State Of Washington v. Karen Renee Morgan ( 2015 )


Menu:
  •     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    en
    STATE OF WASHINGTON,                                                               ~
    No. 71109-1-1              ^    5J
    Respondent,                                                  fv>   -H$/'
    DIVISION ONE              ^ gg
    v.
    UNPUBLISHED OPINION^ §S
    KAREN R. MORGAN,
    Appellant.                          FILED: March 2, 2015
    Appelwick, J. — Morgan appeals her conviction for third degree criminal
    mistreatment resulting from her care of an elderly patient at an adult family home. Morgan
    argues that the prosecutor improperly appealed to the passions of the jury and prejudiced
    the outcome, entitling her to a new trial. Her statement of additional grounds lacks merit.
    We affirm.
    FACTS
    In 2009, Hannah Sinnett, an elderly woman with multiple significant health issues,
    was a resident of Seattle Heights Elder Care Home. Seattle Heights was an adult family
    home licensed to and operated by Regina Daniels. Sinnett's attorney-in-fact and brother-
    in-law, Sam Robison, moved Sinnett into the home in 2006.
    Karen Morgan served as the nurse delegator for Seattle Heights.            A nurse
    delegator in an adult family home is charged with examining the residents at least every
    90 days and, when appropriate, training and delegating specific nursing care tasks to
    qualified and trained nursing assistants. WAC 246-840-930. Morgan became Sinnett's
    nurse delegator in 2006.
    On September 10, 2009, Morgan examined Sinnett. Morgan noted that Sinnett
    did not have any wounds at that time but was at risk for skin breakdown.
    No. 71109-1-1/2
    Morgan saw Sinnett again on December 22, 2009. She observed that Sinnett had
    developed several serious pressure ulcers.        Pressure ulcers result from continuous
    pressure on the skin, such as when a patient is bedbound. The constant pressure causes
    the skin to break down and potentially become infected. An infected pressure ulcer can
    be fatal.
    Morgan called Robison and informed him that Sinnett had very serious sores. She
    told Robison that Sinnett could go to the hospital or, if Robison wanted, Morgan could
    treat Sinnett at Seattle Heights. Morgan did not say that the wounds were open or
    infected or that Sinnett was at risk for death. Robison opted to have Sinnett stay at Seattle
    Heights.
    The next day, registered nurse Courtney Tarr was caring for another resident at
    Seattle Heights when she noticed a bad odor. She asked the caregiver about the smell
    and was directed to Sinnett's room. Tarr observed two pressure ulcers on Sinnett's left
    hip and sit bone. Tarr described the ulcers as "[djeep tissue injury, black, dead tissue,
    lots of yellowish drainage, horrible odor." She also noted that the wounds were not
    properly dressed.
    Tarr called Daniels and asked why Sinnett was not in the hospital. Daniels said
    that she would come to Seattle Heights but did not arrive before Tarr left. Laterthat day,
    Morgan called Tarr and told her that Sinnett's plan oftreatment was antibiotics and bed
    rest. Tarr responded that she would call 911 unless Sinnett was taken to the hospital.
    Morgan agreed to take Sinnett.
    No. 71109-1-1/3
    Four days later, on December 27, Sinnett was admitted to the emergency room at
    Swedish Hospital. Morgan did not accompany Sinnett to the hospital. The ambulance
    crew reported that Sinnett's chief complaint was "[ajltered mental status."
    Dr. Benjamin Seo treated Sinnett in the emergency room. He noted that Sinnett
    had several large chronic ulcers with signs of infection. The larger wounds were covered
    in a layer of dead tissue. Sinnett was also showing signs of sepsis. Dr. Seo provided her
    "heavy duty" intravenous antibiotics and admitted her to the hospital.
    On January 7, 2010, Sinnett was transferred to a nursing home. She died five
    days later.
    On December 21, 2011, the State charged Morgan with second degree criminal
    mistreatment in violation of RCW 9A.42.030. Under the statute, a person is guilty of
    criminal mistreatment in the second degree if he or she is employed to provide a
    dependent person the basic necessities of life and recklessly (a) creates an imminent and
    substantial risk of death or great bodily harm, or (b) causes substantial bodily harm by
    withholding any of the basic necessities of life. RCW 9A.42.030(1).
    Morgan pleaded not guilty. Her trial began on August 15, 2013. Her defense
    theorywas that she came into a situation where the risk ofdeath or great bodily harm had
    already been created and that it would not have affected Sinnett's overall health if she
    had been hospitalized when Morgan first noticed her ulcers.
    In closing argument, the prosecutor said,
    The defendant may argue to you in closing, "Well, Hannah was dying
    anyway. The defendant really didn't create a risk, because it was already
    too late."
    No. 71109-1-1/4
    Ladies and gentlemen, Hannah, we know, got better when she went
    into the hospital, not for a long time, but for a couple of weeks she was
    better. Her appetite improved, her mental state improved, and her lab tests
    showed improvement. That in itself is evidence that she wasn't dying on
    the 22nd, when [Morgan] took control of her care.
    Yes, Hannah probably didn't have long to live anyway, but at that
    stage of her life every day mattered, and how dare [Morgan] imply that this
    person's life didn't matter and that she was dying.
    Morgan objected that this was "improper argument," and the trial court sustained. When
    Morgan moved to strike or instruct the jury to disregard the comment, the court
    responded, "I'll sustain your objection."
    The jury found Morgan guilty of the lesser included crime of third degree criminal
    mistreatment.   She was sentenced to four months of electronic home detention.        She
    appeals.
    DISCUSSION
    I.   Prosecutorial Misconduct
    Morgan argues that the prosecutor improperly appealed to the jury's passion and
    prejudice by saying, "[H]ow dare [Morgan] imply that this person's life didn't matter and
    that she was dying." The State maintains that the comment did not constitute misconduct,
    because it was merely an expression of indignation warranted by the facts of the case.
    But, the trial court sustained Morgan's objection that the prosecutor's argument was
    improper. The State does not cross-appeal to challenge that ruling. The ruling is the law
    of the case. See Virgil v. Spokane Countv. 
    42 Wash. App. 796
    , 799, 
    714 P.2d 692
    (1986)
    (holding that an unchallenged ruling becomes the law of the case).
    However, an appellant bears the burden of showing that a prosecutor's improper
    comment was prejudicial. State v. Emery. 
    174 Wash. 2d 741
    , 760, 
    278 P.3d 653
    (2012).
    No. 71109-1-1/5
    Here, Morgan maintains that she was prejudiced by the trial court's refusal to strike the
    comment or instruct the jury to disregard it.
    Morgan first asserts that this refusal provided undue legitimacy to the State's
    improper argument.      When the trial court overrules an objection to a prosecutor's
    improper comment, that ruling lends an aura of legitimacy to the comment. State v.
    Davenport. 
    100 Wash. 2d 757
    , 764, 
    675 P.2d 1213
    (1984). But here, the trial court sustained
    Morgan's objection.     This signaled to the jury that the prosecutor's statement was
    improper and the court did not endorse the statement.
    Morgan further argues that, by leaving the statement in the record, the court
    created a serious risk that the comment would influence the jury's verdict. Upon review
    of the evidence and the context of the prosecutor's comment in the full trial, we disagree.
    The jury convicted Morgan of the lesser included crime of criminal mistreatment in
    the third degree. This required the State to show that Morgan (1) assumed responsibility
    or was employed to provide Sinnett the basic necessities of life and, (2) with criminal
    negligence, created an imminent and substantial risk of or caused substantial bodily harm
    to Sinnett by withholding any of the basic necessities. RCW 9A.42.035(1).
    As to the first element, Robison testified that Morgan advised him that she could
    treat Sinnett. He said that Morgan gave him confidence she could take care of it and he
    trusted her because she was a nurse who knew Sinnett.           This showed that Morgan
    assumed responsibility to provide Sinnett the basic necessities of life.
    As to the second element, the State argued that Morgan caused Sinnett to suffer,
    her condition to worsen, and her risk of dying to increase by not taking her to the hospital
    for five days.    There was considerable evidence to support this assertion.        Multiple
    No. 71109-1-1/6
    medical professionals testified that Morgan's in-home treatment plan was inadequate and
    Sinnett's condition required hospitalization. When Sinnett arrived at the hospital, she was
    malnourished, dehydrated, and showing signs of infection. Her condition had become so
    severe that it was appropriate not to pursue aggressive treatment of her wounds, such as
    surgery. Laura Vadman, a wound specialist who treated Sinnett at Swedish, testified that,
    if Sinnett had been brought to the hospital on the 22nd, she would have had a higher
    chance of surviving treatment. Dr. Laura Mosqueda, a specialist in family and geriatric
    medicine, testified that hospitalizing Sinnett sooner would have given her "more of a
    chance to recover" and Sinnett "would have suffered a lot less." The State also elicited
    testimony from multiple doctors that Sinnett's death was not inevitable. For example, Dr.
    Mosqueda testified that Sinnett's condition improved after being admitted to the hospital
    and that Sinnett showed an interest in food, suggesting that she was not in the active
    dying phase of her life. Dr. Mosqueda further stated that she believed that Sinnett "was
    severely neglected, and it led to her death." In the face of this strong evidence, Morgan
    has not established a substantial likelihood that the prosecutor's comment affected the
    jury's verdict.
    This conclusion is further supported by the comment's context. The timing of a
    prosecutor's remark is relevant to its prejudicial value, as statements at the end of
    argument are more likelyto cause prejudice. State v. Lindsay. 
    180 Wash. 2d 423
    , 443, 
    326 P.3d 125
    (2014). Here, the prosecutor's comment was a brief, isolated statement in the
    middle of her closing argument.      And, directly before and after the comment, the
    prosecutor referred to the facts in evidence.
    No. 71109-1-1/7
    Morgan has not demonstrated that she was prejudiced by the trial court's refusal
    to strike or instruct on the prosecutor's isolated comment. We deny her request for a new
    trial.
    II. Statement of Additional Grounds
    Morgan raises two issues in her statement of additional grounds. First, she argues
    that the trial court erred in excluding Daniels's testimony. But, the court did not prevent
    Daniels from testifying. Morgan did not call her as a witness.
    Morgan further argues that she was not read her Miranda1 rights. As support, she
    cites to only the testimony of Detective Michael Gordon, who investigated Sinnett's death.
    But, Detective Gordon did not testify about Morgan's arrest.         Nor is there relevant
    evidence elsewhere in the record. We cannot review Morgan's challenge. See RAP
    10.10(c) (an appellate court will not consider an argument made in a statement of
    additional grounds for review if it does not inform the court of the nature and occurrence
    of the alleged errors); State v. Alvarado, 
    164 Wash. 2d 556
    , 559, 
    192 P.3d 345
    (2008). If
    there are material facts that were not presented and heard, Morgan's recourse is to bring
    a properly supported personal restraint petition. See RAP 16.4.
    We affirm.
    WE CONCUR:
    d~Ssf                                ^Tr\oK^i t
    Miranda v. Arizona, 
    384 U.S. 436
    , 
    86 S. Ct. 1602
    , 
    16 L. Ed. 2d 694
    (1966).