Opinion
No. 58907-5-I.
November 5, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-1-05020-5, Laura C. Inveen, J., entered September 11, 2006.
Affirmed by unpublished opinion per Ellington, J., concurred in by Coleman and Grosse, JJ.
John Courtright appeals his conviction for intimidating a witness. Finding sufficient evidence to convict him of that charge and none to support his claim of prosecutorial misconduct, we affirm.
BACKGROUND
In July 2004, Courtright initiated a relationship with 14-year-old K.M. over the internet. He was 22 years old. Through email and online chat sessions, Courtright convinced K.M. to meet him in person shortly after she turned 15. On their second meeting and frequently thereafter, the two had sex. Despite growing reservations and a temporary protection order obtained by K.M.'s mother, K.M. continued the relationship for several months.
In February, K.M. was contacted by S.H., another teenage girl who told her that Courtright was seeing her, as well as several other girls. When K.M. and S.H. attempted to confront Courtright about his infidelity, S.H. threatened to have Courtright thrown in jail.
K.M. met Courtright for the last time on February 28, 2005. The two had been arguing about their relationship online, and K.M. agreed to meet Courtright at a nearby middle school to talk in his car.
When K.M. got into the car, Courtright locked the doors and drove off over her protests. Courtright was angry because he thought K.M. would report their relationship to the police. While they were on the freeway, K.M. attempted to call someone and Courtright grabbed her cell phone and threw it from the vehicle. He punched K.M.'s face, head, and leg and shoved her head into the window. He then warned her, "if [she] told the police, that he would find [her] and kill [her], and that he's killed people before." Report of Proceedings (RP) (July 5, 2006) at 126. K.M. believed Courtright. She felt threatened and worried that she "might get more hurt than [she] was." Id. at 129. When Courtright eventually dropped K.M. off several miles from her home, she ran to a nearby business and asked people there to call the police.
The State charged Courtright with three counts of rape of a child in the third degree, one count of intimidating a witness, and one count of tampering with a witness. The jury convicted Courtright on all counts.
DISCUSSION
Courtright contends the evidence was insufficient to support his conviction for intimidating a witness. Specifically, Courtright argues there was not sufficient evidence to prove he threatened to cause "immediate" harm to K.M. We disagree.
The test for determining the sufficiency of the evidence is whether, after viewing all evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Bencivenga, 137 Wn.2d 703, 706, 974 P.2d 832 (1999). "When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
To convict Courtright of intimidating a witness, the jury had to find that he "by use of a threat against a current or prospective witness, attempts to. . . . induce that person not to report the information relevant to a criminal investigation." RCW 9A.72.110(1). The jury was instructed that threat "means to communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time." Clerk's Papers at 52.
Courtright argues the State failed to prove he intended "immediately" to use force against K.M. because Courtright merely told her that he "would" kill her in the future if she reported their relationship to the police. The argument is without merit. K.M. testified that Courtright's threat came after he had already struck her several times, kept her in his car against her will, and destroyed her cell phone when she tried to make a call. In this context, a rational trier of fact could find that Courtright communicated "the intent immediately to use force."
Courtright also argues the prosecutor's statements denied him a fair trial. In closing argument, the prosecutor told the jury:
And this is my perspective. You can completely disregard it if you don't agree. Is there a little part of you that believes the reason he is focusing on these girls who are black is that there is a hope that maybe society just doesn't care? We will view it as less of a crime. And I would suggest to you, I hope, that that is not even close to true. Because I think it shows an even more concerning aspect of Mr. Courtright's personality.
RP (July 13, 2006) at 685.
Courtright argues this remark inappropriately appealed to the passion or prejudice of the jury and introduced facts not in evidence. He contends the comments portrayed K.M. "not only as a victim of rape, but as a victim of racial prejudice" whose testimony the jury would instinctively credit. Appellant's Brief at 13.
Courtright did not object to the argument. Failure to object waives any error unless the remark is so flagrant and ill-intentioned as to cause an enduring prejudice that could not have been neutralized with a curative instruction. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994). While the prosecutor's comment does not seem particularly useful, especially since she had earlier advised the jury that the defendant's motives were immaterial, a curative instruction would have mitigated its effect.
Further, the prosecutor's remarks must be viewed in the context of the total argument, 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). The remark was part of a lengthy argument. The evidence was that Courtright told K.M. he dated only "black girls." The prosecutor suggested a motive for that.
But as the prosecutor also said, motive was irrelevant. It does not appear at all likely, however, that any prejudice could have resulted from the remark. The jury had been properly instructed that counsel's arguments were not in evidence, and that it must not decide the case on sympathy, prejudice, or personal preference. Both counsel emphasized this instruction in their arguments. We see no substantial likelihood that the argument affected the verdict. See State v. Lord, 117 Wn.2d 829, 887, 822 P.2d 177 (1991) (conviction will stand absent "substantial likelihood that the alleged prosecutorial misconduct affected the verdict"). Affirmed.