Opinion
No. 58717-0-I (linked with No. 60082-6-I)
Filed: May 12, 2008
ORDER PUBLISHING OPINION IN PART
The respondent, State of Washington having filed its motion to publish opinion in part pages 1 to 9 and appellant having filed his response to the motion to publish herein, and a panel of the court having reconsidered its prior determination not to publish the opinion filed for the above entitled matter on March 10, 2008, and finding that it is of precedential value and should be published in part.
Now, therefore, it is hereby
ORDERED that the written opinion filed March 10, 2008, shall be published in part pages 1 to 9 and printed in the Washington Appellate Reports.
UNPUBLISHED OPINION
A person commits stalking by intentionally and repeatedly harassing or following another person. RCW 9A.46.110. The stalking statute defines repeatedly as "on two or more separate occasions." RCW 9A.46.110(6)(e). Kintz argues that multiple encounters with an individual over a very short period of time are not encounters on separate occasions. Kintz also appeals joinder of the two charges, the admission of Evidence Rule (ER) 404(b) evidence and the constitutionality of his sentence. We affirm.
Facts
Theresa Westfall was walking in Lake Padden Park with her three children and two dogs on December 21, 2005. As they were leaving the park on foot, she noticed a person parking a white van "that looked out of context . . . because most people at the lake are either walking their dogs or jogging, and this person was smoking a cigarette and sort of parking a van." The driver said something to Westfall as she walked by, but she didn't understand him. Westfall thought he said something with the word "parking" in it, so she speculated that he thought her car was nearby and that he was repositioning his van so he would not block her car. She did not see the driver, and also made a point of not looking at him. Westfall's car was not nearby, so she just ignored the driver and kept walking with her children and dogs.
The group walked down a trail that then emerges onto a road. When they came out onto the road, the van came up behind them driving very slowly. The van drove next to them at a walking pace and eventually drove past them, out of eyesight. The van soon came from behind again and drove slowly past Westfall and her children, pulled into the trailer court parking lot, and turned around and drove toward them. By Westfall's count, the van drove past them at least five times. Eventually, the white van pulled up behind the group, drove past and then sat at the stop sign where they had to cross the street. There was little traffic, and according to Westfall, "he was obviously waiting for something, and I felt like he was following me, and I didn't want him to follow me home." After crossing the street, she stopped to call 911 and reported that a white van had been following her in the park. The operator told her to stay where she was and that an officer was in the area and would try to apprehend the person.
A police officer stopped a white van approximately five minutes after this report and within a mile of Westfall's location. Kintz was the driver. The officer advised Kintz that two women had called and said his behavior had scared them. Kintz responded that he was lost and looking for a friend's house. He also stated that he and his wife had argued so he had come to the park to hang out. The police informed Kintz they would document the events and that he needed to leave and stay away from the park because he was scaring people.
On January 28, 2006, Jennifer Gudaz jogged on the narrow road around Lake Sammish. She ran north in the southbound lane so that she could see oncoming traffic. She noticed a white van that drove past her, going south. Soon after, the van came from behind her and stopped next to her in the northbound lane. The driver of the van then asked her for directions to an address. Gudaz told him that she did not know the address and resumed jogging. Shortly after, she saw the same van sitting in the driveway of one of the nearby homes. Gudaz thought that the driver was a repairman who had finally found the correct house. But, he soon came up behind her, passed, and stopped a little ahead of her in the northbound lane. Once again, the driver asked for directions, but this time he did not provide an address or seem to know where he wanted to go. He merely said "[g]et me out of here." The driver tried to hand Gudaz a clipboard out the window and wanted her to draw a map. Gudaz became frustrated because the driver did not know if he wanted to go north or south on the highway. She drew a rough map showing the route to the highway and then continued her jog. The white van drove away, out of sight.
Gudaz then saw the van a fourth time, sitting by the side of the road. The van pulled into the oncoming traffic lane next to her, facing the wrong way. The driver asked Gudaz if she needed a ride or needed money. Gudaz responded that she did not need a ride or money and ran away. When Gudaz lost sight of the van, she ran down a road toward the lake and hid between a fence and a shed. She estimates that she hid for about 10 to 15 minutes before she saw three bicyclists stopped on the road. She ran up to the bicyclists and asked for help. She was scared and crying. The bicyclists walked with Gudaz toward the county park where one of them had a cell phone in her car. As they walked toward the park, they saw the white van drive slowly over a bridge and then speed up when the driver saw Gudaz and the bikers. The van drove quickly past the small group, so they all concentrated on remembering the license plate number. When they reached the park, Gudaz called the police and reported the encounters and license plate number. The white van was registered to Kintz' wife, Mary Kintz.
Based on these facts, the State charged Kintz with misdemeanor stalking using separate informations, one related to Westfall and one related to Gudaz. The State then moved to join the charges for trial. Despite Kintz' objection, the trial court joined the two counts and tried them together. During the trial, the court allowed two witnesses, Brigid Vonk and Nancy Nelson, to provide evidence of other bad acts as part of the case-in-chief. Another witness, Elizabeth Page, gave similar testimony as rebuttal. Kintz objected to the admission of this evidence of other bad acts under ER 404(b).
Brigid Vonk testified in the case-in-chief about an incident involving a man in a white van who pulled into her driveway and asked her for help finding an address. After she told the driver she did not know the address, he asked her to come with him to find it. She refused and went into her home. Vonk called the police two hours after the incident because she "had a very creepy feeling about the situation." She later identified Kintz in a photo montage.
Nancy Nelson also testified in the case-in-chief that a man driving a white van held a clipboard out the window and asked her to write down directions to an address while she was walking to work at Western Washington University. Nelson began describing and pointing the way to the address, but the driver insisted she write the directions. He kept pushing the clipboard out the window to her. He looked confused and did not listen to her oral directions. Finally, the driver said he would pull over and write down the directions himself. But, he drove away immediately, without stopping to write down the directions Nelson had provided. Nelson called the police and described the incident and driver, because she felt the incident was suspicious and made her uncomfortable. According to Nelson, "I felt very strongly that he wanted more than directions." An investigating officer thought that the description of the driver, van, and incident was similar to another case that had been reported involving Kintz. The officer showed Nelson a photo montage and she identified Kintz.
Finally, the trial court allowed Elizabeth Page to testify on rebuttal about her experience in Lake Padden Park on December 21, 2005. On the same day that Theresa Westfall walked in the park and encountered the white van, Page also saw a white van while she was standing in the parking lot with her dog. The van briefly parked next to her car and then left. As she was putting her dog in her car, the van pulled up behind her so that Page was between the two vehicles, next to the passenger door of the van. The driver waved at her to come around to his side of the car. Instead, Page told him to roll down the window. He gestured "almost aggressively" and repeatedly with his clipboard for her to come around to his window. He asked her where the other lake was — which she felt was an odd question since there is only one lake. Page explained that there were two entrances but there was only one lake. Then she gave him directions to the main entrance. Page got into her car and observed the van leave the lot. The van did not follow her directions but parked in another lot. Page drove past the van as she exited the park and noted the license plate. She waited at the exit of the park for five minutes to see if the van would leave the park. When the van never exited, she called the police because she believed his request for directions was implausible and suspicious.
In response to the evidence presented at trial, Kintz produced an expert witness, Elizabeth Nyblade, who testified that Kintz suffered from cognitive disorders including ADHD (attention deficit hyperactivity disorder). The jury convicted Kintz of both counts of stalking. The trial court sentenced him to 365 days in jail with 90 days suspended sentence for each count.
Discussion
I. Repeatedly Harassed or Repeatedly Followed
The stalking statute reads, in pertinent part, that "A person commits the crime of stalking if, without lawful authority and under circumstances not amounting to a felony attempt of another crime: (a) He or she intentionally and repeatedly harasses or repeatedly follows another person. . . ." RCW 9A.46.110(1)(a). The statute defines repeatedly as "on two or more separate occasions." RCW 9A.46.110(6)(e). Kintz contends the encounters charged do not amount to separate occasions because each charge resulted from multiple contacts over a very short period of time.
According to both Kintz and the State, we should review this claim for sufficiency of the evidence. But, the facts of Kintz' contacts with the women are undisputed — he drove past Westfall and Gudaz several times. The dispute concerns whether these contacts occurred on two or more separate occasions with respect to each victim, or whether they were merely on-going contacts on the same occasion. Whether the evidence is sufficient turns on the legal meaning of separate occasion. Therefore, the initial inquiry is an issue of law, which we review de novo. State v. McCormack, 117 Wn.2d 141, 143, 812 P.2d 483 (1991).
In this portion of his brief, Kintz does not dispute identity as he does in section II below.
Neither the statute nor case law provides a definition of "separate occasions." Undefined terms are given their plain and ordinary meaning unless a contrary legislative intent appears. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 813, 828 P.2d 549 (1992). Webster's Third New International Dictionary 1560 and 2069-70 (1969) defines "occasion" as "a particular occurrence: happening, incident." "Separate" is defined as "set or kept apart," "not shared with another: individual, single," autonomous, independent, distinct and different. Based on these definitions, a "separate occasion" is a distinct, individual, non-continuous occurrence or incident. Thus, if Kintz had several individual incidents with Gudaz and Westfall, his activities meet the plain meaning of "separate occasions."
Given the nature of the stalking in this case — repeated incidents of physical proximity with visual and/or verbal contact — the trial court concluded Kintz' conduct satisfied the "separate occasions" requirement of the statute.
There's time, space between those incidents, not a lot, obviously but time, space. There's a period of time where Mr. Kintz and the alleged victim are not even in the same, in sight of each other, in the same or close proximity. They're separated both physically by sight and over time, and he comes back and makes contact again.
. . . .
[W]e have separate, discrete, levels of contact, separated by periods of time where the parties are not in contact and where the parties are, in fact, physically and visually separated. That constitutes to me the second time and the third time for a repeat under the purposes of the statute.
We agree with the trial court's reasoning. The legislature could have defined separate occasions as separate days or dates or as separated by a minimum time period, but it did not do so. This suggests that the legislature did not intend a stalking charge to hinge on a pre-defined interval of time between incidents.
Here, Kintz repeated his visual and verbal contact with each victim on separate occasions. For each of the charges, Kintz had several discrete encounters with his victims. Gudaz testified that she saw Kintz at least five times. Each time he either drove by her or stopped to talk to her and then drove out of eyesight. These breaks in contact, with time and distance between Kintz and Gudaz, separated the encounters into individual events. Similarly, Westfall saw Kintz in the parking lot and then lost sight of him when she walked down the trial. When she lost sight of Kintz, this particular incident ended. As soon as she emerged onto the road, the white van came up behind her, marking another encounter. These are two, individual encounters. Each contact between Kintz and his victims constitutes a separate occasion.
Therefore, we conclude the trial court did not err in interpreting the repeated contact provision of the statute, or in finding that sufficient evidence supported a conclusion that Kintz had contact with the victims on separate occasions as contemplated by the statute.
II. Proof of Identity for the Westfall Charge
Kintz challenges the sufficiency of the evidence of his identity for the charge relating to the encounters with Theresa Westfall. In a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State, and determine whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Hendrix, 50 Wn. App. 510, 514, 749 P.2d 210 (1988). Determination of identity is a question of fact for the jury. State v. Hill, 83 Wn.2d 558, 560, 520 P.2d 618 (1974). But, "the prosecution bears the burden of establishing beyond a reasonable doubt the identity of the accused as the person who committed the offense." Id. Without corroborating facts or circumstances linking the defendant to the crime, a witness' inability to identify the defendant requires reversal.Hendrix, 50 Wn. App. at 515 (citing United States v. Musquiz, 445 F.2d 963, 965 (5th Cir. 1971); United States v. Johnson, 427 F.2d 957, 961 (5th Cir. 1970)). Kintz contends that the trial court should have directed a verdict for him on the Westfall incidents, because she failed to identify him as the man in the white van.
Elizabeth Page had not testified at this point. Her testimony was not considered.
Kintz fails to acknowledge that even though Westfall could not positively identify him, circumstantial evidence pointed to him as the driver of the van. On issues of sufficiency, circumstantial evidence is not considered any less reliable than direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Westfall called 911 from the park immediately following the fifth time she saw the white van drive by her. The police pulled over a white van within five minutes of Westfall's call and less than a mile from where Westfall had last seen the vehicle. Kintz was the driver. Police informed him that he had been scaring women in the park and he responded that he was lost and also that he had gone to the park to hang out. Kintz admitted his presence in the park to the police.
Given Kintz' admission that he had been in the park, his possession of the white van, and the proximity in time and distance to Westfall's location, a finder of fact had ample circumstantial evidence to determine beyond a reasonable doubt that Kintz was the driver of the white van stalking Westfall. The trial court did not err by refusing the directed verdict.
III. Joinder of the Charges
The State charged Kintz with misdemeanor stalking by separate informations for each victim. The State moved to consolidate the charges for trial. Kintz opposed consolidation arguing that the evidence of the two charges were not cross-admissible under ER 404(b). The trial court granted the motion and consolidated the charges for trial. Offenses properly joined under Criminal Rule (CrR) 4.3 are consolidated for trial unless the court orders severance under CrR 4.4. The question of whether two offenses could have been properly joined under CrR 4.3 is reviewed de novo. State v. Bryant, 89 Wn. App. 857, 864, 950 P.2d 1004 (1998). Determination of whether joinder unduly prejudices the defendant, requiring separate trials, is within the discretion of the trial court and will not be overturned without a showing of manifest abuse of that discretion. State v. Weddel, 29 Wn. App. 461, 464-65, 629 P.2d 912 (1981). Once the court determines charges are amenable to joinder, the trial court considers cross-admissibility of the evidence between the various counts, the jury's ability to compartmentalize the evidence, the trial court's ability to separately instruct the jury on each charge, and the strength of the evidence on each count. State v. MacDonald, 122 Wn. App. 804, 815, 95 P.3d 1248 (2004).
Joinder applies to charging documents under CrR 4.3. Joined offenses are consolidated for trial unless they are severed. CrR 4.3.1(a). Since Kintz was charged under two separate informations and both offenses were tried together, the charges were not joined but were consolidated. Our case law makes no distinction between joinder and consolidation for trial.
Under Washington's permissive joinder rules, two offenses may be joined if the offenses "are of the same or similar character, even if not part of a single scheme or plan." CrR 4.3(a)(1). In this case, the offenses have significant similarities. Both charges involve stalking women on remote roads in parks by repeatedly driving by them in a white van. These parallels clearly yield two offenses "of the same or similar character." See e.g., State v. Weddel, 29 Wn. App. 461, 465, 629 P.2d 912 (1981) (burglary and attempted burglary are offenses "of the same or similar character" so joinder requirements were satisfied); State v. Gatalski, 40 Wn. App. 601, 606, 699 P.2d 804 (1985) (attempted rape and kidnapping proper for joinder because both involved use of force to overcome resistance and had sexual connotations). Because the two stalking charges were "of the same or similar character" they were amenable to joinder. State v. Pleasant, 21 Wn. App. 177, 182, 583 P.2d 680 (1978).
Once joinder is appropriate, the trial court must inquire whether consolidation of the charges in a single trial would be unduly prejudicial. Id. "Where the general requirements for joinder are met and evidence of one crime would be admissible to prove an element of a second crime, joinder of the two crimes usually cannot be prejudicial." Weddel, 29 Wn. App. at 465. Therefore, if evidence from the Gudaz and Westfall incidents would have been cross-admissible in separate trials, the consolidated trial did not improperly prejudice Kintz.
The two series of encounters qualify as other crimes evidence governed by ER 404(b) and are, therefore, cross-admissible. Under ER 404(b), "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show (that he acted) in conformity therewith." But, such crimes are admissible as evidence of motive, intent, knowledge, identity, or absence of mistake or accident. ER 404(b). To admit other crimes evidence, the court must define the applicable exception, determine relevance and balance the probative value against the prejudice of the evidence. State v. Smith, 106 Wn.2d 772, 776, 725 P.2d 951 (1986). The court ruled the Westfall and Gudaz incidents as cross-admissible for both intent and modus operandi. Evidentiary rulings are reviewed for abuse of discretion. State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999) cert. denied, 120 S. Ct. 285 (1999). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
The trial court admitted the evidence both to show intent and modus operandi. We note that case law has narrowed the use of the modus operandi exception to ER 404(b). "The modus operandi `must be so unusual and distinctive as to be like a signature.'" Foxhoven, 161 Wn.2d at 177 (quoting State v. Coe, 101 Wn.2d 772, 777, 684 P.2d 668 (1984). The details of the incidents do not meet the "high degree of similarity" needed for admission as evidence of modus operandi. Coe, 101 Wn.2d at 777. The court erred in concluding that the evidence was admissible to establish modus operandi.
A stalking offense requires proof of intent to harass or follow. Because the defense argued lack of intent, the other bad acts evidence became admissible to prove intent. RCW 9A.46.110. At trial, counsel attempted to show that Kintz did not intend to stalk Gudaz, he merely needed directions. When Gudaz testified that she drew a very rough map and was not very helpful because she wanted to resume her run, defense asked "if you would have drawn this man a map to show him how to get out of there besides just a circle and a straight line, do you think maybe this situation wouldn't have occurred?" During closing, counsel referred to this testimony.
Her map — remember she talked about drawing a map. Her map was a circle, and he said, "How do I get to the freeway?" And she draws a line. That's how you get to the freeway, and she keeps on running. I would submit to you that if Miss Gudaz would have been halfway normal toward Chuck like any of us would have been and answered his questions, get him out of the situation that he was in down there, he would have been gone."
He emphasized that Kintz only wanted directions, and that requesting directions does not amount to a crime. "Constitutionally protected activity, think about that. It means we can drive around and be lost and ask for directions, and that's not a crime. We can talk to people. That's not a crime." Through this line of questions and statements, the defense was clearly trying to show that Kintz did not intend to stalk Gudaz — he was merely asking for directions and needed to keep returning because she did not give him adequate assistance.
On appeal, Kintz contends that the charged offenses do not require evidence of other bad acts to prove intent — the jury can infer intent from the acts themselves. According to Kintz, since he did not testify he could not deny an intention to follow or harass Gudaz or Westfall. Kintz also cites Nyblade's testimony that he told her that he had the ability to form the intent regarding something that is defined as a crime. But, this contention both belies the trial strategy employed by the defense and missed the point. The question for purposes of joinder is whether or not the evidence is cross-admissible not whether it will actually be required or admitted.
Common scheme or plan is the exception "generally used when the occurrence of the crime or intent are at issue." State v. Foxhoven, 161 Wn.2d 168, 179, 163 P.3d 786 (2007). To amount to a common scheme or plan, the other crimes must show "such occurrence of common features that the various acts are naturally to be explained as caused by a general plan of which the charged crime and the prior misconduct are the individual manifestations." State v. Lough, 125 Wn.2d 847, 860, 889 P.2d 487 (1995). The degree of similarity for the admission of evidence of a common scheme or plan must be substantial. State v. DeVincentis, 150 Wn.2d 11, 20, 74 P.3d 119 (2003). But, uniqueness is not required. Id. at 21. The trial court "need only find that the prior bad acts show a pattern or plan with marked similarities to the facts in the case before it." Id. at 13. A common scheme or plan shows intent when "the very doing of the act charged [was] still to be proved." Lough, 125 Wn.2d at 853. The evidence here is sufficient to allow a trier of fact to conclude that a common scheme or plan existed.
Common scheme evidence of similar incidents helps negate the defense that Kintz only wanted directions and lacked intent to harass or follow. The trial court did not abuse its discretion by concluding that the Gudaz and Westfall incidents were cross-admissible to show intent.See Lakewood v. Pierce County, 106 Wn. App. 63, 70, 23 P.3d 1 (2001).
In addition to cross-admissibility, the court must also consider the jury's ability to compartmentalize the evidence from each defense, the ability of the court to instruct the jury to consider the evidence of each crime, and the strength of the State's evidence on each count. State v. Kalakosky, 121 Wn.2d 525, 537, 852 P.2d 1064 (1993). Kintz argues he was embarrassed by the admission of the other offenses and that the jury could cumulate the evidence against him. Kintz provides no evidence to support his bare argument that he would be prejudiced. The incidents were factually distinct enough to allow the jury to compartmentalize them. One victim jogged alone around the lake, while the other walked with her small children and dogs. Kintz repeatedly spoke to Gudaz, but did not have a spoken exchange with Westfall. One could argue that the cumulation of evidence is a risk in any case with joinder of parties or counts. Severence is not necessarily required where the court can clearly instruct the jury.
Kintz does not argue that the court could not properly instruct the jury. The trial court issued separate to-convict instructions for each victim. To highlight that the instructions apply to different incidents, the trial court underlined the date and victim's name in each instruction. In addition, the court explicitly instructed the jury to consider the counts separately. "A separate crime is charged in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count." The jury is presumed to follow the instructions including the instruction to consider only the evidence applicable to each charge.
Kintz also contends that he wanted to testify on one charge but not the other, since he never had verbal contact with Westfall. But, "a defendant's mere desire to testify only to one count is an insufficient reason to require severance." Weddel, 29 Wn. App. at 467. Severance is only required "if the defendant makes a convincing showing to the trial court that he has important testimony to give concerning one count and a strong need to refrain from testifying about the other." Id. at 468. In pre-trial motions, counsel argued that Kintz had a strong reason to testify on one charge but not the other because "he made admissions in one and not in the other" and he had a felony conviction that could impeach him. The trial court considered these arguments and determined the defendant's concerns about testifying should not prevent joinder. "I think it only makes a different [sic] if the [S]tate can use impeachment evidence in one case and not the other, and I'm not sure that that's the situation that we have here . . . I think it's pretty clear that the court's intent with regard to the use of this evidence for impeachment, that it's going to be a real uphill battle to present that, and therefore, the impeachment ruling goes away." The trial court found Kintz' concerns about testifying did not amount to a "strong reason" requiring the severance of the charges for trial. The evidence showed that the defense was unsure of whether Kintz would testify and what he would say that might amount to prejudice.
The State had strong evidence on each of the individual counts. On the count involving the contact with Westfall, the State provided circumstantial evidence of the white van and Kintz' proximity to Westfall within minutes of her call to the police. During this police contact, Kintz admitted to being in the park. Gudaz provided eyewitness testimony about the various encounters she had with Kintz. The other witnesses supported the testimony of Westfall and Gudaz by providing evidence of other, similar acts. The State had sufficiently strong evidence on each of the counts, such that consolidation of the counts was appropriate.
Based on the evidence presented, the trial court did not abuse its discretion when it determined consolidation would not unduly prejudice Kintz.
IV. Admission of Other Evidence
In addition to the joinder issue, Kintz also alleges that the trial court erroneously admitted ER 404(b) testimony from other women who had experienced similar, uncharged encounters with Kintz. During a pretrial hearing, the trial court ruled it would allow some of the evidence for modus operandi and intent. The court considered the Vonk and Nelson incidents "sufficiently close in terms of the details and the nature of the contact for them to be admissible to, to talk about and essentially provide evidence of the modus operandi, essentially the mechanism and the process which he uses." The Page incident was admissible for rebuttal only. Page had contact with Kintz within minutes of the encounters with Westfall. The trial court allowed this as rebuttal only to show intent, "insofar as it [was] the same day, and he was asking directions and then did not leave the park area, that that [sic] would also be something that could come in with regard to rebuttal, with regards to intent."
As discussed above, case law has limited admission of evidence under modus operandi exception to ER 404(b). But, the testimony of Vonk, Nelson, and Page was properly admissible to show intent and common scheme or plan. The incidents with the women were similar — involving Kintz, the white van, requests for directions and clipboard. These similarities rise to the level of common scheme or plan, and are relevant to show intent and the commission of a crime — that Kintz intended more than merely asking for directions. The trial court did not abuse its discretion by admitting testimony concerning these three incidents.
Two of the three uncharged incidents involved a clipboard.
V. Allegations of Prosecutorial Misconduct
Kintz contends that the cumulative effect of some of the prosecutor's questions to the defense expert witness amounted to prosecutorial misconduct. Kintz objected to several lines of questioning and eventually moved for a mistrial. The trial court denied the motion and continued to verdict. We review rulings on allegations of prosecutorial misconduct for abuse of discretion. State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997). When the defendant moves for a mistrial based on prosecutorial misconduct, we give deference to the trial court's ruling since "the trial court is in the best position to most effectively determine if prosecutorial misconduct prejudiced the defendant's right to a fair trial." Id. at 719 (quoting State v. Luvene, 127 Wn.2d 690, 701, 903 P.2d 960 (1995)). Kintz must establish that the prosecutor's conduct was both improper and prejudicial such that "there is a substantial likelihood the misconduct affected the jury's verdict." Stenson, 132 Wn.2d at 718-19.
At the pretrial hearing the court ruled Kintz' prior luring conviction inadmissible. During a break in cross-examination of defense expert, Nyblade, the State made a motion to introduce evidence of Kintz' past luring conviction through her testimony. The trial court determined that this prior crimes evidence was highly prejudicial and denied the State's motion. Nonetheless, the State asked Nyblade several questions hinting at the existence of a previous conviction. For example, "[Y]ou happen to know that your client has been told very clearly in the past not to do what did he [sic] to these women; isn't that right?" Defense counsel objected to this question. The objection was sustained and the jury was told to disregard the question. A few minutes later the prosecutor asked about the witness' knowledge of Kintz' past problems while abusing drugs. The court sustained an objection and told the witness not to answer the question.
In addition to these references to the inadmissible past conviction, the prosecutor asked Nyblade about Kintz' use of the term "self-gratification" when describing his behavior to her. Nyblade testified that Kintz told her "I was on drugs when I did this. My reason was self-gratification." The prosecutor then asked, "you took that, what he said to understand that he meant that he was masturbating; isn't that correct?" The expert testified that she did not know what Kintz meant by "self-gratification" and did not request clarification. The prosecutor then asked, "And you didn't clarify, because you knew what he meant when he said self-gratification was masturbation; isn't that right?" The defense did not object to this line of questioning.
After Nyblade's testimony, the defense moved for a mistrial. The trial court stated that Kintz' objections had been sustained and the jury had been told to disregard the question. The court expressed some concerns about the masturbation testimony, but ultimately denied the mistrial because "the last few questions were that he really didn't give her any sexual connotation at the time, and I think that came out pretty clearly that he said nothing about that, so although I think it's troublesome, I don't think it's enough to declare a mistrial at this point." The trial court did not find adequate evidence of prosecutorial misconduct to necessitate a mistrial.
Indeed, the prosecutor's conduct does not appear improper. The masturbation questions stemmed from Kintz' comment to the expert witness about his actions. The defense introduced the witness to testify about Kintz' mental problems and his ability to form intent. The masturbation questions related to the information she used to formulate her conclusions about Kintz' capacity for intent. If these questions were misconduct, they were not prejudicial. Nyblade's responses showed no evidence that Kintz meant masturbation when he claimed "self-gratification" as his motivation, so the questions ultimately resulted in little harm.
Kintz also alleged misconduct based on the prosecutor's allusions to the inadmissible luring conviction. He contends that misconduct arises upon inquiry into details of a prior conviction, as in State v. Coles, 28 Wn. App. 563, 573, 625 P.2d 713 (1981). In Coles, the defendant admitted his two prior convictions for assault during direct examination. Id. at 569. During cross-examination, the prosecutor asked for details about the assaults and raised other uncharged incidents. Id. at 569-570. The prosecutor also revisited the prior convictions during his closing arguments as circumstantial evidence of the defendant's guilt. Id. at 571.
Kintz' reliance on Coles is misplaced. In Coles, the prosecutor elicited details about the convictions and prior acts and mentioned the convictions specifically during closing. Here, the prosecutor did not directly raise or comment on the inadmissible prior conviction. He made allusions to the fact that Kintz had been told not to engage in the intimidating behavior. But, the allusions, as recounted above, were vague. The jury may have been left wondering about Kintz' past, but had no knowledge that he had any past convictions or bad acts other than those properly admitted. This differs significantly from Coles, where the jury heard details of the assaults from the defendant. Here, the prosecutor's questions hinted at prior crimes evidence, but did not cross the line by revealing the inadmissible evidence. Even if the questions about Kintz' past did stray into misconduct, the defense's objections and judge's instruction to the jury cured any harm.
The prosecutor's comments did not constitute misconduct. Moreover, none of the statements were sufficiently prejudicial to affect the jury's verdict. The trial court did not abuse its discretion by denying the mistrial. VI. Sentence
Kintz received two consecutive sentences of 365 days with 90 days suspended for each count. He claims the cumulative sentence of 550 days is grossly disproportionate given his prior history of one felony conviction and the nature of the crimes.
A sentence violates the Washington State Constitution if it is disproportionate to the crime for which it is imposed. State v. Morin, 100 Wn. App. 25, 29, 995 P.2d 113 (2000); See Wash. Const. art. I, § 14. To determine whether a sentence is disproportionate, "we consider (1) the nature of the offense, (2) the legislative purpose behind the sentencing statute, (3) the punishment the defendant would have received in other jurisdictions for the same offense, and (4) the punishment meted out for other offenses in Washington." Wahleithner v. Thompson, 134 Wn. App. 931, 936, 143 P.2d 321 (2006) (citing State v. Fain, 94 Wn.2d 387, 397, 395 P.2d 720 (1980).
Kintz does not argue that his individual sentences are disproportionate. Indeed, the individual sentence meted out for each stalking charge is proper since a gross misdemeanor is punishable by a maximum of one year in jail. RCW 9A.20.021(2). In addition, trial courts have discretion to impose misdemeanor sentences consecutively. Wahleithner, 134 Wn. App. at 939 (citing Mortell v. State, 118 Wn. App. 846, 851-52, 78 P.3d 197 (2003)); See also State v. Gailus, 136 Wn. App. 191, 201-202, 147 P.3d 1300 (2006). As the individual sentences are proper, Kintz attacks the cumulative length of the sentence. "Defendant is sentenced to 550 days incarceration for two incidents each consisting of contact with a women [sic] over the course of 20 minutes." But, this is not the proper unit of analysis for sentence proportionality. Proportionality review occurs for each individual sentence; it does not consider the cumulative effect. Wahleithner, 134 Wn. App. at 936. "Only on the very rare occasion when a consecutive sentence is shockingly long has a court held cumulative sentences cruel and unusual." Id. at 937.
Kintz has not shown that his individual sentences are improper and has not given an argument as to why this is the rare example that should review a cumulative sentence. We affirm the sentence.
VII. Cumulative Error
Kintz contends that even if the individual errors above do not warrant reversal, the combined effect of the errors requires reversal. "While it is possible that some of these errors, standing alone, might not be of sufficient gravity to constitute grounds for a new trial, the combined effect of the accumulation of errors most certainly requires a new trial." State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984). But, as seen above, the appealed issues do not amount to errors. When no prejudicial error occurs, cumulative error does not apply. State v. Stevens, 58 Wn. App. 478, 498, 794 P.2d 38 (1990). The cumulative error doctrine does not require reversal.
We affirm.