State of Washington v. Shawn Rutherford Kueck

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
SHAWN RUTHERFORD KUECK,
Appellant.
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No. 40763-2-III
OPINION PUBLISHED IN PART
STAAB, C.J. — T.K. and Shawn Kueck were married and lived on a rural farm in
Rice, Washington. In September 2023, the parties separated after a fight and T.K. left the
home with the children. Claiming he was “downsizing” the animals, Kueck shot and
buried three of their horses. In October, Kueck was arrested and charged with several
crimes, including first degree animal cruelty for killing a horse named Chabi.
In the published portion of this opinion, we address Kueck’s argument that the
evidence was insufficient to support his conviction for first degree animal cruelty under
the alternative for intentionally killing an animal while manifesting an extreme
indifference to the animal’s life. We hold that, as used in RCW 16.52.205(1)(c), the
phrase “manifesting an extreme indifference to life” identifies an aggravating level of
culpability beyond the intent to kill and beyond the lack of legal justification. The
FILED
JULY 30, 2026
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

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circumstances developed at trial support Kueck’s conviction under this alternative. The
horse he killed was young and healthy, the jury could conclude Kueck’s reasons for
killing the horse were baseless, and the timing and circumstances support a conclusion
that Kueck killed the horse because he was mad or wanted to hurt, manipulate, or control
his estranged wife.
In the unpublished portion of this opinion, we reject Kueck’s remaining arguments
and affirm.
BACKGROUND
On September 4, 2023, an ongoing disagreement between T.K. and Kueck boiled
over and T.K. claimed the arguments turned physical. At trial, she testified that during
their argument, Kueck hit her, pushed her to the bed, put his hands on her throat and
chest, blocked her from leaving, and grabbed two “phones” from her when she tried to
call police. Rep. of Proc (RP) at 738-39. After leaving with the children, T.K. filed for a
protection order.
The Kuecks owned several horses. On September 17, after T.K. left the home,
Kueck texted T.K. that he was going to start downsizing the animals and that the animals
would start leaving on Saturday. The two spoke over the phone about how they would
rehome some of the animals or take them to a sale. T.K. later explained that when she
mentioned finding homes for the horses, Kueck indicated that he wanted to keep them
because he wanted to “keep our dream alive.” RP at 794.

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On October 8, T.K. and Kueck exchanged a series of text messages (although the
exact sequence is hard to determine). At some point T.K. texted Kueck that she could
rehome all the horses. The following text message exchange occurred:
[Kueck] Honey, Subi, Chabi [redacted] are on the farm together.
Not going anywhere[.]
Let’s talk in the morning. And at night, if you want to be involved
with how I live my life. If you don’t want me to go somewhere you
need to talk to me like my wife.
I’m here, I have healed, your prayers were answered, stop meeting
my love with anger and grudges.
I’m going to eat and watch Masterchef but FaceTime me tonight and
I’ll say goodnight to the kids then talk to you[.]
Ex. 9, 11
At some point T.K. called Kueck and told her he had shot the horses. He then told
her that if she wanted to have anything else to do with what happened on the farm, that
she would have to come and sit with him without anyone else present and discuss it with
him.
That same day T.K. texted Kueck:
[T.K.] Did you shoot the horses or not?
I’m done with your games.
[Kueck] Yes I’m done with yours as well.
Grow up and talk to me if you want to be my wife.
Or leave.
[T.K.] Ok[.]
[Kueck] Divorce me[.]
Or come home[.]

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But you will never be in charge [indiscernable] life without you.
I will forget you, and one day I will move on.
Ex. 11, 18.
Finally, Kueck texted T.K. that “Chabi went to a new home today.” Ex. 18. T.K.
responded, “Please don’t shoot any other animals. I will find them homes if you want
them gone[.]” Ex. 18
The horses were later found buried on the property. T.K. testified that when Chabi
was exhumed, she had a visible bullet hole in her head. At trial, the State did not produce
any evidence demonstrating how the horses died or whether they suffered before dying.
T.K. testified that each of the horses looked very healthy at the end of September, and she
claimed there were various ways to rehome a horse, one being through an auction. T.K.
described the horse market for pleasure horses as “exceptionally good.” RP at 752.
At trial, Kueck admitted to killing the horses but claimed he euthanized them for
legitimate reasons. He testified that the most humane way to put down a large animal is
to use a firearm and that he used this method to put down farm animals on “a regular
basis for a wide variety of reasons.” RP at 918. In downsizing the farm, Kueck testified
the animals were either sold, given away, butchered, or euthanized.
Kueck admitted that he killed the first horse in early September. This horse was
kicked out of its boarding facility due to its aggressive and dangerous nature, and the
couple attempted to rehabilitate the horse to potentially sell it. Kueck said that these

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efforts failed, and because they were downsizing, Kueck decided to put the horse down
rather than attempt to sell a dangerous horse.
The second horse that Kueck euthanized was born with a club foot, causing pain
and an inability to keep up with the other horses. Kueck testified that the condition is
painful and a horse with this condition is normally euthanized “within a couple of years.”
RP at 938. Kueck admitted that he euthanized the second horse during the second week
in September.
With respect to the third horse, Chabi, Kueck described her as a yearling who was
not as lame as the other horse but in dire need of having her hooves trimmed. Kueck
indicated that he tried to move the horse to a different pasture, but she was damaging
fences and was uncatchable, so he euthanized her with a firearm. He testified that he
spoke with T.K. about euthanizing Chabi in September. T.K., however, stated she
believed Kueck intended to rehome the animals and she testified that all of the horses
looked healthy when she saw them in September.
The State amended the information four times before trial. The fourth amended
information included 10 counts. During trial, the State dismissed count 10, fourth degree
assault. The jury acquitted Kueck of second degree assault, third degree assault, and two
counts of first degree animal cruelty pertaining to the first and second horses that Kueck
killed. The jury found Kueck guilty of two counts of unlawful imprisonment, two counts

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of interfering with the reporting of domestic violence, and one count of first degree
animal cruelty pertaining to Chabi.
Before sentencing, Kueck moved for a mistrial and dismissal of the remaining
charges. The trial court denied these motions and sentenced Kueck to nine months’ total
confinement and 12 months’ community custody.
Kueck appeals his convictions.
ANALYSIS
SUFFICIENCY OF THE EVIDENCE FOR ANIMAL CRUELTY
Kueck argues the State presented insufficient evidence to support his conviction
for first degree animal cruelty. While admitting that he euthanized the horse with a
firearm, he contends he did so humanely and that there is no evidence that he did so while
manifesting an extreme indifference to the animal’s life. The State disagrees, arguing a
rational trier of fact could conclude Kueck demonstrated an extreme indifference to the
horse’s life because he killed a healthy young animal for unjustifiable reasons and told
his estranged wife that the horse “went to a new home today.” Ex. 18.
Evidence is sufficient to support a conviction if “any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt when viewing
the evidence in a light most favorable to the State.” State v. Treat, 109 Wn. App. 419,
426, 35 P.3d 1192 (2001). The challenging party admits the truth of the State’s evidence
and all reasonable inferences. Id. Circumstantial evidence is no less reliable than direct

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evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We “defer to the
trier of fact on issues of conflicting testimony, credibility of witnesses, and the
persuasiveness of the evidence.” State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970
(2004).
The statute on animal cruelty in the first degree provides in relevant part: “(1) A
person is guilty of animal cruelty in the first degree when, except as authorized in law, he
or she intentionally . . . (c) kills an animal by a means causing undue suffering or while
manifesting an extreme indifference to life, or forces a minor to inflict unnecessary pain,
injury, or death on an animal.” RCW 16.52.205(1).
At trial, the State produced no evidence that Chabi suffered before dying and did
not pursue the “undue suffering” alternative under the statute.1 Instead, the State argued
that Chabi’s death was a clear display of Kueck’s extreme indifference to the horse’s life.
In order to determine if the evidence is sufficient, we must first discern the meaning of
the phrase “manifesting an extreme indifference to life” as used in the first degree animal
cruelty statute.
We interpret statutes de novo. State v. Pratt, 196 Wn.2d 849, 852, 479 P.3d 680
(2021). Our primary objective is to ascertain and carry out legislative intent, beginning
with the statute’s plain language. Id. at 853. Plain meaning is discerned from the
1 The jury instructions on this charge omitted the undue suffering alternative.

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statutory text, the context of the chapter, and related statutes. Id. “Absent a statutory
definition, this court should give terms their ordinary dictionary meaning and look to case
law where Washington courts have attempted to define the term.” City of Spokane v.
Ramos, 33 Wn. App. 2d 263, 272, 559 P.3d 1045 (2024).
The animal cruelty statute does not define the phrase “extreme indifference to
life.” In other contexts, the phrase has been parsed using dictionary definitions. See
State v. Madarash, 116 Wn. App. 500, 512, 66 P.3d 682 (2003) (defining “extreme” and
“indifference”). These definitions, however, do not resolve the phrase’s meaning in the
specific context of the animal cruelty statute.
Washington courts have recognized that the same phrase may carry different
meanings depending on the statute in which it appears. Id. at 511 (“[W]hen the same
words or phrases are used in different statutes, their meaning depends on common usage
and the context in which the words are used.”). For example, “extreme indifference to
human life” in the homicide by abuse statute requires only that the defendant did not care
whether the victim lived or died, while in the first degree murder statute it requires
knowledge of a grave risk of death. Id. at 511-12.
Before considering what the phrase means within the animal cruelty statute, we
consider what it does not mean. Within the murder and homicide statutes, extreme
indifference is the required mental state and replaces the requirement to show intentional
acts. See State v. Edwards, 92 Wn. App. 156, 163-64, 961 P.2d 969 (1998). In contrast,

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the animal cruelty statute already requires that the defendant “intentionally” killed the
animal. RCW 16.52.205(1). Because the legislature used both phrases, “intentionally”
and “while manifesting an extreme indifference to life,” we presume they carry different
meanings. State v. Patel, 170 Wn.2d 476, 491 n.17, 242 P.3d 856 (2010), disapproved of
on other grounds by State v. Johnson, 173 Wn.2d 895, 270 P.3d 591 (2012).
Nor can the phrase relate to the act of killing. The intentional killing of an animal
is sometimes lawful. See RCW 16.52.205(7) (exempting accepted animal husbandry
practices); RCW 16.52.011(1)(f) (defining “euthanasia” as “the humane destruction of an
animal accomplished by a method that involves instantaneous unconsciousness and
immediate death, or by a method that causes painless loss of consciousness, and death
during the loss of consciousness”). Thus, “extreme indifference” must require something
more than the fact that the defendant intentionally killed an animal.
Likewise, the phrase cannot merely mean an unjustified killing. The statute
already limits liability to killings not authorized by law. RCW 16.52.205(1). Interpreting
“extreme indifference” to mean only “not justified” would render the phrase superfluous.
See Wash. State Ass’n of Counties v. State, 199 Wn.2d 1, 12-13, 502 P.3d 825 (2022)
(Courts avoid interpretations that render statutory language meaningless or superfluous.).
Finally, the term “extreme indifference” must mean something other than killing
an animal in a manner that causes undue suffering, which is already covered by the
animal cruelty statute. See RCW 16.52.205(1)(c).

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Turning to what the phrase does mean, we conclude that “extreme indifference”
must be informed by the verb “manifest.” The statute requires that the defendant
manifest extreme indifference. In this context, the word “manifest” is used as a verb to
mean “make evident or certain by showing or displaying.” WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 1375 (1993). The statute does not say the killing occurred
“because of” an extreme indifference, but that the circumstances of the killing reveal an
extreme indifference.
In light of these considerations, we conclude that “manifesting an extreme
indifference to life,” as used in the first degree animal cruelty statute, identifies an
aggravating level of culpability beyond the intent to kill and beyond the lack of legal
justification. The phrase narrows the class of intentional, nonsuffering killings to only
those killings in which the surrounding circumstances demonstrate a complete disregard
for the value of the animal’s life. It requires proof of circumstances showing a degree of
callousness substantially greater than that inherent in every unjustified intentional killing.
This may include evidence on the manner in which the animal was killed, the reasons for
killing the animal, and the circumstances surrounding the killing.
Here, the evidence, when viewed in a light most favorable to the State, supports
Kueck’s conviction for first degree animal cruelty. Kueck shot three horses over the span
of several weeks after his wife left him. The jury acquitted him of animal cruelty related
to two of the killings but convicted him on the third.

No. 40763-2-III
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The evidence supports a finding that Kueck’s explanations for killing a young,
healthy horse were baseless and contradicted by other evidence. Although Kueck
testified the horse needed foot care and was uncatchable, T.K. directly contradicted these
statements when testifying the horse looked “very healthy” in early September. The
circumstances of the killing, shortly after the couple separated and continued to fight,
along with Kueck’s cryptic statement, “Chabi went to a new home today,” are indicative
of a cold, menacing affect and support an inference that he killed the horse because he
was angry or because he wanted to hurt, control, or manipulate T.K. A rational jury
could find that killing a perfectly healthy horse for this reason manifests extreme
indifference to the animal’s life.
A majority of the panel having determined that only the foregoing portion of this
opinion will be printed in the Washington Appellate Reports and that the remainder,
having no precedential value, shall be filed for public record pursuant to RCW 2.06.040,
it is so ordered.
1. SPOUSAL PRIVILEGE
Kueck argues the trial court abused its discretion in refusing to apply spousal
privilege under RCW 5.60.060(1). He contends the statute does not afford the trial court
discretion to apply the privilege. Instead, the trial court was required to obtain his
consent before allowing T.K. to testify about their communications regarding Chabi. The
State argues the trial court was authorized to exercise discretion to apply spousal

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privilege in order to effectuate that statute’s purpose. It argues the trial court did not
abuse its discretion in applying the statute because T.K.’s testimony was relevant to the
animal cruelty charges, and the purpose of spousal privilege was not a factor in this
matter as T.K. and Kueck were separated. We agree with the State.
We review issues of statutory interpretation de novo. Pratt, 196 Wn.2d at 852.
Evidentiary rulings are reviewed for abuse of discretion. State v. Finch, 137 Wn.2d 792,
810, 975 P.2d 967 (1999). A court abuses its discretion when its decision is manifestly
unreasonable or rests on untenable grounds or reasons. Id.
Under RCW 5.60.060(1), testimony by a spouse about communications made
between the spouses during their marriage is inadmissible without consent of the other
spouse, except in “a criminal action . . . for a crime committed by one [spouse] against
the other.” Spousal privilege is a statutory evidentiary privilege, not a constitutional
right. State v. Roach, 18 Wn. App. 2d 98, 110, 489 P.3d 283 (2021). Because privileges
exclude relevant evidence, courts construe them narrowly. State v. Burden, 120 Wn.2d
371, 376, 841 P.2d 758 (1992). In exercising discretion, courts balance the privilege’s
purposes against the risk of trial gamesmanship, the exclusion of relevant evidence, and
harm to the truth-seeking function. Roach, 18 Wn. App. 2d at 111.
The purpose of the spousal privilege is to foster harmony and prevent marital
discord. Burden, 120 Wn.2d at 375. The statute recognizes the natural disdain for

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forcing one spouse to testify against the other and having to choose between jeopardizing
the marriage and facing the consequences of refusing to testify. Id.
Here, defense counsel repeatedly invoked the privilege to block the admission of
text messages and related testimony between the spouses. The State argued the privilege
was inapplicable because the animal cruelty charge constituted a crime against a spouse.
The court initially questioned that position, noting that T.K. was not the victim of the
charged offense.2 Ultimately, however, relying on Roach, the court concluded the
privilege did not apply because the marriage was already in significant discord and
excluding the communications would undermine the truth-seeking process.
We conclude the court acted within its discretion. The record shows T.K. and
Kueck separated on September 4, and Kueck told T.K. he intended to leave the marriage
on October 8. There is no claim that the couple was attempting reconciliation. The
challenged communications were highly relevant to the animal cruelty charge. Given the
state of the marriage and the nature of the evidence, the court reasonably declined to
apply the privilege.
2 The court denied the State’s attempt to amend the information and add a
domestic violence tag to the animal cruelty charges because the information had already
been amended numerous times and the State had assured the court that its prior motion to
amend was its last.

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Kueck argues Roach is factually distinguishable, but we rely on Roach for its
articulation of general principles governing spousal privilege, not its specific facts.
Under those principles, he has not shown that the trial court abused its discretion.
2. PROSECUTORIAL MISCONDUCT
Kueck contends that pervasive prosecutorial misconduct created an unfair trial and
warrants reversal. He contends the prosecutor improperly asked witnesses to comment
on the credibility of other witnesses, violated the motions in limine, and argued facts not
in evidence and misstated the law during closing argument. The State argues that no
prosecutorial misconduct occurred and, alternatively, no prejudice is shown under the
applicable standards. We agree that four instances of misconduct occurred, but upon
consideration of the entire record we conclude that these instances did not have a
substantial likelihood of affecting the verdict.
Prosecutorial misconduct is reviewed for abuse of discretion. State v. Lindsay,
180 Wn.2d 423, 430, 326 P.3d 125 (2014). “‘In order to establish prosecutorial
misconduct, a defendant must show that the prosecutor’s conduct was both improper and
prejudicial in the context of the entire record and the circumstances at trial.’” State v.
Slater, 197 Wn.2d 660, 681, 486 P.3d 873 (2021) (internal quotation marks omitted)
(quoting State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008)).
That standard for prejudice depends on whether the improper remark was
preserved by objection. See Kain v. Logan, 79 Wn.2d 524, 528, 487 P.2d 1292 (1971)

No. 40763-2-III
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(“Remarks of counsel . . . claimed to be so prejudicial as to warrant a reversal . . . must
be brought to the trial court’s attention.”). When the defendant objects at trial to an
improper comment, “the defendant must show that the prosecutor’s misconduct resulted
in prejudice that had a substantial likelihood of affecting the jury’s verdict.” State v.
Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012). A defendant who fails to object to
misconduct at trial waives the issue unless the defendant can show that the “misconduct
was so flagrant and ill intentioned that an instruction could not have cured the resulting
prejudice.” Id. at 760-61.
A. Improper Questions on Witness Credibility
(i) Kueck
Kueck contends the State committed misconduct when it asked him whether
T.K.’s testimony that Kueck threw a dog kennel at her was “pure fiction.” RP at 948.
We agree that the question was improper. A prosecutor commits misconduct by asking a
witness whether another witness is lying because such an opinion invades the province of
the jury. State v. Cook, 17 Wn. App. 2d 96, 106, 484 P.3d 13 (2021).
Rather than defend the comment on appeal, the State responds that Kueck’s
attorney opened the door to this type of question by asking Kueck on direct whether he
agreed with T.K.’s testimony. Not only was the question on direct different from the

No. 40763-2-III
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question asked by the prosecutor, but the State’s argument on appeal misapplies the open
door doctrine. See State v. Rushworth, 12 Wn. App. 2d 466, 475, 458 P.3d 1192 (2020).3
Nevertheless, we conclude that this error was not prejudicial. Defense counsel’s
appropriate objection was sustained, and the court instructed the jury to disregard the
question. “[T]he jury is presumed to follow the [trial] court’s instructions to disregard”
witness testimony. State v. Swan, 114 Wn.2d 613, 661-62, 790 P.2d 610 (1990). In
addition, given the remaining evidence presented at trial, Kueck fails to demonstrate any
likelihood that the jury would have reached a different conclusion had the question not
been asked. Notably, the jury acquitted Kueck of the assault charge related to throwing
the dog kennel.
(ii) Detective Colton Schumacher
Next, Kueck contends the State improperly questioned Detective Schumacher
about the credibility of T.K.’s testimony. In discussing the text messages between T.K.
and Kueck, the prosecutor asked Detective Schumacher whether he had “any other
corroboration . . . to determine whether or not she was being accurate with you?” RP at
647. Defense counsel objected on the grounds of speculation—asking the detective to
3 The State is actually arguing the curative admissibility doctrine, which is
colloquially referred to as “‘fighting fire with fire.’” Rushworth, 12 Wn. App. at 475.
Courts generally do not allow the State to introduce evidence under this doctrine.
Instead, if the State believes defense counsel is introducing inadmissible evidence, the
State’s remedy is to object—not stay silent and then use the opportunity as an excuse to
introduce inadmissible evidence. Id. at 476.

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interpret text messages—and lack of verification that the messages were authentic.
Ultimately, the court allowed the detective to answer the very specific question of
whether he considered the content of the messages in corroborating them.
First, we note that Kueck did not preserve this issue at trial. His only objection to
the testimony was based on whether the detective could authenticate the validity of the
text messages.
But even if we consider the comment, Kueck does not demonstrate that the
question was a clear request to have one witness comment on the credibility of another
witness. Washington courts distinguish between testimony that constitutes a direct
opinion on another witness’s veracity and testimony about investigative findings or the
presence or absence of corroborating evidence, which is permissible factual testimony.
In State v. Kirkman, the Washington Supreme Court addressed a detective’s and a
physician’s testimony in a child sexual abuse case. 159 Wn.2d 918, 155 P.3d 125 (2007).
The court held that a doctor’s testimony stating he “found nothing in the physical
examination to make him doubt” the victim, but also “nothing to confirm” her
explanation, was not an improper comment on credibility. Id. at 923. The court reasoned
that the doctor “was not ‘clearly’ commenting on [the victim’s] credibility and actually
testified that his findings neither corroborated nor undercut” her account. Id. at 930.
Here, the prosecutor was asking a detective if there was corroborating evidence.
We do not find this comment to be error.

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B. Motions in Limine
Kueck argues the State violated a pretrial ruling by discussing the testimony of
other witnesses with T.K. in violation of ER 615.4 During discussions outside the
presence of the jury, the State informed the trial court that it communicated with T.K.
about potential rebuttal evidence, but not about the testimony of other witnesses. The
trial court expressed concern over the contents of the conversation between the State and
T.K. The trial court further stated it had observed witnesses speaking with each other in
the hallways of the courthouse and that there was clearly an inappropriate discussion
occurring. Ultimately, the trial court concluded that the violations, if any, were not
prejudicial because the State did not call T.K. as a rebuttal witness.
On appeal, Kueck admits that he cannot demonstrate prejudice from the violations
but contends this is further evidence of pervasive misconduct. Even so, because there is
nothing in the record to indicate that any witness’s testimony was influenced by
conversations held during the trial, we do not consider this error in our prejudice analysis.
See State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989) (“Only errors affecting
the outcome of the trial [are] deemed prejudicial.”).
4 ER 615 allows the trial court to exclude witnesses to prevent those witnesses
from hearing the testimony of other witnesses. Here, the trial court stated it would be
excluding witnesses during the course of the trial.

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C. Facts Not in Evidence
Kueck argues the prosecutor committed misconduct by making several references
to facts not in evidence during closing arguments.
(i) Other Documents
The trial court explicitly prohibited any testimony or statements about a civil
protection order issued to protect T.K. from Kueck. However, it allowed testimony that
law enforcement became aware of court filings in general, which caused law enforcement
to investigate the issue.
During closing arguments, when discussing the jury’s ability to rely on
circumstantial evidence, the prosecutor suggested that the jury could make reasonable
inferences based on its knowledge of other court documents:
If we didn’t specifically prove it, there may be reasons—as opposed to a
lack of evidence. There are rules that we follow. So, you may reasonable
[sic] infer, especially when you know that there are other court documents.
RP at 1170.
We agree that the prosecutor’s comment was misconduct. It is improper for a
prosecutor to argue facts not in evidence. State v. Dhaliwal, 150 Wn.2d 559, 577, 79
P.3d 432 (2003). Here, the trial court properly characterized the prosecutor’s comment as
a request to speculate about documents not in the record.
Nevertheless, Kueck fails to show prejudice. Defense counsel immediately
objected, and the trial court sustained the objection and instructed the jury that it was

No. 40763-2-III
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prohibited from speculating about the other court documents. We presume the jury will
follow a court’s curative instruction to disregard a prosecutor’s improper comment.
Swan, 114 Wn.2d at 661-62.
(ii) Suggesting Prior Choking Incidents
At trial, T.K. testified that during the couple’s fight on September 4, Kueck
blocked her from leaving the bedroom, pushed her to the bed, and put his hands on her
throat and chest. Despite T.K.’s testimony of a singular event, in closing the prosecutor
suggested to the jury that Kueck had choked T.K. at different times. When the prosecutor
stated, “She realized that this time when he choked her with his arm —” defense counsel
objected. RP at 1119 (emphasis added). The prosecutor stated he would rephrase the
question, and the trial court instructed the jury to disregard the comment. The prosecutor
proceeded to state, “That when he choked her this time —” defense counsel immediately
objected, and the court sustained the objection. RP at 1119. The prosecutor then
continued to argue that “[w]hen he choked her and held her down on the bed, when he
spanked her by beating her and leaving bruises on her, he was now going to kill her.
That’s what she thought.” RP at 1120. Defense counsel’s objection that there was no
evidence that T.K. thought she was going to be killed was sustained. The court then
reminded the jury that the arguments of counsel were not evidence, and the jury should
rely on their own recollection of the evidence.

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We agree with Kueck that the prosecutor’s comments were improper as suggesting
facts not in evidence. See Dhaliwal, 150 Wn.2d at 577. However, we conclude that the
comments were not so prejudicial as to have a substantial likelihood of affecting the
jury’s verdict. Defense counsel properly objected to all three comments, which the trial
court sustained and then provided the appropriate curative instruction; this rendered the
prosecutor’s argument ineffective. Moreover, the jury acquitted Kueck of both assault
charges, so there is no direct prejudice.
(iii) Domestic Violence Dynamics
At a later point in closing, as the prosecutor was describing T.K.’s decision to end
the relationship, the prosecutor argued, “[Kueck] didn’t like that because people who have
to control and use their spouses, or view their spouses as property, don’t like to be —”
defense counsel objected. RP at 1129. In response to the defense counsel’s objection, the
court instructed the jury that the attorney’s argument was not evidence, and they should
rely on their own recollections.
Finally, in purporting to respond to defense counsel’s prior argument that the jury
should question T.K.’s credibility because she did not report the domestic violence
incident, the prosecutor told the jury that they should use their own common sense and
experience to conclude that this was not true. Defense counsel objected. The trial court
instructed the jury that the evidence came from witnesses and exhibits. On appeal, Kueck

No. 40763-2-III
State v. Kueck
22
contends that each of these statements was unsupported by any evidence at trial. We
disagree.
“In closing argument the prosecuting attorney has wide latitude to argue
reasonable inferences from the evidence.” State v. Thorgerson, 172 Wn.2d 438, 448, 258
P.3d 43 (2011). However, prosecutors may not make prejudicial statements that are not
supported by the record. Dhaliwal, 150 Wn.2d at 577. Here, given the wide latitude
afforded attorneys in argument, we are not convinced that the remarks improperly
reference evidence outside the record. Kueck does not cite any cases or present any
argument to support his premise that domestic violence dynamics are always beyond the
experience of jurors and require expert testimony. Additionally, we note that both
comments were objected to and that both times the jury was instructed the attorneys’
arguments were not evidence.
D. Misstatement of the Law
Kueck next argues that the prosecutor committed misconduct by misstating the
law. During closing arguments, the prosecutor stated:
You heard [Kueck] talk about why he did this after he finally got around to
admitting that he did this. And I submit to you that manifesting an extreme
indifference to life is—is exactly what it sounds like. It’s not a trick, it’s
not difficult. When you kill something, that is manifesting an extreme
indifference to its life.
RP at 1139 (emphasis added). Defense counsel objected, and the court instructed the jury
to rely on the law in the instructions. The to-convict jury instruction required the State to

No. 40763-2-III
State v. Kueck
23
prove that Kueck killed “Chabi, while manifesting an extreme indifference to life.”
Clerk’s Papers at 374.
A prosecutor’s statements to the jury on the law must reflect the law set forth in
the jury instructions. State v. Estill, 80 Wn.2d 196, 199, 492 P.2d 1037 (1972).
Given our interpretation of the animal cruelty statute above, the prosecutor’s
statement, if taken in isolation, was a technical misstatement of the law. However, when
considered in context, the argument was not clearly incorrect. In the prior sentence, the
prosecutor referenced Kueck’s stated reasons for killing the horses, suggesting an
extreme indifference to life requires more than a mere killing. The prosecutor went on to
point out that T.K. testified that the horses were healthy and that she pleaded with Kueck
to not shoot any more animals.
3. WITNESS MISCONDUCT
Kueck argues he was prejudiced by two instances of witness misconduct. First,
during her testimony, and in response to a question about what she did next, T.K. blurted
out that she “decided to file the paperwork I needed for protection.” RP at 763. Defense
counsel immediately objected as violating the order in limine that prohibited witnesses
from discussing the civil protection order. Outside the presence of the jury, the court
expressed its concern but ultimately ruled T.K.’s comment “didn’t cross a line, but it
certainly walked right up to the edge of it.” RP at 766.

No. 40763-2-III
State v. Kueck
24
Kueck also identifies testimony from Stuart Davis, a friend of the Kuecks. During
cross-examination, when asked if he was present when T.K. received her bruises, the
following exchange occurred:
[Defense counsel]: Well, were you present when there were any actions
that would have caused bruises on [T.K.]?
[Davis]: I did not see the beating, no.
[Defense counsel]: All right. So, you have no idea, sir, how the bruises
were on [T.K.], correct?
[Davis]: I’m glad we agree they’re bruises. In my experience, which I
know you don’t care about, I’ve seen many beatings, and this was a
beating.
[Defense counsel]: I’m going to object.
RP at 856. When directed to answer the question, Davis admitted he was not present.
“A trial court has wide discretion to cure trial irregularities resulting from
improper witness statements.” State v. Gamble, 168 Wn.2d 161, 177, 225 P.3d 973
(2010). When a trial irregularity occurs, such as a witness violating a pretrial order,
prejudice is examined in light of the seriousness of the irregularity, the nature of the
evidence and whether it was cumulative, and whether the jury was properly instructed to
disregard the testimony. Id.
Here, the trial court found that T.K.’s comment was not a clear violation of the
order in limine. Kueck does not assign error to this ruling or argue that it was erroneous.
Thus, Kueck has not demonstrated that the comment violated the order in limine.

No. 40763-2-III
State v. Kueck
25
Kueck argues on appeal that Davis’s comments amounted to an improper opinion
of guilt. Although defense counsel raised a general objection to Davis’s nonresponsive
and inflammatory comment, counsel did not claim the comments amounted to an opinion
of guilt. Absent such an objection, the issue is waived unless it falls within the narrow
exception of a manifest constitutional error. RAP 2.5(a); Kirkman, 159 Wn.2d at 926.
Kueck does not argue manifest error on appeal, and we decline to consider this issue.
4. CUMULATIVE ERROR
Kueck argues that even if individual errors are harmless, the cumulative effect of
the errors rendered his trial fundamentally unfair.
Even when individual instances of misconduct do not warrant reversal, the
cumulative effect of these errors may result in an unfair trial. See Cook, 17 Wn. App. 2d
at 106. In order to show prejudice from the cumulative effect of errors that were
preserved at trial, the defendant must show that “‘the outcome of the trial would have
been materially affected had the error not occurred.’” State v. Weber, 159 Wn.2d 252,
270, 149 P.3d 646 (2006) (internal quotation marks omitted) (quoting State v. Bourgeois,
133 Wn.2d 389, 403, 945 P.2d 1120 (1997)). The defendant bears the burden of proving
the errors are of sufficient magnitude that retrial is necessary. State v. Yarbrough, 151
Wn. App. 66, 98, 210 P.3d 1029 (2009).
Most of the alleged errors that Kueck used to support his argument on cumulative
error are not errors at all, as we explained above, and the errors that did occur do not

No. 40763-2-III
State v. Kueck
26
warrant a new trial. We have determined that the prosecutor made four errors throughout
the trial that could have affected the outcome of the trial: (1) asking Kueck if T.K.’s
testimony was “pure fiction,” (2) suggesting the jury could consider “other court
documents” that were not admitted, (3) twice using the phrase “this time” when
describing Kueck choking T.K., and (4) arguing to the jury that T.K. thought she was
going to be killed. Defense counsel objected to each error and the trial court sustained
the objections and instructed the jury to disregard the comments.
These errors are not of a sufficient magnitude so as to convince us that Kueck
received an unfair trial. Defense counsel was remarkably effective in objecting to each
error, and the trial court properly sustained the objections with instructions to the jury.
Most of the errors relate to the assault charges, for which Kueck was found not guilty.
The trial court denied Kueck’s motion for a mistrial based on these errors. Kueck does
not assign error to this ruling, and we conclude that the trial court did not abuse its
discretion by denying the motion. See State v. Copeland, 130 Wn.2d 244, 294, 922 P.2d
1304 (1996).
Affirmed.
_________________________________
Staab, C.J.
WE CONCUR:
_________________________________ _________________________________
Lawrence-Berrey, J. Murphy, J.