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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                        DIVISION ONE

STATE OF WASHINGTON,                        )       No. 67634-2-I
                                            )
              Respondent,                   )
                                            )
              v.                            )
                                            ) 
NATALIE INEZ RAY,                           )       UNPUBLISHED OPINION
                                            )
                                            )       FILED: May 29, 2012
              Respondent.                   )
                                            )

       Ellington, J.  --  Natalie Ray was convicted of first degree assault of a child. She 
raises numerous arguments, including admission of a statement without Miranda1

warnings, failure to ensure jury unanimity, double jeopardy, prosecutorial misconduct and 

ineffective assistance of counsel.  We affirm.

                                        BACKGROUND

       In 2004, when N.D. was about three years old, Child Protective Services (CPS) 

removed him from the care of his mother, Jennifer Dwyer.  He was placed with his step-

grandfather, Terry Dwyer (Dwyer) and Dwyer's girlfriend, Lisa Mundt.  Dwyer's adult son 

Chris lived with Dwyer and Mundt, and became N.D.'s primary caregiver.  Sometime 

during the next two years, Chris moved in with Natalie Ray.  N.D. spent much of his time 

at their home.

       1 Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 

No. 67634-2-I/2

       On October 22, 2007, when N.D. was five years old, Ray telephoned N.D.'s school 

and reported that he had been hit in the back with a jump rope by another child. School 

officials found an X-shaped mark and several other bruises.  After caseworkers from CPS 

examined N.D.'s injuries, police were called.

       Tacoma Police Department Officer O'Keefe responded.  He noted that, in addition 

to the injuries observed by school officials and CPS workers, N.D. had a bruise on his 

forehead and a swollen jaw.  He took N.D. into protective custody.

       Dr. Yolanda Duralde examined N.D.  She observed the bruise on his forehead, 

extensive bruising on his back, and "loop-marks" on both his thighs and buttocks.  N.D. 

had an X-shaped lesion on his back, apparently from a rope or belt.  He had bruises 

across his upper shoulder and "grab-mark" bruising on his left arm.  In Duralde's opinion,

the injuries probably could not have been inflicted by a child N.D.'s age, and most of the 

injuries had probably been inflicted within the previous week.  The loop mark bruises were 

better healed and probably older.  Duralde testified that bruises typically last no more than 

three weeks.  

       X-rays revealed healing fractures on each of N.D.'s arms.  Duralde estimated that 

the older of the two fractures had occurred in August 2007.

       Ray was charged with assault of a child in the first degree for incidents occurring 

between October 19, 2005 and October 18, 2007.

       At trial, five witnesses, including N.D., testified that N.D. lived with Ray during the 

charging period. N.D. testified that Ray bent his fingers back, hit him on the back with a 

coat hanger and belt on more than one occasion, and twisted his arm back until it hurt. 

                                                 2 

No. 67634-2-I/3

                                          DISCUSSION

                                       Miranda Warnings

       Officer Ellis and three other officers arrested Ray at her home.   Ellis explained to 

Ray she was being arrested for child abuse and that her three children would be placed in 

protective custody.  Ray was immediately handcuffed.  Before she was advised of her 

rights, she told the officers "she did not hit her kids" and that Ellis could talk to them and 
look at them to confirm this.2

       At trial, Ray sought to suppress this statement, contending it was incriminating 

because she denied hitting her kids before knowing that hitting was the nature of the 

alleged abuse.  The motion was denied.  Ray contends this was error.
       Miranda warnings must be given before a suspect in custody is interrogated.3  

Statements made in violation of this rule are inadmissible.4 A practice that police should 

know is reasonably likely to evoke an incriminating response amounts to an interrogation.5  

The determination that a statement was not the product of custodial interrogation is 
reviewed under a "clearly erroneous standard,"6 which means we reverse only if we are 

       2 Report of Proceedings (RP) (Jan. 12, 2009) at 30.

       3 Miranda, 384 U.S. at 444.

       4 Id.

       5 Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 
(1980).

       6 State v. Walton, 64 Wn. App. 410, 414, 824 P.2d 533 (1992).  Ray argues the 
clearly erroneous standard under Walton is no longer good law because the Ninth Circuit 
case upon which it relies, United States v. Booth, 669 F.2d 1231 (9th Cir. 1981), was 
overruled by United States v. Poole, 794 F.2d 462 (9th Cir. 1986).  But no Washington 
case has overruled Walton, and Washington appellate courts still apply the clearly 
erroneous standard.  See State v. Denney, 152 Wn. App. 665, 671, 218 P.3d 633 (2009).  
Ray points the court to State v. Solomon, 114 Wn. App. 781, 60 P.3d 1215 (2002), in 
which the court applied de novo review.  But Solomon addressed the issue of custody.  

                                                 3 

No. 67634-2-I/4

"'left with a definite and firm conviction that a mistake has been committed.'"7

       The question here is whether the statement resulted from a custodial interrogation.  

Ray contends her statement was "the logical response any reasonable officer should have 

expected after handcuffing someone, telling them their kids were being taken away and 
that they were being arrested for and had been accused of child abuse."8 The trial court 

reasoned that Ray's statement was "of a spontaneous nature" and "did not appear to be 
given in response to any questioning by the officer."9

       We agree.  Neither Ellis nor any other officer asked Ray any questions or made 

any statements that could be characterized as likely to produce an incriminating response.  

The officers did no more than take Ray into custody and state the crime charged.  The act 

of arrest is not a custodial interrogation.  Nor is it a practice likely to invoke an 

incriminating statement.  The court's determination was not error.

                                   Prosecutorial Misconduct

       Ray argues the prosecutor committed prejudicial misconduct in several ways.  To 
prevail, she must demonstrate the remark or conduct was both improper and prejudicial.10  

To establish prejudice where an objection was lodged, the defendant must show a 

Here, the parties do not disagree that Ray, who was handcuffed in her home and in the 
presence of three police officers, was in custody.  The question is solely whether the 
officers' actions constituted an interrogation.

       7 Denney, 152 Wn. App. at 671 (quoting State v. Handley, 54 Wn. App. 377, 380, 
773 P.2d 879 (1989)).

       8 Appellant's Br. at 45.

       9 RP (Jan. 13, 2009) at 177-78.

       10 State v. Carver, 122 Wn. App. 300, 306, 93 P.3d 947 (2004); see also State v. 
Stith, 71 Wn. App. 14, 19, 856 P.2d 415 (1993) (prosecutorial misconduct requires new 
trial only if it was prejudicial).

                                                 4 

No. 67634-2-I/5

substantial likelihood that the misconduct affected the jury.11 Failure to object constitutes 

a waiver unless the misconduct is "so flagrant and ill-intentioned that it evinces an 

enduring and resulting prejudice that could not have been neutralized by an admonition to 
the jury."12

       Statements Regarding "Truth." During closing argument, the prosecutor told the 

jury that the case "comes down to do you believe the defendant or do you believe 
[N.D.]?"13 He later argued that certain evidence raised questions about what really 

happened and that when N.D.'s injuries were discovered, nobody knew "what the real 
truth is," but that the truth was exposed when N.D. gave his first statement.14 The 

prosecutor also argued that the jurors' role was to "seek the truth" and reach "[a] just 
verdict."15  

       Ray asserts it was misconduct for the prosecutor to argue that N.D. was telling the 

truth because prosecutors may not argue that to acquit a defendant, the jury must 
conclude the State's witnesses testified falsely.16 Ray asserts that statements supporting 

the veracity of N.D.'s testimony "made it absolutely clear that the jurors were required to 
find [N.D.] was lying in order to acquit."17

       11 State v. Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984).

       12 State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997).

       13 RP (Jan. 29, 2009) at 1532.

       14 Id. at 1531.

       15 Id. at 1532, 1555.

       16 State v. Casteneda-Perez, 61 Wn. App. 354, 362-63, 810 P.2d 74 (1991); see 
also State v. Barrow, 60 Wn. App. 869, 875-76, 809 P.2d 209 (1991) ("liar arguments"
misstate the jury's role because the jury need not determine who is telling the truth and 
who is lying in order acquit or convict based on a reasonable doubt).

       17 Appellant's Br. at 53.

                                                 5 

No. 67634-2-I/6

       A prosecutor enjoys reasonable latitude in arguing inferences from the evidence, 
including inferences as to witness credibility.18 Here, the prosecutor never told the jury it 

had to find that N.D. had lied in order to acquit.  Ray failed to object below, and she 

presents no argument that the alleged misconduct was so flagrant and ill-intentioned that 

resulting prejudice could not have been cured by a limiting instruction.  

       Statements Regarding Evidence Not Admitted.  It is misconduct for a prosecutor to 

imply that if there were any question of the defendant's guilt, the defendant would not 
even be in court.19 But a prosecutor may reply to defense arguments. 20 As long as 

remarks do not go beyond what is necessary for that purpose and do not bring before the 
jury matters that are not in the record, they are not grounds for reversal.21

       During closing argument, defense counsel was critical of the State's investigation, 

claiming it was incomplete because the interviewer from the prosecutor's office did not 

thoroughly question N.D., there was no forensic evidence, and police stopped 

investigating once they arrested Ray and failed to investigate Dwyer or Tulio.

       In rebuttal, the prosecutor said the investigating officers continued to talk to other 

family members after Ray was arrested, including a witness the jury "didn't get to meet or 
hear from."22 He said the officers interviewed Dwyer despite having learned that N.D. did 

       18 State v. Gregory, 158 Wn.2d 759, 810, 147 P.3d 1201 (2006); State v. Brett, 126 
Wn.2d 136, 175, 892 P.2d 29 (1995) (prosecutor may argue an inference of credibility if it 
is based on the evidence).

       19 See Stith, 71 Wn. App. at 21-23. 

       20 State v. Dykstra, 127 Wn. App. 1, 8, 110 P.3d 758 (2005).

       21 Id.

       22 RP (Jan. 29, 2009) at 1617.

                                                 6 

No. 67634-2-I/7

not live with him, and that after that interview, "[t]hey were satisfied."23 He argued the 

investigation continued after Ray's arrest, and "as it turns out, based on that information, 
Terry Dwyer isn't charged with these crimes."24 Ray did not object.

       Ray now contends the prosecutor's response was excessive because it referred to 

a witness interview not on the record and because it implied Ray's guilt was 

predetermined because Dwyer was not charged.  We disagree.

       As noted above, the prosecutor may respond to the defense arguments and has 
wide latitude in arguing reasonable inferences from the evidence.25 The fact that Dwyer 

was interviewed after Ray was arrested was a fact before the jury.  Assuming the 

prosecutor's reference to a witness the jury "didn't get to hear from" and his statement that 

officers "were satisfied" were improper, Ray does not explain why any resulting prejudice 
could not have been cured by admonition to the jury.26

       Comments About Ray's Demeanor. A prosecutor may not express a personal 

opinion about the accused or attempt to persuade the jury to decide a case based upon 
emotion instead of evidence.27

       Ray asserts the prosecutor improperly expressed his personal opinions about 

       23 Id.

       24 Id. at 1618.

       25 Gregory, 158 Wn.2d at 860; Dykstra, 127 Wn. App. at 8.  A prosecutor must be 
careful to advance arguments that are based only on the evidence before the jury, but 
cannot be held to the most careful and precise use of words in the excitement of 
argument.  State v. Susan, 152 Wash. 365, 380, 278 P.149 (1929).

       26 See Stenson, 132 Wn.2d at 719.

       27 State v. McKenzie, 157 Wn.2d 44, 53-54, 134 P.3d 221 (2006) (quoting State v. 
Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 59 (1983)); State v. Belgarde, 110 Wn.2d 
504, 507, 755 P.2d 174 (1988).

                                                 7 

No. 67634-2-I/8

Ray's demeanor throughout trial.  She points to his cross-examination questions about 

whether she was trying to elicit sympathy by describing injuries from a car accident and 

whether she felt victimized by her arrest.  She also challenges as flagrant and prejudicial 

his closing argument that "from the State's perspective, [Ray's] weeping isn't for [N.D.]; it's 
for [herself]."28 The court overruled Ray's objection to this statement.

       The prosecutor may draw attention to the witness's demeanor in arguing 
credibility,29 and the jury was properly instructed that it was permitted to consider "the 

manner of the witness while testifying."30 However, the prosecutor indicated a personal 

belief ("from the State's perspective"31). This was improper, and the objection should have 

been sustained.  But we see no substantial likelihood that, given the general propriety of 

comments about demeanor, this statement influenced the jury to decide based upon 

emotion or upon the prosecutor's personal opinion rather than the evidence.  Rather, it 

was a clumsy way of positing the State's theory that Ray's emotionalism during trial was 

not that of the wrongly accused.  It is not grounds for reversal.

       Comments About Defense Strategy. Ray next asserts the prosecutor made 

improper comments by suggesting that the defense strategy was to incite sympathy for 

Ray and to shift the blame for the crime to other people.  The prosecutor argued, "This 

case is also about denial.  And I hope at the end of this trial, that there will also be some 
measure of accountability."32 He referred to the defense strategy as "desperate."33  

       28 RP (Jan. 29, 2009) at 1539.

       29 State v. Johnson, 113 Wn. App. 482, 492, 54 P.3d 155 (2002).

       30 Clerk's Papers at 96.

       31 RP (Jan. 29, 2009) at 1539.

       32 Id. at 1524.

                                                 8 

No. 67634-2-I/9

Defense counsel did not object.

       Ray contends these comments denigrated counsel and the defendant and were 

"'intend[ed] to promote a sense of partisanship with the jury that is incompatible with the 
jury's function' of deciding based on the facts of the case, rather than emotion."34 But Ray 

cites no authority holding such comments are improper, and does not persuade us the 

remarks exceeded the bounds of proper argument.  In any event, they were not so flagrant 
and ill-intentioned as to warrant reversal.35

       Failure To Prepare Witness For Trial. The court excluded evidence that Ray had 

outstanding warrants at the time of her arrest.  Officer Ellis testified, however, that one 

reason for having a patrol unit present when she arrested Ray was that "we knew Natalie 
had some warrants."36 Defense counsel objected and moved to strike.  The court 

sustained the objection and struck the last response.

       During closing argument, the prosecutor indirectly referred to Ray's prior legal 

troubles, saying, "They knew they would get in trouble for what they were doing.  Natalie 
[Ray] had already been in trouble."37 Upon defense objection, the court instructed the jury 

not to consider any evidence that was not admitted.

       It is every attorney's duty to prepare witnesses for trial, including advising them of 
any orders excluding evidence.38 Ray contends the prosecutor committed prejudicial 

       33 Id. at 1545.

       34 Appellant's Br. at 64 (quoting State v. Neal, 361 N.J. Super. 522, 537, 826 A.2d 
723 (2003)).

       35 See Stenson, 132 Wn.2d at 719.

       36 RP (Jan. 20, 2009) at 611.

       37 RP (Jan. 29, 2009) at 1528.

       38 State v. Montgomery, 163 Wn.2d 577, 592, 183 P.3d 267 (2008).

                                                 9 

No. 67634-2-I/10

misconduct by failing to advise Officer Ellis of the order suppressing evidence of Ray's 

prior warrants and that the prosecutor exacerbated that prejudice when, during closing, he 
referred to Ray having "already been in trouble,"39 implying that Ray had been in the same 

kind of trouble before.

       We disagree.  We presume the jury followed the court's instructions to disregard 
improper testimony and to consider only admitted evidence.40

                                    Refusal to Grant Mistrial

       Based on Officer Ellis's testimony about Ray's prior warrants, defense counsel 

moved for a mistrial, or in the alternative, a limiting instruction.  The court denied a 

mistrial, but, as noted above, instructed the jury not to consider evidence that was not 

admitted.  Ray contends the testimony and prosecutor's comment were so inherently 

prejudicial that the court's offer of a curative instruction was illusory.

       A mistrial is a matter for the court's discretion and is appropriate only when a trial 
irregularity denies the defendant a fair trial.41 Whether an error is prejudicial enough to 

warrant a mistrial depends upon the seriousness of the irregularity, whether it involved 
cumulative evidence, and whether the trial court took steps to avoid prejudice.42 A 

curative instruction is insufficient when irregular evidence is inherently prejudicial and 

       39 RP (Jan. 29, 2009) at 1528.

       40 See State v. Warren, 165 Wn.2d 17, 29, 195 P.3d 940 (2008).

       41 State v. Greiff, 141 Wn.2d 910, 921, 10 P.3d 390 (2000); State v. Whitney, 78 
Wn. App. 506, 515, 897 P.2d 374 (1995); see also State v. Bluehorse, 159 Wn. App. 410, 
435, 248 P.3d 537 (2011) (an appellate court upholds trial court's decision to deny a 
mistrial motion unless the irregularities so tainted the proceeding that the defendant was 
denied a fair trial).

       42 Greiff, 141 Wn.2d at 921.

                                                10 

No. 67634-2-I/11

likely to "impress itself upon the minds of the jurors."43  

       The stricken testimony and comment were improper, but were not so prejudicial as 

to require a mistrial.  The court gave a curative instruction and the defense did not again 

request a mistrial.  There was no abuse of discretion.
                                        Jury Unanimity44

       A criminal defendant has the right to a unanimous jury verdict.45 When the State 

presents evidence of multiple acts of misconduct, any one of which could form the basis of 

a count charged, and the State does not elect which of such acts it relies upon for a 
conviction, then the court must instruct the jury to agree on a specific criminal act.46  

       To show assault of a child in the first degree, the State had to prove Ray committed 

an intentional assault against N.D. causing substantial bodily harm, and that Ray had 

previously engaged in a pattern or practice of assaulting N.D. resulting in bodily harm 
greater than transient physical pain or minor temporary marks.47 Ray points out that both 

she and Chris testified that in July and/or August of 2007, they saw N.D.'s father Tulio 

assault him and yank him up by his arms. Ray contends the evidence thus indicates 

       43 State v. Escalona, 49 Wn. App. 251, 255, 74 P.2d 190 (1987).

       44 The parties agree Ray may raise this issue for the first time on appeal as 
manifest error affecting a constitutional right.  RAP 2.5(a)(3); State v. Scott, 110 Wn.2d 
682, 686-87, 757 P.2d 492 (1988); State v. Kitchen, 110 Wn.2d 403, 409, 756 P.2d 105 
(1988) (criminal defendants have constitutional right to unanimous jury verdict).

       45 State v. Coleman, 159 Wn.2d 509, 511, 150 P.3d 1126 (2007).

       46 Id.; State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984).

       47 The statute reads, "A person eighteen years of age or older is guilty of the crime 
of assault of a child in the first degree if the child is under the age of thirteen and the 
person .  . .  [i]ntentionally assaults the child and . . . [c]auses substantial bodily harm, and 
the person has previously engaged in a pattern or practice . . .  [of] assaulting the child 
which has resulted in bodily harm that is greater than transient physical pain or minor 
temporary marks." RCW 9A.36.120(1)(b)(ii)(A).

                                                11 

No. 67634-2-I/12

different episodes of assault by different people.  She challenges the court's failure to 

provide a unanimity instruction.  

       In State v. Kiser, we held that a unanimity instruction may be required in child 

assault cases when the defendant may have different defenses to different episodes of 

assault: 

              A potential problem for juror unanimity arises under this statute if the 
       evidence discloses more than one distinct episode of assaultive conduct 
       during an extended charging period.  For example, the evidence may 
       disclose one series of assaults on the child at one time, then another series 
       weeks or months later, perhaps in a different location where different 
       people had access to the child.  The defendant may have different 
       defenses as to these different episodes.  If so, it is possible some jurors will 
       believe a defendant is accountable for only the first series of assaults, 
       while other jurors will believe the defendant is accountable for only the 
       second series of assaults.  When such circumstances are present, the 
       court should give a unanimity instruction or require the State to elect.[48]

       Here, the State presented evidence of injuries inflicted in the weeks immediately 

before the disclosures in October 2007, including the X-shaped mark on N.D.'s back and 

the bruises on N.D.'s back, bottom, and forehead.  There is no evidence that Tulio had the 

opportunity to inflict injuries during that time.  But the State also presented evidence of 

healing fractures to both N.D.'s arms, thought to have occurred as early as August 2007

when Tulio could have had contact with ND.  Given this evidence, the court should have 

provided a unanimity instruction.

       The State argues, however, that omission of such an instruction was harmless

because no rational juror could have a reasonable doubt that Ray committed an assault 

       48 State v. Kiser, 87 Wn. App. 126, 130, 940 P.2d 308 (1997) (unanimity instruction 
not required because evidence did not disclose more than one count of first degree 
assault of a child and there was nothing to suggest defenses were different with respect to 
any particular segment of the charging period). 

                                                12 

No. 67634-2-I/13

on N.D. and engaged in a previous pattern or practice of assaulting him.49 We agree.

        The jurors need not have been unanimous about which of two or more injuries 

evidenced a "principal assault" versus the preceding "pattern or practice" of assault, but 

they must have unanimously agreed on which injuries or incidents they relied upon to 

convict.

       As described above, overwhelming evidence established that Ray repeatedly 

assaulted N.D. in the weeks leading up to discovery of his injuries.  The only injuries 

possibly inflicted by Tulio occurred in July or August, whereas all the bruising observed by 

Dr. Duralde had been inflicted during the month of October.  No rational juror could have 

had a reasonable doubt that Ray inflicted injuries upon N.D. during the week they were 

discovered and also within the previous three weeks.  Under these circumstances, the 

court's failure to provide a unanimity instruction was harmless beyond a reasonable 

doubt. 

                               Ineffective Assistance of Counsel

       Ray argues she was deprived of a fair trial because of ineffective assistance of 

counsel at various points during trial.  The only meaningful argument she presents is her 

attorney's failure to propose a unanimity instruction.

       As discussed above, even if counsel had requested a unanimity instruction and the 

court had given that instruction, it would not have changed the outcome.  Ray thus fails to 

show she was prejudiced by her attorney's failure to request that instruction.

       49 See generally Coleman, 159 Wn.2d at 512; Kiser, 87 Wn. App. at 130.  Failure to 
give a unanimity instruction is subject to a harmless error analysis.  Kitchen, 110 Wn.2d at 
405-06.

                                                13 

No. 67634-2-I/14

                                       Double Jeopardy50

       Defendants are entitled to be free from double jeopardy, including multiple 
convictions for the same conduct.51 Ray assigns error to the court's failure to instruct the 

jury that it had to rely on separate, distinct acts in finding the principal assault and the 

evidence of a pattern or practice of assaultive behavior.  She contends this violates her 

right to be free from double jeopardy.

       Ray is incorrect.  She was charged with one count of first degree assault of a child; 

there were not multiple counts to which the same incident of assault could have been 

attributed.  The instructions clearly directed the jury that, to convict Ray, it must find that 

(1) "the defendant intentionally assaulted N.D." and (2) "the defendant had previously
engaged in a pattern or practice of assaulting N.D."52 The word "previously" is not 

unclear.  The jury was plainly advised that the principal assault and the previous 

assaultive behavior must be separate acts.

       Affirmed.

WE CONCUR:

       50 The parties agree Ray may raise this issue for the first time on appeal as it 
implicates a manifest error affecting a constitutional right.  RAP 2.5(a)(3); State v. Carter, 
156 Wn. App. 561, 565, 234 P.3d 275 (2010).

       51 In re Personal Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004).

       52 Clerk's Papers at 109 (emphasis added).

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No. 67634-2-I/15

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