State Of Washington, Respondent V. Emanuel Jaime-rodriguez, Appellant

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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON,
Respondent,
v.
EMANUEL JAIME-RODRIGUEZ,
Appellant.
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No. 79189-3-I
UNPUBLISHED OPINION
A NDRUS , A.C.J. — A jury found Emanuel Jaime-Rodriguez guilty of second
degree felony murder in connection with the assault and resultant death of Celina
Petersen. 	Jaime-Rodriguez appeals his conviction, arguing the “to convict”
instruction required the State to prove he assaulted Petersen and the evidence
that he acted as an accomplice is insufficient to sustain the conviction. He further
argues the trial court abused its discretion when it denied his request for a mistrial
based on one witness’s testimony.
We conclude the “to convict” instruction allowed the State to prove Jaime-
Rodriguez committed the assault as either the principal or an accomplice and the
State presented sufficient evidence to support the conviction. 	We also conclude
the trial court did not abuse its discretion when it denied his request for a mistrial
because the statement, even if improper, did not prejudice Jaime-Rodriguez. We
thus affirm.

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FACTS
At approximately 8:00 a.m. on February 15, 2015, a local resident found
Celina Petersen’s body in an alley in the South Park neighborhood of Seattle. An
autopsy revealed Petersen died by significant blunt force trauma to her head, stab
wounds that penetrated her skull, and manual strangulation. 	The stab wounds
were consistent with a screwdriver found near Petersen’s body.
Security videos from nearby businesses and a private residence revealed
three men—one wearing a blue checkered shirt—with Petersen at various times
throughout the early morning hours and in different locations in the neighborhood,
including a Union 76 gas station. 	The security cameras last captured Petersen
walking northbound on 14th Avenue South toward South Cloverdale Street at 4:45
a.m. 	Petersen was carrying a cup of coffee, purchased at the Union 76 station,
and her purse.1
Within two minutes, the three men were seen following Petersen. 	A
witness, as well as the security cameras, observed the men together at various
times between 5:00 a.m. and 5:45 a.m. near the alley where Petersen’s body was
later found.
Police officers identified one of the men in the security videos as Jaime-
Rodriguez. Homicide Detective Jason Kasner met with Jaime-Rodriguez several
days after the murder. 	When shown video still images taken from a security
camera at the Union 76 gas station, Jaime-Rodriguez identified himself as the man
wearing the blue checkered shirt. 	He identified the woman in the photo as
1 The police did not find Petersen’s purse at the crime scene.

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Petersen. When Detective Kasner showed Jaime-Rodriguez photos of the other
two men with him that night, he identified one as Cristen Parada-Rivera.2 Jaime-
Rodriguez would not identify the third man.
Detective Kasner identified another woman—seen walking toward the
Union 76 at approximately 5:05 a.m.—as Tobi Carroll, a local homeless camp
resident. He also saw Carroll walking westbound on South Cloverdale Street, near
the entrance to the alley where Petersen’s body was found, between 5:18 a.m.
and 5:22 a.m. that morning.
Carroll was a friend of Petersen’s and an acquaintance of Jaime-Rodriguez,
whom she knew by the name “Wedo.” While out walking in the early morning hours
of February 15, Carroll saw Jaime-Rodriguez standing on a sidewalk with two other
people. 	Jaime-Rodriguez was standing close to one person who seemed to be
holding another’s hands behind their head. Carroll heard someone scream, “help,
help, somebody help me,” before hearing the person ask, “why do you have to be
so mean?” She then heard “one final . . . cry” and fled toward the Union 76.
When Carroll realized the Union 76 was closed, she panicked and ran back
toward her home and her husband. When she backtracked and got to the corner
of the alley, she saw Jaime-Rodriguez drop a large, heavy item she thought was
a 50-gallon trash bag in the alley.
Over a year after Petersen’s murder, Detective Kasner met and interviewed
Petersen’s friend, Jeremy Hall, who was in jail pending trial on a robbery charge.
2 Forensic testing revealed both Petersen’s and Parada-Rivera’s DNA on the screwdriver found
near Petersen’s body. Petersen’s and Parada-Rivera’s DNA was also found on a belt laying on
the ground in the alley.

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Hall knew Jaime-Rodriguez from the neighborhood, and the two had taken drugs
together on several occasions. 	Jaime-Rodriguez told Hall that he had been
questioned by the police about Petersen’s murder and that he was afraid he would
be charged with the murder. Then during another conversation, he told Hall that
Petersen had stolen money from him that he needed for drugs and that when he
became “dope sick,” he tracked her down, confronted her about the theft, and beat
her after seeing her coming back from a gas station. 	According to Hall, Jaime-
Rodriguez said that “it wasn’t supposed to go down like that.”
Officers arrested Parada-Rivera and Jaime-Rodriguez in connection with
Petersen’s death. 	The State charged both Parada-Rivera and Jaime-Rodriguez
with first degree murder.
In a post-arrest interview, Jaime-Rodriguez admitted that he saw an
unconscious Petersen in the alley that night, that he saw two men beating her, and
that he heard Petersen’s screams. Jaime-Rodriguez denied assaulting Petersen
himself but admitted he was present, pacing back and forth, and told the other men
to “get their money” and “hurry the f*** up.”
Parada-Rivera pleaded guilty to murdering Petersen. 	The State then
amended the information against Jaime-Rodriguez, charging him with first degree
murder (count 1) and the alternative crime of second degree murder under
Washington’s felony murder statute, RCW 9A.32.050(1)(b) (count 2).
At Jaime-Rodriguez’s trial, Parada-Rivera testified he lived in the South
Crest Apartments at the corner of 12th Avenue South and South Cloverdale Street,
in close proximity to the alley where Petersen’s body was found. He admitted he

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worked and was friends with Jaime-Rodriguez. He further testified he was hanging
out with Jaime-Rodriguez and a third man, an African American he claimed he had
never met before, on the night of February 14 and into the morning of February 15.
Parada-Rivera testified he was drunk and turned into an alley to urinate
when Petersen demanded money from him. Parada-Rivera said he became angry
and hit Petersen. 	He was unclear, however, on whether he hit her with his fist,
with a stone, or with a piece of concrete. He also testified that as he left the alley,
the African American then began attacking Petersen with a screwdriver. Parada-
Rivera denied stabbing Petersen with the screwdriver, despite the presence of his
DNA on it. Parada-Rivera testified Jaime-Rodriguez was not present in the alley
when he was hitting Petersen and assumed Jaime-Rodriguez had gone to Parada-
Rivera’s apartment to go to sleep.
But Parada-Rivera’s trial testimony was inconsistent with the version of
events he gave police and with Jaime-Rodriguez’s statements to police. Parada-
Rivera initially told detectives he did not know Jaime-Rodriguez. He also told them
that he—and he alone—followed Petersen into the alley to take money from her.
Parada-Rivera recounted to detectives that he hit Petersen with the screwdriver
when she threw herself at him. 	He also stated that Petersen was alive and
standing when he fled the scene. 	The medical examiner, however, testified that
once Petersen received the stab wound through her skull, it would have been a
physical impossibility for her to remain conscious given the severity of the brain
damage the screwdriver caused.

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The jury found Jaime-Rodriguez guilty of count 2, second degree felony
murder. It could not reach a verdict as to count 1, first degree murder, but found
Jaime-Rodriguez guilty of the lesser included crime of second degree intentional
murder. 	It also found that Jaime-Rodriguez was armed with a deadly weapon
during the commission of the crimes.
Jaime-Rodriguez moved for an arrest of judgment under CrR 7.4,3 arguing
there was insufficient evidence to support the convictions. 	Jaime-Rodriguez
argued that there was no direct evidence linking him to the murder, Carroll was not
a credible witness, and Hall’s testimony was contradicted by the security videos
because the security cameras did not capture a confrontation between Jaime-
Rodriguez and Petersen. 	Jaime-Rodriguez further argued there was insufficient
evidence to sustain a conviction based on an accomplice theory. 	The trial court
denied the motion because there was an “extraordinary amount of circumstantial
evidence which is just as valuable and not weighted any differently than direct
evidence,” and because Jaime-Rodriguez had confessed to Hall that he had
committed the murder. 	The State subsequently moved to vacate the conviction
for count 1, second degree intentional murder, on double jeopardy grounds. The
trial court dismissed count 1.
The court sentenced Jaime-Rodriguez to 278 months in prison on count 2,
which included a 24-month weapons enhancement. Jaime-Rodriguez appeals his
conviction.
3 “Arrest of Judgments. Judgment may be arrested on the motion of the defendant for the following
causes: (1) Lack of jurisdiction of the person or offense; (2) the indictment or information does not
charge a crime; or (3) insufficiency of the proof of a material element of the crime.” CrR 7.4(a).

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ANALYSIS
Jaime-Rodriguez makes three arguments on appeal. 	First, he maintains
Instruction 18—the “to convict” instruction for the felony murder charge—required
the State to prove, and the jury to find, that Jaime-Rodriguez acted as a principal
in Petersen’s assault. 	Second, he contends the State presented insufficient
evidence that he acted as either a principal or an accomplice in Petersen’s assault
and murder. 	Finally, he asserts the trial court abused its discretion in denying
Jaime-Rodriguez’s motion for a mistrial based on a statement Hall made during
his trial testimony.
Felony Murder “To Convict” Instruction
Jaime-Rodriguez first argues the language of Instruction 18, the “to convict”
instruction, required the State to prove he acted as a principal in Petersen’s
assault. He contends the jury instruction did not permit the jury to find him guilty
of assault as an accomplice. We disagree and conclude the State was not required
to prove Jaime-Rodriguez was the principal in Petersen’s assault; the jury was
instructed on accomplice liability and could find Jaime-Rodriguez guilty of assault
as either a principal or an accomplice.
In a criminal prosecution, the State bears the burden of proving all of the
elements of the crime charged. State v. Teal, 152 Wn.2d 333, 337, 96 P.3d 974
(2004). In this case, Instruction 17 defined second degree murder:
A person commits the crime of murder in the second degree
when he or she commits the crime of [a]ssault in the [s]econd
[d]egree and in the course of and in furtherance of such crime he or
she or an accomplice causes the death of a person other than one
of the participants.

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And Instruction 18 outlined the elements of the charged crime:
To convict the defendant of the crime of felony murder in the
second degree, as charged in Count [2], each of the following
elements of the crime must be proved beyond a reasonable doubt:
(1) 	That on or about February 15, 2015, the defendant
committed the crime of [a]ssault in the [s]econd [d]egree;
(2) 	That the defendant or an accomplice caused the death of
Celina Petersen in the course of and in furtherance of such crime;
(3) 	That Celina Petersen was not a participant in the crime of
[a]ssault in the [s]econd [d]egree; and
(4) 	That 	any 	of 	these 	acts 	occurred 	in 	the 	State 	of
Washington.
Jaime-Rodriguez contends that by omitting the words “or an accomplice”
from element (1) of this instruction, the trial court effectively required the State to
prove Jaime-Rodriguez assaulted Petersen himself. 	It is well-established that
when an element that increases the burden of proof is added to a jury instruction,
it becomes the law of the case if the State does not object. State v. Hickman, 135
Wn.2d 97, 102, 105, 954 P.2d 900 (1998). 	But Hickman does not control here
because that case did not address accomplice liability.
Jaime-Rodriguez’s argument was effectively rejected by our Supreme Court
in Teal. 	In that case, the defendant claimed the robbery “to convict” instruction
required the State to prove he had committed the crime as the principal because
the words “or an accomplice” were missing from the instruction. Teal, 152 Wn.2d
at 337. The court held that accomplice liability is neither an element of the crime,
nor an alternative means of committing a crime. Id. at 338. And it further held that
the jury need not reach unanimity on whether a defendant acted as a principal or

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an accomplice in the crime for which the defendant was charged as long as it is
convinced the alleged crime was committed and the defendant participated in it.
Id. 	at 	338-39. 	For 	these 	reasons, 	when 	a 	separate 	instruction 	describes
accomplice liability, a “to convict” instruction need not include a reference to
accomplice liability, and the State may rely on this theory. Id. at 339.
As in Teal, the jury instructions here accurately stated the law and did not
add an unnecessary element to Instruction 18. Under Instruction 18, the jury had
to find that Jaime-Rodriguez committed the crime of assault. The jury could have
decided Jaime-Rodriguez did so personally. 	Or under the separate accomplice
liability instruction,4 the jury could have found that Jaime-Rodriguez committed the
crime of assault as an accomplice. 	CP 93. 	And Instruction 17 told the jury that
Jaime-Rodriguez could be found guilty of murder in the second degree if in the
course of the assault, he or an accomplice caused Petersen’s death.
4 Instruction 9 provided:
A person is guilty of a crime if it is committed by the conduct of another
person for which he or she is legally accountable. A person is legally accountable
for the conduct of another person when he or she is an accomplice of such other
person in the commission of the crime.
A person is an accomplice in the commission of a crime if, with knowledge
that it will promote or facilitate the commission of the crime, he or she either:
(1) solicits, commands, encourages, or requests another person to commit
the crime; or
(2) aids or agrees to aid another person in planning or committing the
crime.
The word “aid” means all assistance whether given by words, acts,
encouragement, support, or presence. A person who is present at the scene and
ready to assist by his or her presence is aiding in the commission of the crime.
However, more than mere presence and knowledge of the criminal activity of
another must be shown to establish that a person present is an accomplice.
A person who is an accomplice in the commission of a crime is guilty of
that crime whether present at the scene or not.

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It is true that the “to convict” instruction mentioned accomplice liability in
element (2) of the instruction. 	But it did so to be consistent with Instruction 17.
And neither Hickman nor Teal stand for the proposition that when accomplice
liability is mentioned in one element of a “to convict” instruction, it cannot apply to
crimes described in other elements of the same instruction.
We conclude the State did not have the burden of proving that Jaime-
Rodriguez acted as the principal in Petersen’s assault.
Sufficiency of the Evidence of Felony Murder
Jaime-Rodriguez next argues that there was insufficient evidence for a jury
to convict him of second degree murder as either a principal or an accomplice. “A
reviewing court will reverse a conviction for insufficient evidence only if no rational
trier of fact could find that the State met its burden.” Teal, 152 Wn.2d at 337. When
a defendant challenges the sufficiency of the evidence, he admits the truth of all of
the State’s evidence. State v. Cardenas-Flores, 189 Wn.2d 243, 265, 401 P.3d 19
(2017). 	We view the evidence in the light most favorable to the State, drawing
reasonable inferences in the State’s favor. 	Id. at 265-66. 	“Circumstantial and
direct evidence are to be considered equally reliable.” 	Id. 	And credibility
determinations are left to the jury and are not subject to review. Id.
Here, there was ample evidence Jaime-Rodriguez actively participated in
Petersen’s assault. 	Parada-Rivera and Jaime-Rodriguez both admitted that
Jaime-Rodriguez was present at some point in the early hours of February 15. And
while Parada-Rivera claimed Jaime-Rodriguez left the scene before he began
hitting Petersen, Carroll, the security videos, and Hall told a different story. Carroll

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saw Jaime-Rodriguez immediately before she heard Petersen’s screams and calls
for help. 	Carroll later saw Jaime-Rodriguez placing a large object in the alley
where Petersen’s body was found. 	A security video, in which Carroll is walking
toward the Union 76 gas station, demonstrated she was present in the area at the
same time as Jaime-Rodriguez and Parada-Rivera. 	Based on a correlation of
when Carroll was seen in the video footage and her testimony that she saw Jaime-
Rodriguez with two other people on the street and then later in the alley, there is
ample circumstantial evidence that Jaime-Rodriguez did not leave the scene
before the assault.
Additionally, in a police interview, Jaime-Rodriguez told detectives that he
saw Petersen being beaten, that he heard Petersen’s screams, and that he saw
Petersen’s body in the alley. 	He admitted to police he told the men beating
Petersen to “hurry” and get their money. 	This is direct evidence that Jaime-
Rodriguez was actively encouraging his friends to hasten their assault of Petersen.
Jaime-Rodriguez’s admission that he was in the alley that morning for any amount
of time, along with the security videos, contradicted Parada-Rivera’s testimony that
Jaime-Rodriguez left and returned to Parada-Rivera’s apartment before the
murder. 	Parada-Rivera’s account was further put into question based on Jaime-
Rodriguez’s admission that he saw Petersen in the alley and assumed she was
unconscious.
The extensive nature of Petersen’s injuries also supports an inference that
more than one individual was involved in her assault. Petersen had abrasions and
contusions on her hands, upper back, face, neck, hips, and buttocks. There were

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30 pattern-type abrasions on her buttocks, arguably consistent with the type of
marks left by being beaten with a belt. In addition to the stab wound penetrating
her skull, she had stab wounds to her right hand and to the left side of her head.
Petersen also had fractured ribs, and there was evidence of manual strangulation
around her neck and significant blunt force trauma to her head, the latter causing
fractures to her skull. 	When the medical examiner examined Petersen’s skull to
identify the implement used, the skull was so fragmented she could not completely
reconstruct it.
This 	evidence 	is 	consistent 	with 	a 	brutal 	attack 	by 	more 	than 	one
individual—one pummeling Petersen’s body and face, another beating her with a
belt, and a third stabbing her with the screwdriver. The security video supports an
inference that all three men—Jaime-Rodriguez, Parada-Rivera, and the third
unidentified man—participated in the assault. The security cameras captured the
three men following Petersen at 4:45 a.m., captured Carroll in the vicinity of the
alley where she saw Jaime-Rodriguez at approximately 5:22 a.m., and captured
Jaime-Rodriguez, with Parada-Rivera and the third man, walking away from the
alley at 5:26 a.m.
Finally, 	Hall 	testified 	Jaime-Rodriguez 	admitted 	to 	beating 	Petersen
because 	she 	stole 	money 	from 	him. 	While 	Jaime-Rodriguez 	attacks 	this
testimony, the jury was aware that Hall’s credibility was at issue. 	Hall testified
against Jaime-Rodriguez in exchange for an agreement with the State to reduce a
robbery charge, thereby eliminating the risk he would be convicted of his third
strike offense and sentenced to life in prison. The jury was aware of this deal and

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had to assess Hall’s credibility in light of it. We will not review the jury’s credibility
determination on appeal. Duc Tan v. Le, 177 Wn.2d 649, 670, 300 P.3d 356 (2013)
(“Deference to factual determinations that turn on credibility assessment is
essential because of the fact finder’s unique opportunity to observe and weigh
witness testimony.”).
Based on the testimony of Hall and Carroll, as well as the security videos
and Jaime-Rodriguez’s own admissions, a reasonable jury could conclude that
Jaime-Rodriguez was guilty of second degree felony murder as either a principal
or an accomplice. We thus conclude that the State presented sufficient evidence
for a jury to conclude that Jaime-Rodriguez committed the crime of assault against
Petersen and that he or an accomplice caused her death in the course of that
assault.5
Defense Motion for Mistrial
Finally, Jaime-Rodriguez contends the trial court abused its discretion by
denying his motion for a mistrial, which was based on Hall mentioning that Jaime-
Rodriguez was in jail for assaulting his girlfriend, Liz. Because the trial court struck
the inadmissible testimony and instructed the jury to disregard it, Jaime-Rodriguez
was not prejudiced by this testimony, and the trial court did not abuse its discretion
in denying the motion for a mistrial.
“The trial court should grant a mistrial only when the defendant has been so
prejudiced that nothing short of a new trial can ensure that the defendant will be
5 Jaime-Rodriguez challenges the sufficiency of the evidence supporting the vacated murder
conviction in count 1. In light of our conclusion that sufficient evidence supports the felony murder
conviction in count 2, we need not address his challenge to count 1.

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fairly tried.” 	State v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012). 	“We
review the trial court’s denial of a mistrial for abuse of discretion, and we find abuse
only ‘when no reasonable judge would have reached the same conclusion.’” Id.
(internal quotation marks omitted) (quoting State v. Hopson, 113 Wn.2d 273, 284,
778 P.2d 1014 (1989). 	“In determining the effect of an irregularity, we examine
(1) its seriousness; (2) whether it involved cumulative evidence; and (3) whether
the trial court properly instructed the jury to disregard it.” 	Hopson, 113 Wn.2d at
284. 	In certain situations, “curative instructions cannot remove the prejudicial
effect of evidence of other crimes.” 	Id. 	But, “in the context of a given case,
evidence of other crimes may not affect the outcome of the trial.” 	Id. at 285. 	In
those cases, the trial court may properly deny the defendant’s motion for a mistrial.
Id.
Over six months after Petersen’s murder, Hall and Jaime-Rodriguez were
held in the same housing unit at the King County Jail. The State argued that while
in jail, Jaime-Rodriguez told Hall that “he had done the same thing to [Petersen]
as he did to Liz and that he hoped he did not get charged with murder.” 	Jaime-
Rodriguez sought to exclude any testimony that Jaime-Rodriguez had committed
acts of domestic violence against his girlfriend, Liz. 	But the State sought to
introduce this statement through Hall, as it put into context the reason why Jaime-
Rodriguez feared being charged with Petersen’s murder. The trial court excluded
any reference to domestic violence, with the State’s agreement. Defense counsel
did not specifically object to or raise a concern about the specific statement the
State indicated it wished to introduce through Hall.

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In 	the 	State’s 	opening, 	the 	prosecutor 	described 	Jaime-Rodriguez’s
conversations with Hall, stating:
They had a second conversation. 	This was in mid to late
September of 2015 when they were both in King County Jail
together. Hall noticed that [Jaime-Rodriguez] was acting strangely.
He wasn’t coming out of his room, and so he went and he asked him
what was wrong. [Jaime-Rodriguez] told him that he was afraid that
he was going to be picked up and charged with [Petersen’s] murder.
He said that he had done the same thing to a woman named Liz as
he had done to [Petersen], and that was why he was worried he
would be charged with murder.
Jaime-Rodriguez raised no objection to this statement.
Before Hall took the stand, the State informed the trial court it had reminded
Hall not to mention Jaime-Rodriguez’s domestic violence history. Defense counsel
corroborated this, noting he had seen the prosecutor reminding Hall not to mention
domestic violence in his testimony.
During Hall’s testimony about the conversation with Jaime-Rodriguez in jail,
Hall testified Jaime-Rodriguez said he was stressed because he “beat up Liz.” The
trial court interrupted Hall’s testimony, as defense counsel objected to this
statement. 	The trial court instructed the jury to disregard the statement and any
comments about “Liz.”
Jaime-Rodriguez moved for a mistrial based on this statement. 	The trial
court denied the motion, finding Hall had not intentionally violated any order in
limine, and the curative instruction resolved any potential prejudice. The trial court
instead offered to give a further curative instruction, but there is no indication that
defense counsel accepted the court’s offer.
Jaime-Rodriguez contends the trial court abused its discretion when it
denied his motion for a mistrial. 	He further argues the trial court used the wrong

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standard, namely whether the improper statement was intentional, instead of
whether the statement rendered the proceeding unfair. We disagree with Jaime-
Rodriguez’s characterization of the trial court’s analysis and conclude the trial court
correctly determined that Hall’s statement did not require a mistrial.
When Jaime-Rodriguez moved for a mistrial, his counsel noted the court
had ruled that there would be “no discussions about domestic violence inciden[ts],
nor assaults on Liz, the individual who was identified.” 	Counsel maintained Hall
was advised of the court’s ruling before taking the stand, and accused Hall of
engaging in “a deliberate act . . . to get in damaging testimony against [Jaime-
Rodriguez] because of the animosity he has towards him.” 	Counsel argued the
intentional statement prejudiced Jaime-Rodriguez.
In response to this specific argument, the State argued there was no basis
to contend the statement was intentional. 	And it argued it was under the
impression that it was permitted to elicit testimony from Hall that Jaime-Rodriguez
told him, “I did the same to Liz.” The State reminded the court that the prosecutor
had actually referred to this specific testimony in opening without any objection by
the defense.
The trial court ruled, “I don’t think we are at mistrial level.” In responding to
the defense contention that Hall knowingly injected inadmissible evidence into the
record, the court noted that although there was clear direction to counsel that there
would be no mention of domestic violence incidents, the court did not perceive Hall
as purposefully trying to violate the court’s order in limine. 	Thus, the reason the

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court found no intentional misconduct on the part of the witness was only because
the accusation was raised by the defense.
But the court went further and discussed the issue of whether the statement
made the proceeding so unfair as to warrant a mistrial. 	It noted that the court
caught the testimony quickly and that the jury was immediately told to disregard it.
And while Carroll testified earlier in the case that she knew Jaime-Rodriguez
through a former girlfriend named Liz, the reference was brief. 	The trial court
further noted it provided a curative instruction and was willing to give a further
written instruction at the close of trial if the defense wished. 	The court clearly
concluded it was unlikely the jury would be influenced by Hall’s statement such
that a mistrial was the only available remedy.
Although 	we 	question 	whether 	Jaime-Rodriguez 	preserved 	the 	issue
properly by failing to object to the State’s opening statement, we nevertheless
conclude that Hall’s single comment was not so prejudicial that nothing short of a
new trial can ensure that Jaime-Rodriguez receives a fair trial.
This case is similar to Hopson. There, the prosecution located a last minute
witness, and when asked how long the victim had known the defendant, this
witness indicated the defendant had been in prison, stating that the victim had
known him for “three years before he went to the penitentiary the last time.”
Hopson, 113 Wn.2d at 275-76. 	Defense counsel objected, and the trial court
instructed the jury to disregard the witness’s answer. Id. at 276. Defense counsel
subsequently moved for a mistrial. Id. The prosecutor told the court while she had
time to repeatedly inform the other witnesses not to refer to the defendant’s

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criminal history—the late arrival of this witness did not give the prosecutor time to
make the same impression regarding her testimony. Id. The trial court denied the
motion for a mistrial, concluding that “the witness had volunteered the information
and that there was not any indication that it was suggested by the State by any
question.” Id. (internal quotation marks omitted).
Our Supreme Court agreed, concluding (1) the “irregularity was not serious
enough to materially affect the outcome of trial” because there was “no information
concerning 	the 	nature 	or 	number 	of 	prior 	convictions, 	and 	the 	jury 	had
overwhelming evidence favoring conviction”; (2) the defense had not submitted
any evidence of prior criminal history, so the evidence was not cumulative; and
(3) the trial court issued a curative instruction to the jury, telling them to disregard
the statement. Id. at 286.
Here, Hall’s brief comment that Jaime-Rodriguez “beat up Liz” was not
serious enough to materially affect the outcome of this trial. This testimony did not
imply that Jaime-Rodriguez was in jail for domestic violence or that Jaime-
Rodriguez had a history of domestic violence. As the State points out, Hall did not
provide any details as to the alleged domestic violence incident after he was
stopped by the trial court. The State did not elicit this testimony. And here, both
the State and the defense noted on the record that Hall was reminded not to
mention domestic violence in his testimony. Furthermore, there was no evidence
presented regarding Jaime-Rodriguez’s criminal history, so the evidence was not
cumulative. Finally, the trial court instructed the jury to disregard Hall’s comment
immediately after Hall said it. 	Under the reasoning in Hopson, the trial court

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correctly concluded the statement did not rise to “mistrial level,” and it did not abuse
its discretion when it denied Jaime-Rodriguez’s motion for a mistrial.
Affirmed.
WE CONCUR: