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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       DIVISION ONE
                      Respondent,           )
                                            )       No. 66745-9-I
                      v.                    )
                                            )       PUBLISHED OPINION
CLEO PALMER REED                            )
a.k.a. CLEO REED PALMER,                    )
                                            )
                      Appellant.            )       FILED: June 4, 2012
________________________________)

       Dwyer, J.  --  Statements to law enforcement officers do not implicate the 

Sixth Amendment's confrontation clause where those statements are made 

under circumstances that, objectively viewed, indicate that the primary purpose 

of the encounter was to enable the police to meet an ongoing emergency. Here, 

Cleo Reed appeals from his conviction of assault in the second degree arising 

from an incident in which he strangled his girlfriend, Nat Emily Ta.  Reed 

contends that the admission of out-of-court statements uttered by Ta violated his 

federal right to confront the witnesses against him.  However, because an

objective evaluation of the circumstances demonstrates that Ta made these 

statements in the course of an ongoing emergency, Ta's statements are 

nontestimonial and, accordingly, are not subject to the requirements of the 

confrontation clause.  Because Reed's other contentions are also without merit,  

No. 66745-9-I/2

we affirm his conviction.

                                            I

       At approximately 2:00 p.m. on June 23, 2010, Nat Emily Ta placed a 911 

call.  Ta told the operator that her boyfriend, Cleo Reed, was "choking" her, 

"scratching" her, had "punched [her] lip," and was continuing to threaten her. 

Reed, who remained at the scene, could be heard shouting in the background 

during the call. Ta said that Reed had recently been in jail.  The call 

disconnected before the operator could determine Ta's location.  

       Ta called 911 again at approximately 11:00 p.m.  Ta told the operator that

"this mother fucker he just beat me up right now." She explained that Reed had 

again been "choking [her]," and that she was "bleeding on [her] nose."  She told 

the operator that the attack had occurred while the couple was driving with 

Reed's cousin.  Ta stated that she was "pregnant right now" and that Reed had 

left her by the side of the road in an unfamiliar area of Renton.  Ta struggled to 

convey her location to the operator.  She told the operator that she needed a 

"cop" but did not require medical assistance.  

       The operator continued to question Ta while Ta waited in the parking lot 

of a McDonald's restaurant for police to arrive.  Ta gave a detailed description of 

Reed, described Reed's use of cocaine and alcohol, and alluded to prior violent 

acts by Reed.  She told the operator that she needed to "put his ass back in jail."     

       Renton Police Officer Robert Bagsby was the first officer to arrive at the 

                                          - 2 - 

No. 66745-9-I/3

scene.  Upon Officer Bagsby's arrival, Ta ran to his patrol car.  Without 

prompting, Ta exclaimed that "my boyfriend beat me up, choked me, [and] 

wouldn't let me out of my car."  Ta was "hysterical" and "crying uncontrollably."  

She was out of breath and spoke in "short, brief sentences."  After once again 

declining medical treatment, Ta described the incident in greater detail.    

       Seattle Police Officer John Marion thereafter assumed responsibility for 

the investigation.  Officer Marion took photographs of Ta's injuries, which 

included a bleeding lip and fresh red marks and scratches on her neck, face, 

and hands.  Officer Marion interviewed Ta, took a written statement, and then 

drove her home.  

       Reed was initially charged with one count of assault in the second 

degree.  However, following Reed's arrest, he placed at least two telephone 

calls to Ta from jail.  Reed instructed Ta to write a letter stating that she had lied 

to the police, and that Reed had never "hit" her, "choked" her, or "smacked" her.  

Reed told Ta to have the letter notarized and to make several copies.  He 

instructed Ta to come to court and to make it clear that he was not forcing her to 

recant.  Based upon these phone calls, Reed was also charged with one count 

of tampering with a witness.  In addition, the State alleged the aggravating 

circumstance that Ta was pregnant at the time of the assault.  

       Reed was arraigned on July 15, 2010.  As Reed had instructed her to do, 

Ta appeared at the hearing and gave a copy of the notarized letter to the 

                                          - 3 - 

No. 66745-9-I/4

prosecutor. Ta requested that Reed be released and that no no-contact order

be issued.  Despite the prosecutor's efforts to persuade Ta to appear as a 

witness at Reed's trial, Ta refused to cooperate.  The prosecutor decided 

against requesting a material witness warrant for Ta's arrest.  

       As expected, Ta did not appear to testify at trial.  However, the trial court 

ruled admissible portions of Ta's two 911 calls and her initial, spontaneous,

statements to Officer Bagsby after determining that these statements were 
nontestimonial for purposes of the confrontation clause.1 The trial court 

concluded that the latter portions of Ta's second 911 call and all statements 

made to officers following her initial statements to Officer Bagsby were 

testimonial.  Accordingly, these statements were not admitted at trial.  

       At the conclusion of the trial, the jury convicted Reed of assault in the 

second degree and witness tampering as charged, but did not find the 

aggravating circumstance to have been proved.  The trial court imposed a 

standard-range sentence.  

       Reed appeals.

                                           II

       Reed first contends that the trial court erred by admitting into evidence 

statements made by Ta during the two 911 calls and to Officer Bagsby upon his 

       1 Reed asserted his confrontation clause objection prior to trial.  After hearing arguments 
by the prosecutor and defense counsel, the trial court engaged in a detailed analysis on the 
record to determine whether each set of statements was testimonial.  Although the trial court 
determined that not all of Ta's out-of-court statements would be admitted, the record makes clear 
that the trial court understood that it was ruling admissible the remaining statements over Reed's 
objection.  

                                          - 4 - 

No. 66745-9-I/5

arrival at the scene.  We disagree.

       The confrontation clause of the Sixth Amendment states:  "In all criminal 

prosecutions, the accused shall enjoy the right . . . to be confronted with the 

witnesses against him."  U.S. Const. amend. VI.  The confrontation clause bars 

the admission of "testimonial" hearsay unless the declarant is unavailable to 

testify and the defendant had a prior opportunity for cross-examination.  

Crawford v. Washington, 541 U.S. 36, 53 -- 54, 124 S. Ct. 1354, 158 L. Ed. 2d 
177 (2004).2  

       In Crawford, the United States Supreme Court left "for another day any 

effort to spell out a comprehensive definition of 'testimonial.'"  541 U.S. at 68.  

However, in the years following the filing of that decision, the Court has, on 

several occasions, more fully delineated the parameters of testimonial hearsay 

in the context of police interrogations.  See Michigan v. Bryant , __ U.S. __, 131 

S. Ct. 1143, 179 L. Ed. 2d 93 (2011); Davis v. Washington, 547 U.S. 813, 126 S.

Ct. 2266, 165 L. Ed. 2d 224 (2006).  Where the police are involved in procuring 

an unconfronted statement, whether the statement is testimonial depends upon 

the "primary purpose" for the interrogation during which the statement was 

made.  Davis, 547 U.S. at 822.  Where the interrogation is "directed at 

establishing the facts of a past crime, in order to identify (or provide evidence to 

convict) the perpetrator," the product of such an interrogation is necessarily 

       2 We review alleged violations of the confrontation clause de novo.  State v. Koslowski, 
166 Wn.2d 409, 417, 209 P.3d 479 (2009).  

                                          - 5 - 

No. 66745-9-I/6

testimonial.  Davis, 547 U.S. at 826.  In contrast, statements are nontestimonial

when made "under circumstances objectively indicating that the primary purpose 

of the interrogation is to enable police assistance to meet an ongoing 

emergency."  Davis, 547 U.S. at 822. Accordingly, "the existence of an 'ongoing 

emergency' at the time of an encounter between an individual and the police is 

among the most important circumstances informing the 'primary purpose' of an 
interrogation."3  Bryant, 131 S. Ct. at 1157.

       "[W]hether an emergency exists and is ongoing is a highly context-

dependent inquiry."  Bryant, 131 S. Ct. at 1158. In order to ascertain the primary 

purpose of a police interrogation, a court must "objectively evaluate the 

circumstances in which the encounter occurs and the statements and actions of 

the parties."  Bryant, 131 S. Ct. at 1156. "[T]he relevant inquiry is not the 

subjective or actual purpose of the individuals involved in a particular encounter, 

but rather the purpose that reasonable participants would have had, as 

ascertained from the individuals' statements and actions and the circumstances 

in which the encounter occurred."  Bryant, 131 S. Ct. at 1156.  

       Our inquiry is guided by four relevant factors.  See State v. Koslowski,

166 Wn.2d 409, 418-19, 209 P.3d 479 (2009); State v. Ohlson, 162 Wn.2d 1, 11-

12, 168 P.3d 1273 (2007).  First, we examine the timing of the statements 

relative to when the described events occurred.  Davis, 547 U.S. at 827.  Where 

       3 There may, of course, be other purposes for a police interrogation that will not tend to 
generate testimonial hearsay.  See Bryant, 131 S. Ct. at 1155 ("[T]here may be other
circumstances, aside from ongoing emergencies, when a statement is not procured with a 
primary purpose of creating an out-of-court substitute for trial testimony."). 

                                          - 6 - 

No. 66745-9-I/7

a speaker has described events as they were actually occurring, such 

statements are indicative of an ongoing emergency.  Davis, 547 U.S. at 827.  

Conversely, a description of past events is less likely to demonstrate a present 

need for assistance.  Davis, 547 U.S. at 829-30.  

       Second, we assess the nature of what was asked and answered during 

the interrogation to determine whether the elicited statements were necessary to 

resolve a present emergency or merely to determine what happened in the past.  

Davis, 547 U.S. at 827.  For instance, a 911 operator's effort to establish an 

assailant's identity -- "so that the dispatched officers might know whether they 

would be encountering a violent felon" -- would tend to indicate that the elicited 

statements were nontestimonial.  Davis, 547 U.S. at 827.  

       Third, we consider the threat of harm posed by the situation as judged by 

a "reasonable listener."  Davis, 547 U.S. at 827.  A plain call for help "against a 

bona fide physical threat" strongly suggests that the speaker is facing an 

ongoing emergency.  Davis, 547 U.S. at 827.  On the other hand, where it is 

clear that the threat posed by the perpetrator -- to either the victim, the police, or 

the public -- has been neutralized, such circumstances tend to indicate that no 

ongoing emergency exists.  Bryant, 131 S. Ct. at 1158.  

       Finally, we evaluate the level of formality of the interrogation.  Davis, 547 

U.S. at 827.  The greater the formality of the encounter, the more likely it is that 

a statement elicited during that encounter is testimonial.  Bryant, 131 S. Ct. at 

                                          - 7 - 

No. 66745-9-I/8

1160. In contrast, disorganized questioning in an exposed, public area that is 

neither tranquil nor safe tends to indicate the presence of an ongoing 

emergency.  Bryant, 131 S. Ct. at 1160; Davis, 547 U.S. at 827.  

       As an initial matter, Reed asserts that the trial court erred by redacting 

certain portions of the 911 recordings prior to determining that Ta's remaining 

statements were nontestimonial.  Reed is, of course, correct that the primary 

purpose of an interrogation must be derived from all of the circumstances of the 

encounter, Bryant, 131 S. Ct. at 1156, and that a court would err were it to strike

offensive portions of a speaker's statements before making such a 

determination.  However, the record does not support Reed's assertion that such 

a thing took place in this case.  Although it is true that portions of the 911 

recordings were ultimately kept from the jury, the trial court clearly considered 

the entirety of the recordings in determining the testimonial nature of Ta's 

statements.  Indeed, the redacted portions were redacted not because the 

statements were testimonial but, rather, because the court determined that their 
admission would be unduly prejudicial to Reed.4  

       Moreover, a trial court may determine "in the first instance when any 

transition from nontestimonial to testimonial occurs."  Bryant, 131 S. Ct. at 

1159-60. "[A] conversation which begins as an interrogation to determine the 

need for emergency assistance [can] . . . 'evolve into testimonial statements.'"  

       4 The trial court redacted all references to Reed's race and recent imprisonment.  
However, the record does not indicate that the trial court failed to consider these utterances 
when determining whether Ta's statements were testimonial.

                                          - 8 - 

No. 66745-9-I/9

Davis, 547 U.S. at 828 (quoting Hammon v. State, 829 N.E.2d 444, 457 (2005)).  

"Just as, for Fifth Amendment purposes, 'police officers can and will distinguish 

almost instinctively between questions necessary to secure their own safety or 

the safety of the public and questions designed solely to elicit testimonial 

evidence from a suspect,' . . . trial courts will recognize the point at which, for 

Sixth Amendment purposes, statements in response to interrogations become 

testimonial."  Davis, 547 U.S. at 829 (quoting New York v. Quarles, 467 U.S. 

649, 658-59, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984)).  Accordingly, the trial 

court was permitted to determine that, although the latter portion of Ta's second 

911 call was testimonial, the statements in the first portion of the call did not 

implicate Reed's right to confrontation.  

       Turning to the merits of Reed's confrontation clause challenge, it is clear 

that the trial court properly determined that Ta's statements in the first 911 call 

were nontestimonial.  An objective evaluation of the "circumstances in which the 

encounter occurs and the statements and actions of the parties" demonstrates

that the primary purpose of the investigation was to meet an ongoing 

emergency.  Bryant, 131 S. Ct. at 1156.  Although the record does not indicate 

that Ta was being choked or punched during her conversation with the operator, 

Ta made clear that Reed's actions occurred in the recent past.  As our Supreme 

Court has observed, where statements are made "within minutes of the assault," 

such statements may properly be considered as "contemporaneous[] with the 

                                          - 9 - 

No. 66745-9-I/10

events described."  Ohlson, 162 Wn.2d at 17.  Indeed, Ta stated during the call 

that Reed was "threatening me right now."  Moreover, the operator's focus on 

ascertaining Ta's location indicates that the primary purpose of the interrogation 

was to provide emergency assistance.  The record does not reflect that the 

operator was attempting merely to determine "what had happened in the past."  

Davis, 547 U.S. at 827.  In addition, there is little doubt that a reasonable 

listener would conclude that Reed posed a bona fide physical threat to Ta.  

Reed was present throughout the call and can be heard shouting angrily in the 

background.  Finally, the lack of formality of the interrogation favors 

admissibility -- Ta made these statements from an unsafe location, outside of 

police protection, and in the presence of an angry, vocal assailant.  The court 

did not err by determining that these statements were nontestimonial.

       The trial court also properly admitted statements made during the first 
portion of Ta's second 911 call.5 As in Ta's previous 911 call, Ta described very 

recent events to the operator.  Ta told the operator that Reed had "just beat me 

up right now."  She stated that these events took place within minutes of her 

placing the call, see Ohlson, 162 Wn.2d at 17, repeatedly telling the operator 

that the assault had occurred "just right now."  Moreover, the nature of the 

       5 On appeal, Reed focuses on Ta's subjective intent in reporting Reed's conduct to 
police, explaining that, by the time of this second call, Ta's "awareness that her statements 
[could] be used to prosecute Mr. Reed [had] ripened into an adamant desire that they be so 
used."  However, an ascertainment of Ta's subjective intent is not the proper inquiry.  "[T]he 
relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular 
encounter, but rather the purpose that reasonable participants would have had."  Bryant, 131 S.
Ct. at 1156.  This is an objective inquiry.  

                                         - 10 - 

No. 66745-9-I/11

questions asked indicates that the purpose of the interrogation was to resolve an 

emergency.  The operator's questions during this portion of the call were 

designed to ascertain Ta's location, her need for medical assistance, and to 

determine whether Reed remained in the area where he could continue to pose 

a threat to Ta and responding officers.  Furthermore, as in the first call, the 

interrogation lacked formality -- a distressed and frightened Ta struggled to 

communicate even the basic circumstances of her situation from a public area 

with which she was obviously unfamiliar.  All of these circumstances 

demonstrate that the primary purpose of the second 911 call was to enable a 

response to Ta's emergency. 

       Nevertheless, Reed contends that, because Reed had left the scene of 

the assault prior to Ta's 911 call -- a fact that was clearly communicated to the 

operator -- no reasonable listener could have determined that Reed posed the 

type of continuing threat that is necessary to demonstrate the existence of an 

ongoing emergency.  However, insofar as Reed asserts that the absence of an 

assailant from the scene of a domestic assault necessarily establishes the lack 

of an emergency, Reed is mistaken.  See Bryant, 131 S. Ct. at 1158 ("The 

Michigan Supreme Court erroneously read Davis as deciding that 'the 

statements made after the defendant stopped assaulting the victim and left the 

premises did not occur during an "ongoing emergency."'" (quoting People v. 

Bryant, 483 Mich. 132, 149 n.15, 768 N.W.2d 65 (2009))).  Although the Court in 

                                         - 11 - 

No. 66745-9-I/12

Bryant noted that, in the context of domestic violence, a court should assess the 

presence of an ongoing emergency "from the perspective of whether there was a 

continuing threat to [the victim]," 131 S. Ct. at 1158, this does not mean that the 
departure of a domestic assailant necessarily eliminates the potential threat.6  

       Here, Ta was alone and injured, and her assailant was still at large.  The 

operator was aware that Reed, having driven away only moments before Ta 

placed the call, was highly mobile and could potentially return to the scene to 

resume the assault.  See Ohlson, 162 Wn.2d at 18 ("[T]here is no way to know, 

and every reason to believe, that Ohlson might return . . . and perhaps escalate 

his behavior even more.").  Although a reasonable listener is unlikely to have 

determined that Reed posed a public threat, Reed clearly continued to pose a 

"bona fide physical threat" to Ta.  Davis, 547 U.S. at 827.  The trial court did not 

err by determining that Ta's statements during this portion of the second 911 call 
were nontestimonial and, thus, admissible.7

       Finally, Reed contends that Ta's initial statements to Officer Bagsby upon 

this officer's arrival at the scene constitute testimonial statements.  Reed first 

asserts that, because the trial court determined that Ta's statements during the 

       6 In explaining this focus, the Court explained that "[d]omestic violence cases . . . often 
have a narrower zone of potential victims than cases involving threats to public safety."
Bryant, 131 S. Ct. at 1158. The Court noted that the duration and scope of an emergency may 
depend upon the type of weapon involved.  Bryant, 131 S. Ct. at 1158. An emergency is more 
limited in scope when the assailant is "armed only with his fists."  Bryant, 131 S. Ct. at 1159.  
       7 That Reed did not actually return to the scene is of no consequence.  "If the information 
the parties knew at the time of the encounter would lead a reasonable person to believe that 
there was an emergency, even if that belief was later proved incorrect, that is sufficient for 
purposes of the confrontation clause."  Bryant, 131 S. Ct. at 1157 n.8.

                                         - 12 - 

No. 66745-9-I/13

latter portions of her second 911 call were testimonial, it cannot be that the 

emergency persisted beyond the point at which her answers "'evolve[d] into 

testimonial statements.'"  Davis, 547 U.S. at 828 (quoting Hammon, 829 N.E.2d 

at 457).  We disagree.

       The purpose of an interrogation must be objectively evaluated from the 

statements and actions of the parties to the encounter.  Bryant, 131 S. Ct. at 

1156. It is certainly possible that a responding officer's obvious focus on 

eliciting testimonial statements -- even during an emergency -- will render the 

declarant's responses testimonial.  This does not mean that the emergency 

necessarily has ended.  Where a subsequent questioner clearly refocuses the 

inquiry on resolving that emergency, a trial court should not ignore the purpose 

of the subsequent interrogation, objectively viewed.  Reed's proposed per se 

rule of exclusion is without support in the case law.

       Here, our review of the circumstances of Ta's encounter with Officer 

Bagsby indicates that Ta's initial, spontaneous statements were made, not to 

"prove past events potentially relevant to later criminal prosecution," Davis, 547 

U.S. at 822, but to secure police assistance in responding to an emergency.  As 

in the 911 calls, both the timing of Ta's statements and the lack of formality of 

the encounter favor admission of Ta's statements.  These statements, which 

occurred only six minutes after Ta placed the second 911 call, were made under 

circumstances that lacked the formality typical of a police interrogation designed 

                                         - 13 - 

No. 66745-9-I/14

to elicit information for later use in a prosecution.  The interrogation (such as it 

was) took place in an exposed and unfamiliar public place -- a far cry from the 

calm and structured setting of the station house, where Ta would have been 

alerted to "the possible future prosecutorial use of [her] statements."  Bryant, 131 

S. Ct. at 1167.  

       Moreover, objectively viewed, Ta's behavior under these circumstances 
indicates that the purpose of her statements was to secure police protection.8

Upon Officer Babsby's arrival at the scene, Ta ran to his vehicle and, without 
prompting, exclaimed that she had been attacked.9  Ta was "hysterical" and 

"crying uncontrollably."  She was out of breath and bleeding from her mouth.  

Furthermore, although Officer Bagsby's arrival temporarily eliminated the threat 

that Reed might return to do further harm to Ta, this protection was contingent 

upon his continued presence at the scene.  Accordingly, Ta's initial statements 

are most reasonably understood as a victim's efforts to inform the police of an 

emergency, thus ensuring that an officer remain at the scene to provide 

       8 Officer Bagsby said nothing to elicit these statements by Ta.  Thus, only his behavior 
can be objectively evaluated in ascertaining the purpose of this initial encounter.  His behavior 
consisted of responding to the report of a recent assault and stopping his patrol car in a parking 
lot where he believed that he would encounter the victim.
       9 The State asserts that, because Ta's statements were entirely spontaneous, it is 
questionable whether the confrontation clause is implicated at all.  However, the Supreme Court 
has made abundantly clear that interrogation is not a prerequisite for testimonial hearsay.  In 
Davis, the court explained:  
       Our holding refers to interrogations because, as explained below, the statements 
       in the cases presently before us are the products of interrogations -- which in 
       some circumstances tend to generate testimonial responses. This is not to imply, 
       however, that statements made in the absence of any interrogation are 
       necessarily nontestimonial. The Framers were no more willing to exempt from 
       cross-examination volunteered testimony or answers to open-ended questions 
       than they were to exempt answers to detailed interrogation. 
547 U.S. at 822 n.1.

                                         - 14 - 

No. 66745-9-I/15

assistance.  Of course, once this police protection was secured, reasonable 

participants in Ta's and Officer Bagsby's circumstances would understand that 

the threat to Ta was neutralized and the emergency had ended.  Consequently, 

as the trial court correctly determined, Ta's subsequent statements to Officer 

Bagsby and to later arriving officers were testimonial and, thus, inadmissible.  

However, because an objective evaluation of the circumstances makes clear that 

Ta's initial, spontaneous statements were primarily intended to secure police 

assistance, the trial court did not err by determining that these statements did 
not implicate the confrontation clause.1

       The trial court properly determined that Ta's statements during the first 

911 call, her statements during the first portion of the second 911 call, and her 

initial, spontaneous statements to Officer Bagsby were nontestimonial.  The 

admission of these statements at trial did not violate Reed's right to 

confrontation.

                                           III

       1 Reed further contends that his right to confrontation was violated by the admission of 
Ta's statements because the State failed to demonstrate that Ta was "unavailable."  However, 
Reed cannot assert a freestanding confrontation clause claim based upon the State's failure to 
produce a witness at trial.  Instead, Ta's statements are either testimonial or they are not.  If the 
statements are nontestimonial, the confrontation clause is not implicated and admissibility of the 
statements is subject only to our state's hearsay rules.  Crawford, 541 U.S. at 68.  Here, Ta's 
statements were admitted as excited utterances pursuant to ER 803(a)(2).  Such statements are 
admissible regardless of the availability of the witness.  ER 803(a).  
       On the other hand, if the statements are testimonial, the State must either produce the 
witness at trial or the defendant must have had a prior opportunity to cross-examine the witness.  
Crawford, 541 U.S. at 68.  Although, in such instances, the State must also demonstrate that the 
witness is "unavailable" before the previously confronted testimony may be admitted, Crawford, 
541 U.S. at 68, because it is undisputed that Reed had no prior opportunity to cross-examine Ta, 
the issue of Ta's availability has no impact on the admissibility of her statements. 

                                         - 15 - 

No. 66745-9-I/16

       Reed next contends that the trial court abused its discretion by denying 

his request for a missing witness instruction.  Reed asserts that, because the 

State did not call Ta as a witness, he was entitled to argue to the jury that it 

should infer that Ta's testimony would have been unfavorable to the State's case 

against him.  We disagree. 

       A trial court's refusal to issue a requested instruction, when based on the 

evidence in the case, is reviewed for abuse of discretion.  State v. Walker, 136 

Wn.2d 767, 771-72, 966 P.2d 883 (1998). A trial court abuses its discretion only 

where its decision is "manifestly unreasonable or based upon untenable grounds 

or reasons."  State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).

        A missing witness instruction informs the jury that it may infer from a

witness's absence at trial that his or her testimony would have been unfavorable 

to the party who would logically have called that witness.  State v. Flora, 160 

Wn. App. 549, 556, 249 P.3d 188 (2011).  Such an instruction is proper where

the witness is peculiarly available to one of the parties, Flora, 160 Wn. App. at

556, and the circumstances at trial establish that, as a matter of reasonable 

probability, the party would not have knowingly failed to call the witness "unless 

the witness's testimony would be damaging."  State v. Davis, 73 Wn.2d 271, 

280, 438 P.2d 185 (1968), overruled on other grounds by State v. Abdulle, 

No. 84660 -- 0, 2012 WL 1570033 (Wash. May 3, 2012).  However, no inference 

is permitted where the witness is unimportant or the testimony would be 

                                         - 16 - 

No. 66745-9-I/17

cumulative.  State v. Blair, 117 Wn.2d 479, 489, 816 P.2d 718 (1991). Nor is a 

party entitled to a missing witness instruction where the absence of the witness 

can be satisfactorily explained.  Blair, 117 Wn.2d at 489 (citing State v. Lopez,

29 Wn. App. 836, 841, 631 P.2d 420 (1981)).  

       Here, the trial court did not abuse its discretion by refusing to give a 

missing witness instruction.  As a threshold matter, Ta cannot be deemed to 

have been peculiarly available to the State.  A witness is not "peculiarly 

available" merely because the witness is subject to the subpoena power. Blair,

117 Wn.2d at 490.  Rather, as our state Supreme Court has explained: 

              For a witness to be "available" to one party to an action, 
       there must have been such a community of interest between the 
       party and the witness, or the party must have so superior an 
       opportunity for knowledge of a witness, as in ordinary experience 
       would have made it reasonably probable that the witness would 
       have been called to testify for such party except for the fact that his 
       testimony would have been damaging.

Davis, 73 Wn.2d at 277.  

       Thus, whether a witness is peculiarly available to a party depends upon 

the nature of the relationship between the witness and that party.  In Davis, the 

court determined that an uncalled witness, a member of the law enforcement 

agency that had investigated the defendant, "worked so closely and continually 

with the county prosecutor's office with respect to this and other criminal cases 

as to indicate a community of interest between the prosecutor and the uncalled 

witness."  73 Wn.2d at 278. Similarly, in Blair, the court determined that missing 

                                         - 17 - 

No. 66745-9-I/18

witnesses were peculiarly available to the defendant where the names of the 

witnesses -- with whom the defendant had both personal and business 

relationships -- were "known to defendant alone."  117 Wn.2d at 490.  

       By contrast, Ta had no professional relationship with the prosecutor.  She 

was not a law enforcement agent; nor was she unknown to Reed.  Indeed, 

Reed's influence over Ta appears to have exceeded that of the 

prosecutor -- Reed maintained contact with Ta throughout his time in jail and, on 

more than one occasion, convinced Ta to engage in conduct that would benefit 

his cause.  If Reed truly believed that Ta's testimony would be unfavorable to the 
State's case against him, he had every opportunity to call her as a witness.11  A 

missing witness instruction is not properly given if the uncalled witness is 

"equally available" to the parties. Blair, 117 Wn.2d at 490.  Because Ta was not 

peculiarly available to the State, the trial court did not abuse its discretion by 

denying Reed's requested instruction. 

       Moreover, Ta's absence from trial was satisfactorily explained.  The party 

against whom the missing witness rule would operate is entitled to explain that 

witness's absence and thereby avoid operation of the inference.  Blair, 117 

Wn.2d at 489. Here, it is likely that Reed's own conduct was responsible for 

       11 Reed asserts that a victim of domestic violence cannot be available as a witness for 
the defendant.  However, in so arguing, he improperly relies on our decision in State v. David, 
118 Wn. App. 61, 74 P.3d 686 (2003), rev. on other grounds on recons., 130 Wn. App. 232, 122 
P.3d 764 (2005). In David, the victim -- who was disabled due to the defendant's abuse -- was not 
available to either the defendant or the State, as contact with either party was arranged through 
the trial court and the victim's legal guardian. 118 Wn. App. at 66-67. The David decision does 
not stand for the proposition that a victim of domestic violence is necessarily unavailable to the 
alleged perpetrator. 

                                         - 18 - 

No. 66745-9-I/19

Ta's absence at trial.  Reed instructed Ta that she must recant her prior 

allegations and absolve him of blame for her injuries.  At Reed's instruction, Ta 

delivered a notarized letter to the trial court, indicating her desire that charges 

against Reed be dismissed.  She requested that the court decline to impose a no-

contact order.  Thereafter, Ta refused to cooperate with the prosecution.  

Although the trial prosecutor made multiple efforts to persuade Ta to appear at 

Reed's trial, Ta nevertheless declined to testify.  

       Given these circumstances, it is reasonable to believe that Ta's absence 

at trial was a product of Reed's influence.  Indeed, the jury ultimately convicted 

Reed of tampering with a witness, finding that Reed had attempted to "induce 

[Ta] . . . to testify falsely" in an official proceeding.  Having sought to influence a 

witness at every opportunity, a defendant cannot thereafter claim the benefit of 

any inference derived from that witness's absence at trial.  Ta's absence at trial 

was adequately explained.  The trial court did not err by declining to give a 

missing witness instruction. 

                                           IV

       Reed next asserts that the trial court's instructions to the jury relieved the 

State of its burden of proving the essential elements of assault in the second 

degree.  He contends that, because the trial court's instructions did not require 

the jury to find that Reed had the specific intent to obstruct Ta's blood flow or 

ability to breathe, his conviction of this crime was obtained in violation of his 

                                         - 19 - 

No. 66745-9-I/20

right to due process.  We disagree.

       The State bears the burden of proving all of the essential elements of the 

charged crime beyond a reasonable doubt. State v. Oster, 147 Wn.2d 141, 146, 

52 P.3d 26 (2002). A misstatement of the law in a jury instruction that relieves 

the State of its burden to prove every element of an offense is a violation of due 

process and requires automatic reversal.  State v. Thomas, 150 Wn.2d 821, 844, 

83 P.3d 970 (2004). We review alleged errors of law in jury instructions de 

novo.  State v. Barnes, 153 Wn.2d 378, 382, 103 P.3d 1219 (2005).

       A person is guilty of the crime of assault in the second degree by 

strangulation where that person intentionally "[a]ssaults another by 

strangulation."  RCW 9A.36.021(1)(g).  Strangulation is defined by statute as "to 

compress a person's neck, thereby obstructing the person's blood flow or ability 

to breathe, or doing so with the intent to obstruct the person's blood flow or 

ability to breathe."  RCW 9A.04.110(26).  Accordingly, in order to convict Reed 

of assault in the second degree by strangulation, the State was required to prove 

beyond a reasonable doubt that Reed intentionally assaulted Ta and that Reed 

either actually "obstruct[ed] [Ta's] blood flow or ability to breathe" by 

compressing her neck or that Reed compressed Ta's neck with the specific 

intent to cause this result.  RCW 9A.04.110(26).  The trial court was required to 

so instruct the jury. 

       Here, the trial court's instructions to the jury accurately stated the law.  

                                         - 20 - 

No. 66745-9-I/21

The "to convict" instruction for assault in the second degree stated that the jury 

must find that "the defendant intentionally assaulted Nat E. Ta by strangulation" 

in order to return a guilty verdict.  "Assault" was correctly defined as "an 

intentional touching or striking of another person, with unlawful force."  "Intent" 

was correctly defined as "acting with the objective or purpose to accomplish a 

result that constitutes a crime."  Finally, "strangulation" was defined as "to 

compress a person's neck in a manner that obstructs the person's blood flow or 

ability to breathe, or to compress a person's neck with the intent to obstruct the 

person's blood flow or ability to breathe."  This language precisely tracks the 

language of the relevant statute.  Accordingly, the trial court's instructions 

permitted the jury to convict Reed if it found beyond a reasonable doubt that 

Reed assaulted Ta and either (1) actually obstructed Ta's blood flow or 

breathing by compressing her neck or (2) compressed Ta's neck with the intent 

to cause this result.  RCW 9A.04.110(26).  The trial court's instructions did not 
misstate the law.12

       Nevertheless, Reed asserts that the trial court was required to instruct the 

jury that, even if it determined that Reed had actually obstructed Ta's blood flow 

       12 Nor did the trial court's instructions create a mandatory presumption.  The jury was not 
required to presume that Reed possessed the specific intent to obstruct Ta's breathing or blood 
flow by virtue of determining that Reed intentionally assaulted Ta.  See State v. Deal, 128 Wn.2d 
693, 699, 911 P.2d 996 (1996). Because the trial court's instructions clearly defined the specific 
intent required to prove strangulation where the defendant was not proved to have actually 
obstructed the victim's breathing or blood flow, a reasonable juror would have no difficulty 
discerning that something more than the intent to assault was required to convict.  Accordingly, 
the trial court's instructions did not, as claimed by Reed, create a mandatory presumption that 
relieved the State of its burden to prove all of the elements of the crime charged. Deal, 128 
Wn.2d at 701.    

                                         - 21 - 

No. 66745-9-I/22

or breathing by intentionally compressing her neck, the jury must also find that 

Reed possessed the specific intent to cause this result.  As an initial matter, 

Reed contends that a contrary interpretation of the statute transforms assault by 

strangulation into a strict liability offense -- a result he asserts was never 

contemplated by the legislature.  However, by definition, an assault is a willful 

act that requires intent. See State v. Hopper, 118 Wn.2d 151, 158-59, 822 P.2d 

775 (1992). In contrast, a strict liability offense is a crime that contains no mens

rea element whatsoever.  See, e.g., State v. Chhom, 128 Wn.2d 739, 741-43, 

911 P.2d 1014 (1996) (rape of a child has no mens rea element; it is a strict 

liability offense).  Because assault in the second degree by strangulation 

requires that the State prove that the harmful or offensive touching was 

intentional, this crime is not a strict liability offense. Reed's contention to the 

contrary is without merit.  

       Moreover, Reed's proposed interpretation is contrary to the plain

language of the statute, which defines strangulation in two ways: (1) by the 

actual injury suffered by the victim, regardless of the specific intent of the 

perpetrator or (2) by the specific intent of the perpetrator to obstruct the victim's 

blood flow or breathing, regardless of the actual injury suffered.  RCW 

9A.04.110(26).  Many crimes are defined by the injury suffered by the victim 

without regard to the perpetrator's specific intent to cause that injury.  See, e.g.,

RCW 46.61.520 (vehicular homicide); RCW 46.61.522 (vehicular assault); RCW 

                                         - 22 - 

No. 66745-9-I/23

9A.32.030(1)(c) (first degree felony murder); RCW 9A.32.050(1)(b) (second 

degree felony murder).  Reed points to no authority indicating that the legislature 

was not entitled to so define the crime of assault by strangulation.  

       Nor does the rule of lenity necessitate that the statute be interpreted to 

contain the additional element of specific intent.  The rule of lenity -- which 

requires us to interpret a statute in favor of the defendant absent legislative 

intent to the contrary -- applies only when a statute is "subject to more than one 

reasonable interpretation." State v. Jacobs, 154 Wn.2d 596, 600-01, 115 P.3d 

281 (2005). Here, because the statute's language is clear, the rule of lenity 

does not apply.  

       Pursuant to the trial court's instructions, the State was required to prove 

all of the essential elements of assault in the second degree beyond a 

reasonable doubt. The trial court's instructions were proper.

                                           V

       Reed finally contends that a statement regarding the presumption of 

innocence, made by the prosecutor during closing argument, constituted 

prosecutorial misconduct requiring reversal.  We disagree.

       "A defendant claiming prosecutorial misconduct must show that the 

prosecutor's conduct was both improper and prejudicial in the context of the 

entire record and circumstances at trial."  State v. Miles, 139 Wn. App. 879, 885, 

162 P.3d 1169 (2007). The propriety of a prosecutor's conduct is "reviewed in 

                                         - 23 - 

No. 66745-9-I/24

the context of the total argument, the issues in the case, the evidence addressed 

in the argument, and the instructions given."  State v. Russell, 125 Wn.2d 24, 85-

86, 882 P.2d 747 (1994). In closing argument, a prosecutor is afforded wide 

latitude to draw and express reasonable inferences from the evidence.  State v. 

Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991). Improper comments are 

prejudicial only where "'there is a substantial likelihood [that] the instances of 

misconduct affected the jury's verdict.'"  State v. Magers, 164 Wn.2d 174, 191, 

189 P.3d 126 (2008) (alteration in original) (quoting State v. Pirtle, 127 Wn.2d 

628, 672, 904 P.2d 245 (1995)).  Moreover, "'[c]ounsel may not remain silent, 

speculating upon a favorable verdict, and then, when it is adverse, use the 

claimed misconduct as a life preserver on a motion for new trial or on appeal.'" 

Russell, 125 Wn.2d at 93 (quoting Jones v. Hogan, 56 Wn.2d 23, 27, 351 P.2d 

153 (1960)).  Consequently, where a defendant does not object and request a 

curative instruction at trial, reversal is unwarranted unless the objectionable 

remark "'is so flagrant and ill-intentioned that it causes an enduring and resulting 

prejudice that could not have been neutralized by a curative instruction to the 

jury.'" State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006) (quoting State 

v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)).

       Here, Reed asserts that the prosecutor engaged in irremediable 

misconduct by stating in rebuttal argument that the presumption of innocence 

"does last all the way until you walk into that [jury] room and start deliberating."  

                                         - 24 - 

No. 66745-9-I/25

Reed is correct that the prosecutor's statement regarding the presumption of 

innocence was an incorrect statement of the law -- rather than dissipating at the 

beginning of deliberations, "[t]he presumption of innocence continues 

'throughout the entire trial' and may be overcome, if at all, during the jury's 

deliberations."  State v. Venegas, 155 Wn. App. 507, 524, 228 P.3d 813 (quoting 

11 Washington Practice: Washington Pattern Jury Instructions: Criminal 4.01, at 

85 (3d ed. 2008)), review denied, 170 Wn.2d 1003 (2010).  However, Reed did 

not object to this statement at trial.  Accordingly, Reed must demonstrate that the 

remark was so flagrant and ill-intentioned that no curative instruction would have 

been capable of neutralizing the resulting prejudice.  This he does not do.

       As our Supreme Court has recently determined, even where a prosecutor 

has engaged in far more egregious misconduct, a correct and thorough 

instruction can be sufficient to cure the resulting prejudice.  State v. Warren, 165 

Wn.2d 17, 28, 195 P.3d 940 (2008). In Warren, the prosecutor blatantly and 

repeatedly misstated the State's burden of proof during closing argument.  On 

three occasions, the prosecutor told the jury that "[r]easonable doubt does not 

mean give the defendant the benefit of the doubt."  Warren, 165 Wn.2d at 24-25.  

The court determined that this argument -- which "undermined the presumption of 

innocence" -- was clearly improper.  Warren, 165 Wn.2d at 26.  The court 

explained that "[h]ad the trial judge not intervened to give an appropriate and 

effective curative instruction, we would not hesitate to conclude that such a 

                                         - 25 - 

No. 66745-9-I/26

remarkable misstatement of the law by a prosecutor constitutes reversible 
error."13  Warren, 165 Wn.2d at 28.  However, because the trial court 

"interrupted the prosecutor's argument to give a correct and thorough curative 

instruction," the court determined that any resulting prejudice had been cured.  

Warren, 165 Wn.2d at 28.  

       Here, a similar curative instruction would have neutralized any prejudice 

resulting from the prosecutor's misstatement regarding the presumption of 

innocence.  This statement was not repeated to the jury; nor was it coupled with 

other obviously improper arguments.  Cf. State v. Evans, 163 Wn. App. 635, 643-

44, 260 P.3d 934 (2011). Accordingly, this misstatement is far less likely to have 

affected the jury's verdict than the prosecutor's comments at issue in Warren.  

We have no doubt that a simple instruction from the trial court indicating that the 

presumption of innocence may be overcome, if at all, only during the jury's 

deliberations would have been sufficient to overcome any prejudice resulting

from the prosecutor's remark.  Because the prosecutor's conduct was not so 

flagrant and ill-intentioned that any resulting prejudice could not have been 

neutralized by a curative instruction, reversal is unwarranted.
       Affirmed.14

       13 After defense counsel objected for a third time to the prosecutor's use of this 
argument, the trial court intervened to issue a lengthy curative instruction.  Warren, 165 Wn.2d 
at 25.  The court instructed the jury that the "reasonable doubt" standard required that a 
defendant be afforded the benefit of the doubt.  Warren, 165 Wn.2d at 25.  The court explained 
to the jury that "if you still have a doubt after having heard all of the evidence and lack of 
evidence . . . then the benefit of that doubt goes to the defendant, and the defendant is not 
guilty."  Warren, 165 Wn.2d at 25.
       14 Having considered all the submittals of the parties in our resolution of this case, we 

                                         - 26 - 

No. 66745-9-I/27

We concur:

deny the State's motion to strike Reed's statement of additional authorities.

                                         - 27 -