the defendant guilty of second degree assault - domestic violence. The court denied the defendant's motion for a new trial under CrR 7.5(a)(3) based on newly discovered evidence.

Court of Appeals: Holding that the several errors claimed by the defendant either were not established or were harmless, the court affirms the judgment.

David Schultz , for appellant.

Ted H. Gathe , City Attorney for the City of Vancouver, and Kevin J. McClure , City Prosecutor, for respondent.

¶1 BRIDGEWATER , J . - Binh Thach appeals his conviction of second degree assault - domestic violence. We affirm.

¶2 On January 24, 2003, Renee Thach planned to drop off some paperwork at the unemployment office for training benefits. She had been out of work since September 2002. After taking her shower, she proceeded to apply her makeup.

¶3 Binh had overheard a conversation Ms. Thach had with a friend regarding her plans for the day and he was upset because she had not shared her plans with him. Ms. Thach sat with her back to Binh. When Binh questioned his wife about her plans for the day, she responded rudely to him. Her comment upset him and Binh shoved his wife's shoulder with his hand, upsetting her. She started to get up but Binh pushed her away and knocked her into the wall.

¶4 Binh and his wife proceeded to argue. Ms. Thach attempted to push him aside so she could finish getting dressed. But when she pushed him, he pushed back and she fell to the ground, losing her towel.

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¶5 The two continued to argue and Ms. Thach grabbed Binh's shoulders and tried to push him out of her way. At the same time, Binh attempted to move Ms. Thach by her shoulders. The two began to wrestle. Ms. Thach asked Binh to allow her to get dressed and he released her.

¶6 Once she finished getting dressed, Ms. Thach went to her sock drawer to get a pair of socks. When Ms. Thach opened her sock drawer and began to put on her socks, Binh became upset. He asked his wife if she intended to go somewhere and she replied that she intended to leave the apartment because she did not want to deal with him anymore.

¶7 She got up and again pushed Binh out of the way so she could get her other sock. This made Binh more upset and the two renewed their wrestling match. Ms. Thach stood up and grabbed her husband's thigh to push him out of the way. Binh shoved his wife's arms away. Ms. Thach stood up and pushed her husband.

¶8 Ms. Thach ended up on the ground with her husband on top of her. She attempted to kick him in the groin and pinch him. Binh tried to gain control of Ms. Thach's kicking and he held onto her leg. This caused Ms. Thach to pull her hamstring. She screamed when she pulled her hamstring and Binh backed off. Ms. Thach then ran out of the apartment.

¶9 Ms. Thach went to the apartment leasing office. Amanda Guderjahn, the apartment manager, and her assistant were in the leasing office. Ms. Thach walked into the leasing office, crying hysterically, and fell to the floor. She had on a t-shirt, jeans, and one sock but no shoes. Ms. Thach asked that someone call 911. After Guderjahn's assistant placed the 911 call, Binh entered the office with the couple's two daughters. He left his daughters with their mother and left the office. After Binh departed, Ms. Thach told Guderjahn what had happened.

¶10 Officer Neal Martin of the Vancouver Police Department responded to the 911 call. When he arrived, Ms. Thach

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came out of the office limping. Officer Martin learned that Binh had already left the complex. Based on the information he received from Ms. Thach and her appearance, Officer Martin radioed to other units to be looking out for Binh's vehicle. The officer then took a more in-depth statement from Ms. Thach.

¶11 Ms. Thach told the officer that she had been in an argument with her husband and that the argument had escalated into an assault. She told the officer that during the argument her husband pushed her into a wall and threw her on the ground. After he allowed her to get dressed, he pushed her into a filing cabinet; strangled, punched, and kicked her; and stepped on her face to hold her down while she was on the ground. Ms. Thach also told Officer Martin that Binh had grabbed her leg and pushed it over her head causing her pain.

¶12 Officer Martin called an ambulance. While Ms. Thach received medical care, Officer Martin had her fill out a Smith affidavit, State v. Smith , 97 Wn.2d 856 , 651 P.2d 207 (1982), or domestic violence victim statement. Ms. Thach filled out the first page of the form but Officer Martin filled out the second page because she was receiving medical care. Ms. Thach signed the statement. The domestic violence form contained a statement saying that the victim "certi[fied] or declare[d], under penalty of perjury under the laws of the State of Washington, that the foregoing is true and correct." Ex. 6.

¶13 Officer James Azinger located Binh and stopped his vehicle. Officer Azinger approached the car and before he said anything to him, Binh asked whether his being pulled over had something to do with his wife. Officer Azinger asked Binh to step out of the car, arrested him, placed him in the back of the patrol car, and read him his Miranda warnings.«1»Binh chose to speak with Officer Azinger and told him, "I just lost it this time." 2 Report of Proceedings (RP) (June 17, 2003) at 149.

«1» Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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¶14 Binh admitted pushing his wife with an open hand to get her to turn around and talk to him. He further stated that his wife fell down on the ground and became angry and that they wrestled on the ground and he tried to gain control of her. Binh was on top while his wife laid face up on the ground. He had his legs straddled over his wife's stomach and he held down her arms.

¶15 The State charged Binh with second degree assault - domestic violence and unlawful imprisonment - domestic violence. At trial, the State called Ms. Thach. She stated that she and Binh had been married five years at the time of the assault and that she had been with him since she was 15. Ms. Thach's testimony about the assault was similar to the statement she gave to the police except she testified that Binh had never abused her in the past. The State asked Ms. Thach to identify her written statement. Ms. Thach admitted that she recognized her written statement, that the statement contained her handwriting, that she wrote the statement while in the ambulance, and that she signed the statement under penalty of perjury. The State then sought to admit Ms. Thach's written statement. After some discussion by the parties, the court admitted Ms. Thach's written statement as substantive evidence, but the court also allowed the State to use it to impeach her to the extent that she now asserted Binh had never abused her in the past.

¶16 The State then had Ms. Thach read portions of her victim statement where she wrote of other past acts. Ms. Thach tried to explain the discrepancies between her testimony and her statement by stating that she over-exaggerated in her victim's statement.

¶17 The State also called Dr. Anita Demlow, Ms. Thach's treating physician, to testify. Dr. Demlow examined Ms. Thach in the emergency room on January 24. She stated that Ms. Thach told her she had been assaulted. Ms. Thach explained to the doctor the events of that day. The State asked, "[w]ere you able to provide a clinical impression or diagnosis of what happened or - as far as what - not what

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happened as the facts, but - . . . what happened to the patient and her injuries and her body?" 1 RP (June 16, 2003) at 32. Dr. Demlow responded that it appeared to her after the examination that what happened to Ms. Thach was true. She also stated that Ms. Thach's examination was consistent with the story she told Dr. Demlow. Binh did not object to the State's question or the answer.

¶18 During Officer Martin's testimony, the State asked him whether Ms. Thach appeared angry or vindictive after the assault. Officer Martin responded, "[n]o." 1 RP at 123. Binh did not object to this question or the answer. The State also asked Officer Martin why he had domestic violence victims fill out a written form. The officer explained that studies showed that victims of domestic violence often changed their minds after the abusive episode concluded. The written statement was taken in case the victim later changed his or her statement. Binh did not object to this question or answer.

¶19 Officer Martin also testified that he helped Ms. Thach fill out part of her victim's statement. While Ms. Thach received medical care, the officer asked her questions and wrote down her responses. Officer Martin then witnessed Ms. Thach sign the statement.

¶20 Binh attempted to introduce the testimony of Song Thach, his sister, as a character witness regarding his peaceful nature. The court found that Binh's family community would not establish his reputation in the community at large. The court denied Binh's offer of character evidence because he was unable to establish the appropriate foundation.

¶21 During closing arguments, the prosecutor argued that prior incidents of abuse against Ms. Thach were possible reasons why she attempted to minimize the assault when she testified. In its rebuttal argument, the State also responded to Binh's argument of blaming Ms. Thach for her injuries by pointing out to the jury that he failed to take responsibility for his actions.

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¶22 At the end of trial, the jury convicted Binh of second degree assault - domestic violence. The jury did not find Binh guilty of unlawful imprisonment - domestic violence. The court sentenced Binh within the standard range.

¶23 After the trial, Binh moved for a new trial under CrR 7.5(a)(3) based on newly discovered evidence. He based the motion on the affidavit of Bette Jo Claycamp, Binh's mother-in-law, who explained that Ms. Thach suffered from bipolar disorder. At the time of trial, Ms. Thach was not under treatment for her medical condition. Binh argued that Ms. Thach's mental state at the time of the assault was relevant to her credibility at trial. Binh further argued that since the trial revolved around Ms. Thach's credibility, the newly discovered evidence likely would have changed the trial outcome. The trial court denied the motion for a new trial, stating that Binh knew about Ms. Thach's mental disorder and bipolar condition. Binh now appeals his conviction, raising several errors.

I. Admission of Ms. Thach's Written Statement

¶24 Binh argues that the State failed to establish the admissibility of Ms. Thach's written statement under ER 801(d)(1)(i). We disagree.

[1]¶25 In State v. Smith , 97 Wn.2d 856 , 863, 651 P.2d 207 (1982), the Supreme Court held that if a prior inconsistent statement satisfies the elements of ER 801(d)(1)(i), the statement is admissible as substantive evidence. Under ER 801(d)(1)(i), a court may admit statements of a witness when:

[t]he declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is (i) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.

ER 801(d)(1)(i). Binh contends that Ms. Thach's statement was not made under oath and was not part of a deposition or formal proceeding. Binh's contention inaccurately ap

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plies the case law regarding the admissibility of these types of statements.

[2]¶26 To determine whether a statement is admissible, the trial court considers the Smith factors. State v. Nelson , 74 Wn. App. 380 , 387, 874 P.2d 170, review denied , 125 Wn.2d 1002 (1994). Those factors are: (1) whether the witness voluntarily made the statement; (2) whether there were minimal guaranties of truthfulness; (3) whether the statement was taken as standard procedure in one of the four legally permissible methods for determining the existence of probable cause; and (4) whether the witness was subject to cross examination when giving the subsequent inconsistent statement. Smith , 97 Wn.2d at 861 -63. All four factors are met in the present case.

¶27 The first factor to consider is whether the witness voluntarily made the statement. Smith , 97 Wn.2d at 861 -63. Officer Martin provided the domestic violence form to Ms. Thach. She then filled out the first page of the form. At trial, Ms. Thach testified that she wrote and signed her statement while seated in an ambulance after the assault.

¶28 The second factor to consider is whether there were minimal guarantees of truthfulness. Smith , 97 Wn.2d at 861 -62. In Smith , the police took the victim to a notary and had the victim's statement notarized. Smith , 97 Wn.2d at 858 . In Nelson , the victim's affidavit included the following language: "I have read the attached statement or it has been read to me and I know the contents of the statement." Nelson , 74 Wn. App. at 390 .

¶29 In the present case, Ms. Thach testified that she signed her statement under penalty of perjury. Officer Martin also testified that Ms. Thach filled out the first part of the domestic violence form and he assisted her with the final questions as Ms. Thach received medical care. The officer witnessed Ms. Thach sign her statement. From this evidence a reasonable person could find that Ms. Thach's statement carried minimal guarantees of truthfulness.

¶30 The third factor is whether the statement was taken as a standard procedure in one of the legally permissible

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methods for determining the existence of probable cause. Smith , 97 Wn.2d at 862 . The Smith court listed those four methods as: " '(1) filing of an information by the prosecutor in superior court; (2) grand jury indictment; (3) inquest proceedings; and (4) filing a criminal complaint before a magistrate.' " Smith , 97 Wn.2d at 862 (citations omitted) (quoting State v. Jefferson , 79 Wn.2d 345 , 347, 485 P.2d 77 (1971)).

¶31 Officer Martin took Ms. Thach's statement as part of a standard procedure for determining probable cause. He testified that obtaining a signed, written victim statement in a domestic violence case was standard procedure. The statement was part of the evidence Officer Martin gathered and forwarded to the prosecutor. He also forwarded police reports to the prosecutor. The prosecutor used all of this information in order to establish probable cause and to determine whether to file an information in the superior court.

¶32 The final factor a court considers in determining admissibility is whether the witness was subject to cross-examination when giving the subsequent statement. Smith , 97 Wn.2d at 862 . Here, Binh had the opportunity to cross-examine his wife. The State satisfied all of the Smith factors and the trial court properly admitted Ms. Thach's statement.

[3]¶33 Binh also raises the issue of admissibility under the holding set forth recently in Crawford v. Washington , 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Crawford has no bearing on this case as the Supreme Court stated that the confrontation clause is not implicated when the declarant is available for cross-examination at trial. Crawford , 541 U.S. at 59 n.9. Ms. Thach appeared at trial and Binh was able to cross-examine her about her statements.

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II. Admission of Prior Bad Acts

¶34 Binh contends the trial court abused its discretion when it admitted evidence of previous abuse against his wife.

[4]¶35 "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." ER 404(b); State v. Holmes , 43 Wn. App. 397 , 400, 717 P.2d 766, review denied , 106 Wn.2d 1003 (1986). "To admit evidence of other wrongs, the trial court must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charge[d], and (4) weigh the probative value against the prejudicial effect." State v. Vy Thang, 145 Wn.2d 630 , 642, 41 P.3d 1159 (2002). Here, the court did not comply with these requirements.

[5]¶36 We review the trial court's decision to admit or exclude evidence for an abuse of discretion. State v. Stenson, 132 Wn.2d 668 , 701, 940 P.2d 1239 (1997), cert. denied , 523 U.S. 1008 (1998). "An abuse of discretion occurs when the trial court bases its decision on untenable grounds or exercises discretion in a manner that is manifestly unreasonable." State v. Zunker , 112 Wn. App. 130 , 140, 48 P.3d 344 (2002) (citing State v. Valdobinos , 122 Wn.2d 270 , 279, 858 P.2d 199 (1993)), review denied , 148 Wn.2d 1012 (2003).

¶37 The State sought to admit Binh's prior bad acts to rebut Ms. Thach's defense that abuse had never happened before and to explain why during Ms. Thach's testimony she minimized and blamed herself for the assault. The evidence of prior bad acts clearly reflected on Ms. Thach's credibility. But the State, in closing arguments, used the prior bad acts as an explanation for why Ms. Thach recanted her story in her testimony.

¶38 Here, the State did not use the prior bad acts solely to show propensity and did not improperly use the evidence

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of prior bad acts in its closing arguments but instead illustrated that the prior incidents were possible reasons why Ms. Thach took the stand and attempted to minimize the assault and other incidents of abuse. But, nonetheless, the trial court should have followed the correct procedure and done an examination on the record with a proper balancing test.

[6]¶39 Evidentiary errors under ER 404 are not of constitutional magnitude, so we must determine whether the trial outcome would have differed if the error had not occurred. State v. Robtoy , 98 Wn.2d 30 , 653 P.2d 284 (1982); State v. Jackson , 102 Wn.2d 689 , 689 P.2d 76 (1984). We find it would not because Ms. Thach testified to all of the elements of the offense, verified that she had made the statement to the police, made the same statement of assault to the treating physician, and had injuries consistent with her physical examination in the emergency room. Thus, although the court erred, the error was harmless.

III. Improper Testimony

¶40 Binh asserts that the statements by Dr. Demlow and Officer Martin of their belief in Ms. Thach's initial statements that he assaulted her improperly invaded the province of the jury.

A. Dr. Demlow's Testimony

¶41 On January 24, 2003, Dr. Demlow treated Ms. Thach in the emergency room. She made a record of the bruised areas and places where Ms. Thach complained of pain. At trial, the State asked Dr. Demlow the following question: "[w]ere you able to provide a clinical impression or diagnosis of what happened or - as far as what - not what happened as the facts, but - . . . what happened to the patient and her injuries and her body?" 1 RP at 32. The doctor responded, "I guess it appeared to me, after examining her, that it was likely that what she had told me had happened to her was true. And her exam was consistent

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with the story that I received from her about the types of injuries that were inflicted on her." 1 RP at 32. Thach did not object to the State's question or the doctor's answer.

[7, 8]¶42 Improper opinion testimony violates the defendant's right to a jury trial and invades the fact-finding province of the jury. State v. Dolan , 118 Wn. App. 323 , 329, 73 P.3d 1011 (2003). A witness is not allowed to give an opinion on another witness's credibility. State v. Carlson , 80 Wn. App. 116 , 123, 906 P.2d 999 (1995). Because improper opinion testimony violates a constitutional right, a defendant may generally raise the issue for the first time on appeal. State v. Saunders , 120 Wn. App. 800 , 811, 86 P.3d 232 (2004). Under RAP 2.5(a)(3), we may consider a manifest error affecting a constitutional right raised for the first time on appeal.

[9, 10]¶43 Where a defendant contends a manifest error occurred at the trial level, we review the error employing a four-part test. State v. Lynn , 67 Wn. App. 339 , 345, 835 P.2d 251 (1992). First, we determine whether the alleged error is a constitutional error. Second, we determine whether the alleged error is manifest. Lynn , 67 Wn. App. at 345 . Key to this determination is "a plausible showing by the defendant that the asserted error had practical and identifiable consequences in the trial of the case." Lynn , 67 Wn. App. at 345 . Third, if we find the alleged error to be manifest, then we must address the merits of the constitutional issue. Lynn , 67 Wn. App. at 345 . Finally, if we determine that a constitutional error occurred, then we undertake a harmless error analysis. Lynn , 67 Wn. App. at 345 .

[11]¶44 As previously stated, improper opinion testimony invades the province of the jury and thus violates a constitutional right of the defendant. Dolan , 118 Wn. App. at 329 . Thus, we need not address the first three points in the test. Instead, we now must determine whether the admission of the improper opinion testimony was a harmless error. We use the harmless error test set forth in State v. Guloy , 104 Wn.2d 412 , 425, 705 P.2d 1182 (1985), cert.

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denied , 475 U.S. 1020 (1986), to determine if a constitutional error is harmless. Under that test "[a] constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error." Guloy , 104 Wn.2d at 425 . We employ the "overwhelming untainted evidence" test to determine if the error was harmless. Guloy , 104 Wn.2d at 426 . Under the overwhelming evidence test, the court examines whether the untainted evidence is so overwhelming that it leads necessarily to a finding of guilt. State v. Carlin , 40 Wn. App. 698 , 703, 700 P.2d 323 (1985).

¶45 The evidence here is overwhelming. Here, the victim testified to the injuries and the assault on her, the court admitted her statement as substantive evidence of the injuries and the assault by Binh, and she made a statement to the physician consistent with her injuries and corroborating the assault. Any reasonable jury would have reached the same result in the absence of this error.

B. Testimony of Officer Martin

¶46 Binh asserts that the State improperly asked Officer Martin to express his opinion regarding Ms. Thach's mental state at the time of her statements to the police. He also argues that Officer Martin made a comment on Ms. Thach's credibility when he explained why the police department takes written statements in domestic violence cases. We disagree.

1. Mental State of Ms. Thach

[12]¶47 Here, the State asked Officer Martin if he recalled Ms. Thach being "angry or vindictive" on the day of the assault. 1 RP at 123. Officer Martin responded "[n]o." 1 RP at 123. This question was improper; but subject to the same analysis as the opinion testimony of Dr. Demlow. The error was harmless under a constitutional standard.

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2. Written Victim Statements

[13]¶48 Binh contends that the trial court erred by admitting Officer Martin's testimony regarding why the police department took written statements from domestic violence victims. Binh failed to object. Thus, this issue is not reviewable unless it is a manifest error of constitutional magnitude. RAP 2.5(a)(3).

[14]¶49 The State asked Officer Martin to discuss why the police collected a written statement from domestic violence victims. Officer Martin referred to a study showing that many women recant their statements at trial because of fear, further abuse, or financial difficulties. Division One held in State v. Grant , 83 Wn. App. 98 , 107, 920 P.2d 609 (1996), that victims of domestic violence often attempt to appease their abusers by changing their earlier statements at trial in an attempt to avoid further violence. Although this statement is no doubt true, it is improper in the context of a trial where the victim has testified and the State is impeaching her. It becomes an opinion on the credibility of the victim's courtroom testimony. As we pointed out in Carlson , this would be a comment on the witness's conduct, i.e., credibility, at the time of trial - which neither an expert nor a lay person's opinion is permissible. Carlson , 80 Wn. App. at 123 . But this error is subject to the same analysis for constitutional harmless error as the others. The error is harmless in light of the testimony of the victim as to the elements of the assault by her husband, her statement to the police, and the physical findings of the physician. The evidence was overwhelming; this is not a manifest constitutional error under RAP 2.5.

¶50 We do not minimize these errors when we find them harmless. Nor do we approve of the methods used or the lack of control of the witnesses' testimony where constitutional rights are at issue.

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IV. Exclusion of Character Evidence

¶51 Binh argues that the trial court erred by not allowing him to introduce a character witness. We disagree.

¶52 At trial, Binh sought to introduce reputation testimony that he was peaceful and nonviolent. On the second day of trial, Binh announced that his sister, Song Thach, was available to testify regarding his character. The court ruled that Binh's sister could not testify to establish his reputation in the community.

[15, 16]¶53 In order to offer reputation testimony, a witness must lay a foundation establishing that the subject's reputation is based on perceptions in the community. ER 608(a). A witness's personal opinion is not sufficient to lay a foundation. State v. Land , 121 Wn.2d 494 , 500, 851 P.2d 678 (1993); ER 608 cmt. Our Supreme Court has held that a valid community must be " 'neutral enough [and] generalized enough to be classed as a community.' " State v. Lord , 117 Wn.2d 829 , 874, 822 P.2d 177 (1991) (quoting Parker v. State , 458 So. 2d 750, 753-54 (Fla. 1984), cert. denied , 470 U.S. 1088 (1985)), cert. denied , 506 U.S. 856 (1992). We review a trial court's decision to exclude evidence for an abuse of discretion. Land , 121 Wn.2d at 500 .

[17]¶54 In the present case, Binh sought to establish his peacefulness within the community of his family. No case law exists supporting the proposition that a family constitutes a community for purposes of character evidence. Under the holding in Lord , a family is not "neutral enough [and] generalized enough to be classed as a community." Lord , 117 Wn.2d at 874 . Defense counsel only had Song's testimony to establish that Binh was peaceful and nonviolent. Further, as the court noted, defense counsel was unable to establish the proper foundation to admit Song's testimony. The trial court did not err by failing to allow Song to testify.

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V. Prosecutorial Misconduct

¶55 Binh contends the prosecutor committed misconduct during closing argument because he appealed to the jury's sympathy and argued that Binh refused to take responsibility for the assault against his wife. The record does not support these assertions.

[18, 19]¶56 Prosecutorial misconduct may violate a defendant's due process right to a fair trial. State v. Charlton , 90 Wn.2d 657 , 664, 585 P.2d 142 (1978). In order to prevail on an allegation of prosecutorial misconduct, a defendant must show both improper conduct and prejudicial effect. State v. Pirtle , 127 Wn.2d 628 , 672, 904 P.2d 245 (1995), cert. denied , 518 U.S. 1026 (1996). A defendant establishes prejudice only if there is a substantial likelihood the instances of misconduct affected the jury's verdict. State v. Evans , 96 Wn.2d 1 , 5, 633 P.2d 83 (1981). Courts afford a prosecutor wide latitude in closing argument to draw and express reasonable inferences from the evidence. State v. Millante , 80 Wn. App. 237 , 250, 908 P.2d 374 (1995), review denied , 129 Wn.2d 1012 (1996). A prosecutor, however, may not appeal to the jury's passions or prejudice. State v. Claflin , 38 Wn. App. 847 , 850-51, 690 P.2d 1186 (1984), review denied , 103 Wn.2d 1014 (1985).

[20-22]¶57 We review a prosecutor's comments during closing argument "in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury." State v. Brown , 132 Wn.2d 529 , 561, 940 P.2d 546 (1997) (citing State v. Russell , 125 Wn.2d 24 , 85-86, 882 P.2d 747 (1994), cert. denied , 514 U.S. 1129 (1995)), cert. denied , 523 U.S. 1007 (1998). Failing to object waives the objection unless the comment was so flagrant or ill-intentioned that it causes an enduring prejudice that could not be cured by instruction. Brown , 132 Wn.2d at 561 . A new trial is not necessary if the trial court could have cured the misconduct by giving a curative instruction but the defendant did not request one. Brown , 132 Wn.2d at 561 .

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[23]¶58 Binh's first example of prosecutorial misconduct involves the "golden rule." Typically, specific references by counsel to allusions, such as " 'urging the jurors to place themselves in the position of one of the parties to the litigation, or to grant a party the recovery they would wish themselves if they were in the same position,' " is an improper argument. Adkins v. Aluminum Co. of Am. , 110 Wn.2d 128 , 139, 750 P.2d 1257, 756 P.2d 142 (1988) (quoting JACOB STEIN, CLOSING ARGUMENT § 60, at 159 (1985)). Courts find such arguments improper because it encourages jurors to depart from neutrality and decide the case on the basis of personal interest rather than on the evidence. Adkins , 110 Wn.2d at 139 . Reversal of a conviction is not automatic where a golden rule argument was made; its prejudicial effect can be removed if the trial court sustains a timely objection and instructs the jury to disregard it. Adkins , 110 Wn.2d at 141 -42.

¶59 In this case, Binh asserts that the prosecutor made a golden rule argument but he failed to cite to the record where the argument occurred. In reviewing the prosecutor's closing argument, we find references to "you" but, as the State argues in its brief, "you" was used rhetorically and not specifically to invoke sympathy from the jury. Br. of Resp't at 24. In none of the uses did Binh object. The prosecutor's comments did not invoke the golden rule as they did not ask the jury to put itself in the position of the victim.

¶60 The second alleged example of prosecutorial misconduct involves the prosecutor's comment that Binh failed to take responsibility. Binh argues that the prosecutor attempted to comment on Binh's silence since he did not take the stand or present evidence concerning the facts of the case. This argument is also meritless.

[24]¶61 The prosecutor's statement that Binh failed to "take responsibility" for the assault against his wife was in response to defense counsel's closing argument. Br. of Resp't at 25. Defense counsel attempted to place much of the blame for the assault on Ms. Thach. The prosecutor's

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comment was not a comment on Binh's failure to take the stand or present evidence.

¶62 Binh fails to demonstrate how the prosecutor's statements prejudicially affected his case. Thus his claims of prosecutorial misconduct fail.

VI. Motion for a New Trial

¶63 Binh contends that the trial court erred when it denied his motion for a new trial based on newly discovered evidence. We disagree.

[25, 26]¶64 We review a trial court's denial of a motion for new trial for manifest abuse of discretion. State v. Hutcheson , 62 Wn. App. 282 , 297, 813 P.2d 1283 (1991), review denied , 118 Wn.2d 1020 (1992). Under CrR 7.5(a)(3), a court in its discretion may grant a new trial "when it affirmatively appears that a substantial right of the defendant was materially affected . . . [by] [n]ewly discovered evidence material for the defendant, which [he] could not have discovered with reasonable diligence and produced at the trial." If the newly discovered evidence is merely cumulative or impeaching or will not change the trial result, it does not justify granting a new trial. Hutcheson , 62 Wn. App. at 297 .

[27]¶65 A defendant must establish "that the evidence (1) will probably change the result of the trial; (2) was discovered since the trial; (3) could not have been discovered before trial by the exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching." State v. Williams, 96 Wn.2d 215 , 223, 634 P.2d 868 (1981) (emphasis omitted). The absence of any one of the five factors is grounds for the denial of a new proceeding. Williams , 96 Wn.2d at 223 .

¶66 Binh asserts that evidence that Ms. Thach suffered from bipolar disorder warranted a new trial. In making its ruling, the trial court stated that Binh knew about Ms. Thach's mental disorder, thus it denied his motion for a new trial.

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¶67 The record before us reveals no abuse of discretion. Binh failed to establish all five elements necessary for a new trial. The information regarding Ms. Thach's mental disorder was not newly discovered evidence. Binh knew at the time of trial that his wife suffered from the disease and he even admitted this knowledge to the court. The trial court properly denied Binh's motion for a new trial.

VII. Ineffective Assistance of Counsel

¶68 Binh argues he received ineffective assistance of counsel because defense counsel (1) failed to object to improper opinion evidence; (2) did not propose limiting instructions on the use of prior bad acts; and (3) failed to object to multiple instances of prosecutorial misconduct during closing argument. His argument is meritless.

[28, 29]¶69 Ineffective assistance of counsel is "a mixed question of law and fact" and is reviewed by this court de novo. Strickland v. Washington , 466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prevail on a claim of ineffective assistance of counsel, the defendant must show: (1) "counsel's performance was deficient," and (2) "the deficient performance prejudiced the defense." Strickland , 466 U.S. at 687.

¶70 Binh first contends the admission of Ms. Thach's written testimony shows the ineffectiveness of his defense counsel. But as we previously discussed, Ms. Thach's written victim statement satisfied the necessary criteria for admissibility. Binh also does not discuss how the admission of this statement prejudiced his case.

[30]¶71 Second, Binh argues defense counsel was ineffective because she failed to propose limiting instructions on the use of prior bad acts evidence. Here, defense counsel objected to the prior bad acts evidence but the court overruled the objection. Although defense counsel failed to propose a limiting instruction, this was harmless.

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¶72 The third contention involves the opinion testimony of Dr. Demlow and Officer Martin. But as noted above, the error was harmless.

[31]¶73 Finally, the prosecutor's comments did not rise to the level of misconduct because they were not ill-intentioned and flagrant. Moreover, defense counsel's failure to object had no effect on his case. Binh fails to show ineffective assistance of counsel.«2» State v. Thomas , 109 Wn.2d 222 , 226, 743 P.2d 816 (1987).

¶74 Affirmed.

QUINN-BRINTNALL , C.J ., and HOUGHTON , J ., concur .

«2»In his assignments of error, Binh raised assignment of error 9 but he did not dedicate any discussion to it in his brief. When a party fails to follow RAP 10.3(a)(5), this court does not consider its unsupported arguments. State v. Marintorres , 93 Wn. App. 442 , 452, 969 P.2d 501 (1999).