* City Of Puyallup, Petitioner V. William E. Spenser, Respondent

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISIONE ONE
CITY OF PUYALLUP,
Appellant,
v.
WILLIAM E. SPENSER, SR.,
Respondent.
No. 74161-6-1
ORDER GRANTING MOTION
TO PUBLISH OPINION
Washington State Association of Municipal Attorneys, a nonprofit
corporation not a party to this appeal, has moved for publication of the opinion
filed in this case on January 19, 2016. 	The panel hearing the case has called for
an answer from counsel Terra Danielle Moulton for the City of Puyallup and
counsel Michael G. Bejarano for the respondent. 	The court having considered
the motion and counsels' answers, has determined that the motion for
publication should be granted. 	This court hereby
ORDERS that the motion for publication is granted.
Dated this "r^dav of 	WlQPdn 	2016.
FOR THE PANEL:
Judge
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- 	S&
 	 	 	 	 	 	 	 	 	 	 	 	 	

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CITY OF PUYALLUP,
Appellant,
v.
WILLIAM E. SPENSER, SR.,
Respondent.
No. 74161-6-
DIVISION ONE V..O
PUBLISHED 	OS
FILED: January 19. 2016
Cox, J. - "It is well settled that any party may, in opening statement, refer
to admissible evidence expected to be presented at trial."1 	Here, during opening
statement in a driving under the influence (DUI) trial, the City of Puyallup stated
the result of a breath alcohol test it planned to introduce into evidence. William
Spenser moved for a mistrial, arguing that mentioning the test results before they
had been admitted into evidence was unduly prejudicial. The trial court denied
the motion. 	Because the trial court did not abuse its discretion by denying
Spenser's motion for a mistrial, we reverse the decision of the superior court on
RALJ review and reinstate Spenser's conviction.
The City charged Spenser with DUI in Puyallup Municipal Court. The
matter was tried there.
1 State v. Whelchel. 115 Wn.2d 708, 727, 801 P.2d 948 (1990) (emphasis
omitted).
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 74161-6-1/2
During opening statement at trial, the prosecutor informed the jury that a
breath test showed that Spenser's blood alcohol was .112 or .113. 	Spenser
objected and moved for a mistrial, arguing that it was prejudicial to mention the
results of the breath test before establishing they would be admissible. 	The court
denied the motion because it had instructed the jury that counsel's statements
were not evidence. 	The court also noted that if the test results were ultimately
not admitted into evidence, the defense could raise the motion again.
During trial, the court admitted the results of Spenser's breath test. 	The
results showed blood alcohol levels of .112 or .113, as the prosecutor had
described during opening statement.
The jury convicted Spenser.
Spenser obtained RALJ review in Pierce County Superior Court. The
superior court reversed his conviction, determining that the trial court had abused
its discretion by denying his motion for a mistrial. 	The court determined that
mentioning the results of the breath test was so prejudicial that it could not be
cured by an instruction, regardless of whether the test results were subsequently
admitted into evidence.
Division Two of this court granted discretionary review and transferred the
case to this division of the court.
We review for abuse of discretion a trial court's denial of a mistrial motion.2
The "court should grant a mistrial only when the defendant has been so
2 State v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012).
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 74161-6-1/3
prejudiced that nothing short of a new trial can ensure that the defendant will be
fairly tried."3
"It is well settled that any party may, in opening statement, refer to
admissible evidence expected to be presented at trial."4 The only requirement is
that counsel have a good faith belief that the evidence will be produced at trial.5
Here, there is no argument that the prosecutor lacked a good faith belief
that the results of Spenser's breath test would be produced at trial. The fact that
the court admitted this evidence, also demonstrates the prosecutor's good faith.
Thus, the City properly used its opening statement to inform the jury of
evidence which it expected to offer at trial. 	This conforms to well-settled law.
Accordingly, the trial court did not abuse its discretion by denying Spenser's
motion for a mistrial.
Additionally, because the breath test results were ultimately admitted at
trial, mentioning the results during opening statement did not prejudice Spenser.
Spenser argues that mentioning the results was prejudicial because it
could cause the jury to wonder, "'why they are necessary in this case.'"6
Essentially, this is an argument that the test results were too probative of
Spenser's guilt. Spenser fails to identify how mentioning the test results would
3|o\
4 Whelchel, 115 Wn.2d at 727 (emphasis omitted).
5 State v. Grisbv, 97 Wn.2d 493, 499, 647 P.2d 6 (1982).
6 Spenser's Response Brief at 4.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 74161-6-1/4
create unfair prejudice in this case, in light of the fact that the results were
admitted into evidence.
We reverse the superior court's order for a new trial, affirm Spenser's
conviction, and direct reinstatement of the judgment on the jury verdict.
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WE CONCUR:
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