State of Washington v. Kelli Anne Jacobsen ( 2018 )

FILED
APRIL 12, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 33743-0-III
Respondent, )
)
v. )
)
KELLI ANNE JACOBSEN, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. — Kelli Anne Jacobsen appeals from her conviction for second
degree manslaughter of one-year-old R.M., a child for whom she was caring. We affirm
the conviction, but reverse some of the legal financial obligations (LFOs).
FACTS
Tawney Johnson, R.M.’s mother, initially hired Ms. Jacobsen to provide daycare
for R.M. when she returned to work. Eventually, Ms. Jacobsen became a live-in nanny
for the child. The two women communicated regularly during the work day about R.M.
via text messaging.
On his first birthday, his mother noticed that R.M. was in a fussy mood. That
mood carried over to the next morning and was also observed by Amy Graves, a friend of
Ms. Jacobsen who frequently visited at Ms. Johnson’s home. Ms. Johnson came home
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State v. Jacobsen
later that morning to use her personal computer before returning to work shortly before
noon. R.M. appeared to be happy and playful at that time.
Shortly after noon, Ms. Jacobsen called 911, reporting that R.M. was unresponsive.
An ambulance was dispatched at 12:14 p.m. A neighbor, Danielle Sundwall, arrived at
the home first and asked where R.M. was. Ms. Jacobsen, who appeared motionless with a
blank face, handed the child to Sundwall, who observed that R.M. was breathing hard and
that his eyes had rolled back into his head. Paramedic Steve Waite arrived and took the
child to the ambulance. Ms. Jacobsen sat in front with Waite while he drove the vehicle to
the hospital.
Waite asked Jacobsen what had happened. When Jacobsen reported that the child
had been pushing a toy and fallen over, Waite was skeptical. He asked her “what really
happened.” Ms. Jacobsen replied that R.M. had stood on the toy, about six inches off the
ground, and fallen from it.
Emergency room staff at Kadlec Hospital treated the child. A CT scan revealed
severe bleeding in R.M.’s brain and the presence of a subdural hematoma. Ms. Jacobsen
told an emergency room doctor that R.M. had fallen while climbing on a toy. The child
died while undergoing emergency brain surgery.
A forensic pathologist, Dr. Daniel Selove, testified concerning autopsy results.
The autopsies revealed that R.M. had suffered two fractures of his left arm and one of his
left leg. The leg and one of the arm fractures were between two and four weeks old,
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while the other arm fracture was two weeks old. These injuries suggested to Dr. Selove
that the child may have been violently shaken.
The prosecutor filed a charge of first degree manslaughter against Ms. Jacobsen,
who was represented by appointed attorney Scott Johnson. Anticipating that Ms.
Jacobsen would argue that the death resulted from an accident, the State sought to admit
Dr. Selove’s testimony about the prior injuries. The defense sought to exclude the
evidence under ER 404(b). The court declined to exclude the evidence. The case
ultimately went to trial, with the defense putting forth the theory that Ms. Johnson caused
the child’s injuries. The jury deliberated for four days, but a mistrial was eventually
declared because of deadlock.
The case was retried two years later. In 2014, Shane Silverthorn had replaced Mr.
Johnson as counsel for Ms. Jacobsen. By the time he stepped down, Mr. Johnson had
invoiced the county in excess of $100,000 for the defense of Ms. Jacobsen. The case was
retried to a jury before the original trial judge.
In opening statement, Mr. Silverthorn told jurors that R.M. had suffered medical
issues over the year and that “some of the remedial measures that were used to aid in
those difficulties led to fussiness and the like.” Report of Proceedings (RP) at 254. The
State then sought to introduce the text messages, which had not been used in the first
trial, to dispute this argument. Defense counsel stated that he wanted to “make a 404(b)
record,” although that was never done. The parties were directed to review the messages
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together in order to cull out irrelevant messages from those that were relevant. After a
recess, the parties presented a series of exhibits; the defense stipulated to the admission
“in their redacted format.” RP at 647-648.
The State presented testimony from several of the health care workers who
attended to R.M. They uniformly testified that, in their experience, subdural hematomas
in infants did not result from a minor fall; more serious impact was required. When Mr.
Waite testified that he disbelieved Ms. Jacobsen’s statement that the injury occurred from
the child falling, defense counsel objected that the response constituted a comment on
witness credibility. The court allowed the testimony to stand because it was a comment
on the credibility of Ms. Jacobsen’s statement rather than a comment about her personal
credibility. Dr. Selove testified, without objection, that R.M. had suffered a
“nonaccidental injury” resulting from “what another person is doing to” him. RP at 752.
Unlike the first trial, the defense called only two witnesses to testify about their
observations of Ms. Jacobsen’s emotional response to R.M.’s injury. Ms. Jacobsen did
not testify at either trial. In closing argument, the State argued that Ms. Jacobsen’s story
about a fall was inconsistent with the number of bruises found on the child. The defense
argued that Ms. Johnson also had access to R.M. and it was impossible to determine who
was responsible for the child’s injuries.
The jury returned a verdict of guilty on the included offense of second degree
manslaughter and also found the presence of two aggravating factors. The court
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sentenced Ms. Jacobsen to an exceptional sentence of 54 months in prison and imposed a
total of $121,569.95 in total LFOs. More than $115,000.00 of that figure reflected
discretionary costs for court appointed attorneys and experts used in the first trial.
Ms. Jacobsen timely appealed to this court. A panel heard oral argument on the
case.
ANALYSIS
This appeal presents three primary issues, although all of them involve multiple
theories of error. We address first Ms. Jacobsen’s contention that her counsel provided
ineffective assistance. We then turn to her contention that the trial judge erred with
respect to jury instructions, a purported ER 404(b) ruling, and in improperly imposing the
discretionary LFOs. Finally, we consider Ms. Jacobsen’s claim of prosecutorial
misconduct. Since we do not find multiple trial errors, we do not separately address her
contention of cumulative error.
Ineffective Assistance of Counsel
Ms. Jacobsen contends that attorney Silverthorn rendered ineffective assistance by
failing to raise objections to two pieces of evidence and in failing to seek an instruction.
She does not meet her heavy burden of establishing error.
The standards governing ineffective assistance of counsel claims are well
understood. An attorney’s failure to perform to the standards of the profession will require
a new trial when the client has been prejudiced by counsel’s failure. State v. McFarland,
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127 Wash. 2d 322, 334-335, 899 P.2d 1251 (1995). Courts must be highly deferential to
counsel’s decisions when evaluating ineffectiveness claims. A strategic or tactical decision
is not a basis for finding error. Strickland v. Washington, 466 U.S. 668, 689-691, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984). Under Strickland, courts evaluate counsel’s
performance using a two-prong test that requires determination whether or not (1) counsel’s
performance failed to meet a standard of reasonableness and (2) actual prejudice resulted
from counsel’s failures. Id. at 690-692. When a claim fails one prong, a reviewing court
need not consider both Strickland prongs. Id. at 697; State v. Foster, 140 Wash. App. 266,
273, 166 P.3d 726 (2007).
When a claim is not presented to the trial court, an appellate court will only
consider it on appeal if the issue is one of manifest constitutional error. RAP 2.5(a)(3).
Among its other necessary features, an error is only “manifest” if the necessary facts are
sufficiently developed in the record to allow the appellate court to adjudicate the claim.
McFarland, 127 Wn.2d at 333. If the factual record is insufficient, an appellant cannot
establish that he or she was actually prejudiced. Id.
Several of the claims Ms. Jacobsen makes here overlap with claims of judicial
error, resulting in either marginal or no discussion of the claim when dealing with one or
the other category. The first of the ineffective assistance claims is one that overlaps with a
claim of judicial error. Specifically, she argues that her counsel erred in failing to renew a
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motion to exclude the text messages1 under an ER 404(b) theory. This contention fails for
several reasons.
First, counsel stipulated to the admission of the text messages after the parties had
removed irrelevant messages. On this record, we cannot tell if any of the ER 404(b)
concerns that motivated the initial objection still existed after the redactions had been made.
Second, the stipulation appears to be a strategic decision of counsel that is beyond review
under Strickland. The defense used the text messages to support its theory of the case in
closing argument. Third, the invited error doctrine would also act as a bar to this argument.
E.g., State v. Studd, 137 Wash. 2d 533, 545-549, 973 P.2d 1049 (1999). For all of these
reasons, Ms. Jacobsen cannot show that her counsel erred in his handling of this issue.
Ms. Jacobsen next claims her counsel should have raised a foundation objection to
testimony by Gabriel Simms, a registered nurse. Simms testified that a fall from a toy six
to twelve inches high could not have caused the fatal head injury suffered by R.M. For
two reasons, this claim of ineffective assistance fails. First, there is no showing that
counsel erred by failing to object. Mr. Simms did testify to his educational background
and experience. This arguably sufficed to set a foundation for the testimony. ER 702. If
1
Ms. Jacobsen’s counsel confirmed at oral argument that this claim is focused
solely on the admission of the text messages and does not include Dr. Selove’s testimony
concerning injuries found during the child’s autopsy.
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there was something lacking in the foundation, a timely objection may have done little
more than give the nurse an opportunity to explain in detail his background and his
training as it related to this piece of testimony. In short, Ms. Jacobsen cannot show error
on this record. Moreover, even if there had been error, the record does reflect she could
not show prejudice. Three different medical doctors expressed the same opinions, both
before and after Mr. Simms testified. RP at 377, 411-413, 639-642. Dr. Kevin Marsh
was quite blunt in testifying that the allegation of a fall “does not match the injury.” RP
at 641. At worst, Mr. Simms’ testimony was cumulative to the unchallenged testimony
of the three doctors who all reached the same conclusion.
Ms. Jacobsen’s final2 contention is that her counsel should have proposed an
instruction based on WPIC 25.02 concerning proximate cause. 11 WASHINGTON
PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 25.02, at 375 (4th ed.
2016) (WPIC). Since the instruction would not have aided the defense, there was no error.
In part, WPIC 25.02 explains that the defendant’s actions must be a proximate
cause of death, and further defines the term as meaning “a cause which, in a direct
sequence, unbroken by any new independent cause, produces the death, and without
which the death would not have happened.” Id. There may be multiple proximate
2
She also argues that counsel should have challenged the LFO ruling. We do not
address that claim since we grant relief on that issue for a different reason.
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causes. Id. In the context of a criminal case, the term “proximate cause” is equated with
“cause in fact.” State v. Dennison, 115 Wash. 2d 609, 624, 801 P.2d 193 (1990).
There was no need for this instruction. The jury was already instructed that
manslaughter occurs when a defendant causes the death of another in either a reckless or
negligent manner. Clerk’s Papers (CP) at 253, 255. The WPIC 25.02 instruction might
have been useful if there had been evidence of some other action that might have caused
the death (e.g., injuries suffered in a car accident) in addition to the defendant’s alleged
actions, but there was no such evidence in this case. If there were multiple potential
causes of death, then the instruction might have been helpful to the defense, although it
might not have been.3
Here, since Ms. Jacobsen denied doing anything to R.M. and could not point to
any other injury that could have caused the death, there was no reason to pursue this
instruction.4 Having shown no basis for the instruction, she cannot establish that her
counsel erred by not proposing the instruction.
3
The instruction’s warning that there might be multiple proximate causes is one
that the prosecution might desire to use when appropriate. Since that aspect of the
instruction actually cuts against the defendant, who typically is seeking to argue the other
action as cause of death, it is unlikely that the defense will very often want this
instruction in a criminal case.
4
All of the medical experts rejected the fall from a toy theory and there simply
was no medical evidence pointing to another possible basis for R.M.’s death. If there had
been expert testimony suggesting that as a possible cause, then there would have been a
factual basis for seeking the instruction, although the wisdom of such a course might be
open to question.
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Ms. Jacobsen has not met her burden of showing that her counsel erred, causing
her substantial prejudice. The ineffective assistance claim is without merit.
Judicial Error
Ms. Jacobsen also alternatively contends, repeating several arguments that we
have rejected, that the trial court erred in several of its rulings. With the exception of one
point conceded by the prosecutor, we disagree.
Ms. Jacobsen initially contends that jury instructions 9, 12, and 15 constitute
comments on the evidence in violation of art. IV, § 16 of the Washington Constitution:
“Judges shall not charge juries with respect to matters of fact, nor comment thereon, but
shall declare the law.” WASH. CONST. art. IV, § 16. This provision “prohibits a judge
from conveying to the jury his or her personal attitudes toward the merits of the case.”
State v. Becker, 132 Wash. 2d 54, 64, 935 P.2d 1321 (1997). The purpose of this provision
“is to prevent the jury from being unduly influenced by the court’s opinion regarding the
credibility, weight, or sufficiency of the evidence.” State v. Sivins, 138 Wash. App. 52, 58,
155 P.3d 982 (2007) (citing State v. Eisner, 95 Wash. 2d 458, 462, 626 P.2d 10 (1981)). “A
statement by the court constitutes a comment on the evidence if the court’s attitude
toward the merits of the case or the court’s evaluation relative to the disputed issue is
inferable from the statement.” State v. Lane, 125 Wash. 2d 825, 838, 889 P.2d 929 (1995).
Thus, a jury instruction which removes a factual matter from the jury constitutes a
comment on the evidence in violation of this section. Becker, 132 Wn.2d at 64-65. In
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determining whether a statement by the court amounts to a comment on the evidence, a
reviewing court looks to the facts and circumstances of the case. State v. Jacobsen, 78
Wash. 2d 491, 495, 477 P.2d 1 (1970).
This challenge focuses on two different types of instructions. Jury Instructions 12
and 15 are the elements instructions for the charges of manslaughter 1 and manslaughter
2. CP at 254, 257. Jury Instruction 9 told the jury that it could only consider evidence of
prior assaults for limited purposes. CP at 251. In each instance, the instruction specified
the activities at which the instruction was directed: “prior assaults” against R.M.
(Instruction 9), and “Inflicted trauma or injury to [R.M.’s] head” (Instructions 12, 15).
CP at 251, 254, 257. Ms. Jacobsen argues that these references, individually and when
read together, constitute a judicial comment on the evidence. We disagree.
It is difficult to conceive of how a limiting instruction might work if it did not
identify the evidence which is to be given limited consideration. The language of
Instruction 9 also did not lend itself to the defendant’s construction; it simply says evidence
of “prior assaults against [R.M.]” was to be considered only for several specified purposes.
CP at 251. The instruction did not identify Ms. Jacobsen as the child’s assailant.
Similarly, the elements instructions do not support Ms. Jacobsen’s argument. For
instance, on the second degree manslaughter charge, the jury was told that the State was
required to prove (in part) that “the defendant engaged in conduct of criminal negligence,
to-wit: Inflicted trauma or injury to [R.M.’s] head.” CP at 257. On its face, this language
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simply tells what specific actions the State had to prove. It does not suggest the judge’s
view that Ms. Jacobsen had, in fact, inflicted trauma or injury to the child’s head.5 The
instruction does equate criminal negligence with a head injury, but it does not state that
Ms. Jacobsen had committed criminal negligence or inflicted the head trauma. Again, the
elements instructions simply recited what the State was required to prove. Nothing more.
The challenged instructions did not convey the judge’s personal opinion about the
evidence in the case. They did not violate art. IV, § 16 of the Washington Constitution.
The defendant next contends that the trial court erred in allowing the text message
into evidence, allegedly in violation of ER 404(b). For the reasons stated previously, this
argument fails. The parties stipulated to the admission of the evidence. This claim of
error is thus not preserved. E.g., State v. Guloy, 104 Wash. 2d 412, 421, 705 P.2d
1182 (1985) (evidentiary issue argument on appeal must be based on same objection
presented to the trial court). Given that the trial court rejected the original motion on the
basis that the litany of the child’s illnesses and injuries did not constitute bad acts, but
was merely evidence relevant to show the child’s health condition, the reason why Ms.
Jacobsen thought the texts constituted her own bad acts needed to be developed in the
5
The cases in which jury instructions have constituted comments on the evidence
involved situations where inept wording resolved a disputed factual question. E.g., State
v. Jackman, 156 Wash. 2d 736, 132 P.3d 136 (2006) (inclusion of child’s birthdate in
element commented on evidence because it resolved element that child was a minor);
Becker, 132 Wn.2d at 63-65 (verdict form that identified an alleged school as an actual
school was comment on evidence since it resolved disputed question of fact).
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record. It was not. Moreover, as noted earlier, any error also was invited due to the
stipulation. For these reasons, this claim is not properly preserved for appeal.
Ms. Jacobsen also claims that the court erred in failing to give a proximate cause
instruction based on WPIC 25.02. This argument fails for a couple of reasons. Trial
courts have an obligation to provide instructions that correctly state the law, are not
misleading, and allow the parties to argue their respective theories of the case. State v. Dana,
73 Wash. 2d 533, 536-537, 439 P.2d 403 (1968). Moreover, the failure to request an
instruction, or to challenge the trial court’s failure to give a requested instruction, waives
the issue on appeal. State v. Scott, 110 Wash. 2d 682, 686, 757 P.2d 492 (1988); RAP 2.5(a).
As noted previously, the instruction was not necessary under these standards
because the instructions presented allowed both parties to adequately argue their
respective cases. The issue also was not preserved. Scott, 110 Wn.2d at 686. Finally,
unlike some of their counterparts, Washington judges are not permitted sua sponte to give
jury instructions. E.g., State v. Wilcoxon, 185 Wash. App. 534, 542-543, 341 P.3d 1019(2015) (no obligation to give limiting instruction not requested by party), aff’d, 185
Wash. 2d 324, 373 P.3d 224 (2016). The trial court simply did not err in failing to give an
instruction that the parties never asked it to give.
Finally, Ms. Jacobsen argues that the trial court erred in imposing discretionary
LFOs without an adequate inquiry into her ability to pay. When questioned at oral
argument, the prosecutor indicated he would not contest the issue. We agree that the
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discretionary LFOs are excessive in light of Ms. Jacobsen’s earning capacity and were
imposed without adequate inquiry. We reverse the discretionary LFOs imposed by the
trial court. The mandatory LFOs, totaling $800, and the restitution award, are affirmed.
With the exception of the LFO issue, the challenges to the trial court’s decisions
are without merit.
Prosecutorial Misconduct Allegations
Ms. Jacobsen also contends that the prosecutor engaged in misconduct through trial
and closing argument. Although there is one issue of concern, the allegations lack merit.
The standards governing this challenge are well settled. The appellant bears the
burden of demonstrating prosecutorial misconduct on appeal and must establish that the
conduct was both improper and prejudicial. State v. Stenson, 132 Wash. 2d 668, 718, 940
P.2d 1239 (1997). Prejudice occurs where there is a substantial likelihood that the
misconduct affected the jury’s verdict. Id. at 718-719. The allegedly improper
statements should be viewed within the context of the prosecutor’s entire argument, the
issues in the case, the evidence discussed in the argument, and the jury instructions. State
v. Brown, 132 Wash. 2d 529, 561, 940 P.2d 546 (1997).
Prosecutors can properly draw reasonable inferences from the evidence admitted
at trial and argue those inferences to the jury. State v. Hoffman, 116 Wash. 2d 51, 94-95,
804 P.2d 577 (1991); State v. Hale, 26 Wash. App. 211, 216, 611 P.2d 1370 (1980). The
prosecutor also can respond to the defense presentation and argue that the evidence does
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not support the defendant’s theory of the case. State v. Russell, 125 Wash. 2d 24, 87, 882
P.2d 747 (1994). “Mere appeals to jury passion and prejudice, as well as prejudicial
allusions to matters outside the evidence, are inappropriate.” State v. Belgarde, 110
Wash. 2d 504, 507, 755 P.2d 174 (1988). It also is improper for a prosecutor to tell the jury
that its verdict will reflect on society in general or send a message to others. State v.
Powell, 62 Wash. App. 914, 918, 816 P.2d 86 (1991). However, the defendant must object
to the prosecutor’s allegedly improper argument in order to preserve a claim of error
unless the argument was so “flagrant and ill intentioned that no curative instructions
could have obviated the prejudice.” Belgarde, 110 Wn.2d at 507.
Against this backdrop, we turn to Ms. Jacobsen’s allegations of misconduct. In
general terms, she alleges that the prosecutor endeared himself to witnesses, had three
witnesses “embellish” their testimony from that given in the first trial, placed the prestige
of his office “into the evidentiary mix,” commented on witness credibility, and argued
that justice needed to be done for R.M. See Br. of Appellant at 3-4. Several of these
claims were waived by defendant’s failure to object at trial.
For instance, the claim that some of the witnesses testified more expansively at the
second trial than at the first could easily have been tested by cross-examination. The
defense also did not object, so if there was any error, it was waived. The defense also did
not object to questions or comments that allegedly “endeared” the prosecutor to the jury
or put his office’s credibility before the jury. These claims were waived as well. Also
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waived is the claim that the prosecutor vouched for his own credibility in cross-
examining defense witness Amy Graves. These unchallenged questions were in response
to direct examination that suggested Ms. Graves had been bullied by the prosecutor.
Once again, objections could easily have cured any error.
The defense did object to the question of paramedic Steve Waite who asked Ms.
Jacobsen “what really happened” in response to her story of R.M. falling with a toy. The
trial court permitted the question since it went to the credibility of the explanation instead
of Ms. Jacobsen’s credibility. Waite’s explanation demonstrated his good faith in making
the statement and since Ms. Jacobsen did not testify, there could be no danger of
commenting on her credibility. This episode did not amount to misconduct.
Ms. Jacobsen next contends that the prosecutor committed misconduct in his
examination of Dr. Shawn Jones and Dr. Daniel Selove about pretrial meetings with the
two men. In the case of Dr. Jones, the defense had asked Dr. Jones about his pre-trial
interviews and he had given an answer favorable to Ms. Jacobsen about how long it
would take before a subdural hematoma causes death in an infant. In redirect
examination, Dr. Jones had also said his expertise was not in this area, and that “if I could
go back and do that again, I would have said . . . I don’t think I should answer that.” RP
at 414. Therefore, when the prosecutor said, “you and I actually discussed that when we
met a couple weeks ago. . . . we agreed and decided I would not even ask you that
question; is that correct? . . . . Did I keep my word?” RP at 414-415. Ms. Jacobsen did
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not object to this question and therefore waived any error. Furthermore, the question was
within the scope of cross. There was no misconduct.
Dr. Selove was cross-examined by Ms. Jacobsen concerning his meetings with
detectives and receipt of police reports while he was attempting to determine how much
time had elapsed between R.M.’s injuries and his death. Believing these efforts were
aimed at painting Dr. Selove as someone who had based his opinion solely on
information provided by the prosecution, the prosecutor on redirect asked questions about
a pretrial meeting between Dr. Selove and investigators. He phrased his questions: “was
the tone of the question, . . . ‘we want more information?’ Or was the tone . . . ‘we want
your opinion to be this because this fits our theory of the case?’” RP at 805-806. Ms.
Jacobsen objected but was overruled. Ms. Jacobsen then asked Dr. Selove very similar
questions on re-cross that targeted his responses to the information provided to him by
police, and included the fact that Dr. Selove was a professional expert and has testified in
20 to 30 trials over the course of his career. RP at 807-809. There was no error. The
direct examination invited the State’s response, and the opportunity for re-cross also
neutralized any concerns about the questioning.
Ms. Jacobsen’s remaining challenges involve the prosecutor’s closing argument.
First, she contends the prosecutor offered a personal opinion about Ms. Graves’
credibility:
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I want to talk a little bit about Amy Graves. If there was ever a
contest for the most changes in a statement and testimony, Amy Graves
would be a good candidate to win the national competition. I’m not gonna
go through all of the contradictions and changes in Amy Graves’ testimony,
but . . . [he proceeds to review some contradictions and changes in Ms.
Graves’ testimony]
....
Four years later, her memory is better—and coincidentally,
somewhat favorable to her best friend’s defense.
RP at 1363-1364. After suggesting that Ms. Graves forgot that she took an oath to tell
the truth, the prosecutor then concluded:
But to be honest with you, the testimony from Amy Graves isn’t
really all that important because you could actually believe everything Amy
Graves testifies to and you still are gonna be left with the undisputed
medical evidence of the circumstances of [R.M’s] death.
RP at 1368.
It is doubtful there is any error at all here since the comments were directly tied to
her testimony. Nonetheless, the defense did not object, so the claim again is waived.
Finally, Ms. Jacobsen challenges the prosecutor’s closing remarks:
[R.M.] needs justice. Our community needs justice. We need a finding of
truth. We need a finding of justice.
And in this case, that is that the defendant is guilty and that she’s
guilty of Manslaughter in the First Degree.
RP at 1379.
This statement is problematic despite the fact that the defense did not object.
Telling the jury to find the “truth” is likely error. State v. Lindsay, 180 Wash. 2d 423, 437,
326 P.3d 125 (2014). Nonetheless, we are convinced that any error was harmless beyond
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a reasonable doubt. The jury convicted Ms. Jacobsen only of second degree
manslaughter and did not heed the prosecutor's argument that justice required a finding
of first degree manslaughter. Even if considered an improper appeal to emotion, the
effort failed and did not prejudice Ms. Jacobsen.
Ms. Jacobsen has not demonstrated that any prosecutorial misconduct requires a
new trial.
The conviction is affirmed. The case is remanded to strike the discretionary LFOs
in accordance with this opinion.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Lawrence-Berre , C.J.
Pennell, J.
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