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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

 STATE OF WASINGTON,
                                                  )         No. 65703-8-I
                       Respondent,
                                                  )         DIVISION ONE
                v.
                                                  )         UNPUBLISHED OPINION
 DION EARL JOHNSON,
                                                  )
                       Appellant.                           FILED: April 23, 2012
                                                  )

                                                  )

                                                  )

                                                  )

                                                  )

                                                  )

       Appelwick, J.     --  Johnson appeals from his conviction for counts of felony 

harassment, felony violation of a court order, tampering with a witness, and bail 

jumping.  He argues his right to a fair trial was violated by limitations on cross-

examination of the victim, by prosecutorial misconduct during closing argument, and by 

an outburst during opening statements.  Johnson also argues the trial court gave an 

improper unanimity instruction in the special verdict form for sentencing enhancements 

and miscalculated his offender score by including a federal conviction.             Johnson is  

No. 65703-8-I/2

barred from raising the unanimity instruction argument under the invited error doctrine.  

Any other alleged error at trial was harmless.  We affirm.

                                            FACTS

       Denise Hunter and Dion Johnson have known each other for approximately 11 

years and have dated on and off during that time.  They have two children together,

and they have lived together for stretches as well.  Hunter became pregnant with their 

first child in 2001, when she was 18 years old.  Johnson was often abusive of Hunter 

during the relationship.  He was convicted of a 2005 assault on Hunter, after punching 

her in the face, breaking her nose, and knocking her unconscious.  Because of that 

conviction, the trial court entered a no contact order.  

       Despite the court order, after Johnson got out of prison in 2008, he and Hunter 

began seeing each other again, and Hunter became pregnant with their second child, 

who was born in February 2009.  He continued to abuse her both emotionally and 

physically.  Hunter eventually began cooperating with law enforcement and stopped 

interacting with Johnson.  She moved to a confidential shelter for domestic violence 

victims and began receiving services from domestic violence counselors.  Each of the 

ten counts charged in this case occurred after Hunter took these steps.  The charged 

crimes included:

       Count I:  Felony Violation of a Court Order (FVCO) (11/18/08)

       Count II:  Felony Violation of a Court Order (2/14/09)

       Count III:  Felony Harassment (2/14/09)

       Count IV:  Tampering with a Witness (8/3/09)

                                                   2 

No. 65703-8-I/3

       Count V:  Felony Violation of a Court Order (8/23/09)

       Count VI:  Tampering with a Witness (8/23/09)

       Count VII:  Bail Jumping (9/11/09)

       Count VIII:  Felony Violation of a Court Order (9/18/09)

       Count IX:  Tampering with a Witness (9/18/09)

       Count X:  Felony Violation of a Court Order (12/8/09)

       Count I (FVCO):  The facts giving rise to the first count arose on November 18, 

2008, when Hunter was approximately 7 months pregnant with her second child and 

went to a health clinic for a prenatal checkup.  Hunter went with her daughter and her 

grandmother.  While Hunter's grandmother was waiting in the car, Johnson pulled up 

and asked her where Hunter was.  When Hunter was inside the clinic, Johnson 

approached her and tried to kiss her and grab her.  Hunter wrote down the license plate 

number of the car in which Johnson arrived.  The nurse encouraged Hunter to call the 

police but she did not.  

       Count II (FVCO) and Count III (Felony Harassment):  On February 14, 2009, 

Hunter went to Champ's Restaurant and Bar with her cousin and a friend.  Hunter was 

nine months pregnant at the time.  Hunter testified she saw Johnson's sister and cousin 

when she arrived, and decided to stay in the parking lot rather than go inside.  Johnson 

then came towards her and grabbed her forcefully by her hair.  He said,                   "I got 

something for you and whoever you're calling on the phone."  Hunter believed, from 

past experience, that Johnson meant he had a gun in his car.  Hunter's friend pulled 

the car around, picked her up, and they drove away.  Hunter tried to call the police 

                                                   3 

No. 65703-8-I/4

when she got into the car, but her phone broke.  She was able to call again later from a 

bowling alley.  Police were dispatched to Champ's, where they located Johnson and 

arrested him.  

       Count IV (Witness Tampering):  Hunter testified that on August 3, 2009, while 

she was living in the domestic violence shelter, Johnson called her from a blocked 

phone number and they had a 25 minute conversation.  Johnson offered to return 

belongings he had stolen from her if she would stop cooperating with law enforcement.  

He also offered her $5000 and a car, if she would not show up in court to testify.  

Hunter called her advocate and provided police with her phone records.  
       Count V (FVCO) and Count VI1 (Witness Tampering):                On August 23, 2009, 

Johnson again called Hunter from a blocked number.  They spoke for a short period of 

time, and Johnson offered her $3000 to not appear in court and testify.  

       Count VII (Bail Jumping):  On September 11, 2009, Johnson failed to appear as 

required at a scheduled court hearing on the FVCO charge that was filed as a result of 

the incident in November 2008 at the clinic.  

       Count VIII (FVCO) and Count IX (Witness Tampering):  On September 18, 2009, 

Johnson called Hunter from a blocked number, while she was sleeping.  He was 

"frantic" and asked her not to let the police get him.  He again offered to return 

belongings he had taken from Hunter if she would refrain from testifying in court.  He 

also told her that his family would be angry with her if she went to court

       Count X (FVCO):  On December 8, Hunter was contacted by Johnson via an 

intermediary third party, Toni Washington.  Washington is Hunter's cousin, and has a 

       1 Johnson was acquitted of Count VI.  

                                                   4 

No. 65703-8-I/5

child in common with one of Johnson's cousins.  Washington told Hunter that Johnson 

had just called her and that Hunter's charges were the only thing preventing him from 

being released from jail.  Washington told Hunter she needed to drop the charges.  

Hunter was angry that Washington would agree to contact her on Johnson's behalf and 

reported the call to her case detective.  At trial, the State introduced a recording of 

Johnson's call to Washington as an exhibit, which was played for the jury.  Despite this 

recording, Washington testified at trial that she did not talk to Hunter on that date.  

       With the exception of the bail jumping charge, each of these counts included a 

domestic violence aggravating factor, based on the State's allegations of an ongoing 

pattern of psychological, physical, or sexual abuse of the victim.  The trial court 

conducted a trial on these charges in January and February 2010.  At the conclusion of 

trial, the jury convicted Johnson of 9 of the 10 counts as charged, including the 

domestic violence aggravating circumstances.  Johnson was acquitted of count VI.  

Johnson timely appeals.

                                        DISCUSSION

   I.  Confrontation

       Johnson argues the trial court abused its discretion and violated his 

constitutional right to confront Hunter when it ruled that he could not cross-examine 

Hunter regarding her drug use and could not present his related expert testimony.  He 

contends such evidence should have been admissible as relevant to Hunter's 

credibility, to the extent that drug use could have affected her ability to perceive or 

testify accurately about the events in question.  

                                                   5 

No. 65703-8-I/6

       A person accused of a crime has a constitutional right to confront his or her 

accuser.  U.S. Const. amend. VI; U.S. Const. amend. XIV; Wash. Const. art. 1, § 22; 

State v. Darden, 145 Wn.2d 612, 620, 41 P.3d 1189 (2002).  The primary and most 

important component is the right to conduct a meaningful cross-examination of adverse 

witnesses.  State v. Foster, 135 Wn.2d 441, 456, 957 P.2d 712 (1998).  The right to 

cross-examine an adverse witness is not absolute, however.  Darden, 145 Wn.2d at 

620.  Courts may, within their sound discretion, deny cross-examination if the evidence 

sought is vague, argumentative, or speculative.  Id.              at 620-621.  And,        such 

determinations are limited by general considerations of relevance.  Id. at 621; see ER 

401, 403.  A defendant's right to introduce relevant evidence must also be balanced 

against the State's interest in precluding evidence so prejudicial as to disrupt the 

fairness of the trial.  Darden, 145 Wn.2d at 621.  The trial court should exclude 

impeachment evidence if it is only marginally relevant and its probative value is 

outweighed by the potential for prejudice.  See State v. Carlson, 61 Wn. App. 865, 875-

76, 812 P.2d 536 (1991).  

       On January 27 and February 1, 2010, the trial court heard substantial pretrial

argument from each side on the matter of Hunter's drug use and her mental health 

issues.  On January 27, 2010, the trial court indicated that for testimony about Hunter's 

drug use to be elicited, an expert would be required to establish that it would affect her 

ability to perceive the events she testified about accurately.  On February 1, 2010, the 

court decided to hear from Hunter outside the presence of the jury.  Hunter stated that 

she was diagnosed with post traumatic stress disorder, or PTSD, and suffered from 

                                                   6 

No. 65703-8-I/7

nightmares, anxiety attacks, and flashbacks of the violence she suffered.  She also 

stated that she could distinguish between flashbacks and reality; her symptoms did not 

impact her perception of actual events.  When asked about her drug use, Hunter 

testified that she had used PCP (phencyclidine) in late November 2009, and the last 

time she had used the drug was approximately a year and a half prior to that, before 
her second pregnancy.2       The events giving rise to these charges occurred between 

November 2008 and December 2009, and the event that was closest in time to the 

November 2009 drug use, was Hunter's phone conversation with Washington on 

December 8, 2009.  Hunter stated she was not under the influence of PCP during any 

of the relevant events.  

       The defense identified an expert witness, a pharmacologist, to address the 

issue.  However, it made no formal offer of proof to establish -- based on what Hunter 

used, how much she used, and when she used it -- that she was necessarily unable to 

accurately perceive the offenses she alleges were committed.  The trial court ruled that 

Hunter's drug use was not admissible, stating: "I don't think there's any basis for the 

defense to elicit the drug use because there just isn't any way of tying that into what's 

going on here and there is no evidence that it affects either her perception or her ability 

to recall or ability to testify truthfully now."  It also ruled that Hunter could be questioned 

about the symptoms of her PTSD, though not the diagnosis itself, because the 

symptoms were relevant to her perception and ability to recall relevant events.  

       Johnson argues that evidence of Hunter's drug use should have been admitted 

       2 Hunter referred to PCP as "sherm", which the State describes as "generally a 
marijuana cigarette dipped in embalming fluid."  

                                                   7 

No. 65703-8-I/8

and was particularly vital in this case, where her credibility was so central to the State's 

case.  He relies on State v. Brown, 48 Wn. App. 654, 739 P.2d 1199 (1987) and State 

v. Renneberg, 83 Wn.2d 735, 522 P.2d 835 (1974) to support his argument.  In Brown, 

the appellate court ruled that evidence showing the testifying victim had used LSD

(lysergic acid diethylamide) was relevant and should have been admitted at trial.  48

Wn. App. at 660.  But, that case is plainly distinguishable because the victim's drug use 

occurred on the night of the crime, in a way that could have impacted her ability to 

perceive and recall what was occurring during the crime itself.  By contrast, there was 

no evidence that Hunter was under the influence of PCP during any of the relevant 

incidents here.  And, Renneberg similarly does not support Johnson's argument.  While 

the Supreme Court upheld the admission of evidence related to drug use there, that 

was because it addressed the witness's character, rather than credibility.  Renneberg,

83 Wn.2d at 737-38.  The court also recognized how prejudicial evidence of drug use 

could be:

       In view of society's deep concern today with drug usage and its 
       consequent condemnation by many if not most, evidence of drug 
       addiction is necessarily prejudicial in the minds of the average juror.

Id. at 737.  The same reasoning is applicable in this case.  The evidence was that 

Hunter had not used drugs during the relevant events and that her drug use thus did 

not impact her truthfulness or her ability to credibly recall those events.  And, the same 

concerns of undue prejudice exist here as well.

       State v. Tigano, a case the State relied on at trial, is on point.  63 Wn. App. 336, 

818 P.2d 1369 (1991).  The appellate court held that, where there was no evidence of 

                                                   8 

No. 65703-8-I/9

drug use at the time of the events, the trial court exercised sound discretion by 

excluding evidence of the drug use.  Id. at 345.  "For evidence of drug use to be 

admissible to impeach, there must be a reasonable inference that the witness was 

under the influence of drugs either at the time of the events in question, or at the time 

of testifying at trial. . . .  Evidence of drug use on other occasions, or of drug addiction, 

is  generally inadmissible on the ground that it is impermissibly prejudicial."  Id.

(footnote omitted) (citations omitted) (citing Renneberg, 83 Wn.2d at 737).

       Johnson attempts to distinguish Tigano, arguing that if he had been allowed to 

present his expert testimony, he would have established that Hunter's PCP use 

impacted her ability to perceive accurately, even at the time of the events in question or

at trial.  However, Johnson did not make a formal offer of proof.  The drug use was not 

relevant to Hunter's credibility; on this record, his argument is mere speculation.  It had 

no probative value to be balanced against the clear prejudice associated with drug use.  

Darden, 145 Wn.2d at 621.  We hold that Johnson has not demonstrated the trial court 

violated his constitutional right to confrontation and cross-examination of the witness.  

       Finally, Johnson argues this line of questioning on Hunter's drug use should 

have been admissible under the "open door" doctrine.  He points to testimony from 

Hunter where she stated: "My daughter wasn't living with me.  She's living with my 

grandmother because of the abuse."  Under the open door doctrine, a party may "open 

the door" for the other party to pursue evidence that would not otherwise be admissible.  

State v. Berg, 147 Wn. App. 923, 939, 198 P.3d 529 (2008), abrogated on other 

grounds by State v. Mutch, 171 Wn.2d 646, 254 P.3d 303 (2011).  Once a party has 

                                                   9 

No. 65703-8-I/10

raised a material issue, the opposing party is generally permitted to explain, clarify, or 

contradict the evidence.  Id. at 939.  This is the long-recognized rule that when a party 

opens up a subject of inquiry, that party "'contemplates that the rules will permit cross-

examination or redirect examination . . . within the scope of the examination in which 

the subject matter was first introduced.'"  Id. (alteration in original) (quoting State v. 

Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969).  Johnson argues Hunter's testimony 

raises the issue of their daughter's dependency matter, yet paints an incomplete 

picture, suggesting their daughter was found dependent based on Johnson's abuse, 

without mentioning Hunter's drug use.  But, as the State points out, the issue in 

question must be material, and the trial court retains the discretion whether to allow 

additional evidence.  Here, Hunter's reference to her daughter and the dependency 

matter that was ongoing was not material to Johnson's separate criminal case.  The 

trial court acted within its discretion when it declined to apply this doctrine and 

concluded that Hunter's testimony did not open the door to her occasional drug use.

   II. Prosecutorial Misconduct

       Johnson argues the prosecutor committed misconduct by expressing a personal 

view and vouching for Hunter's credibility during closing argument.  Prosecutorial 

misconduct is grounds for reversal if the prosecuting attorney's conduct was both 

improper and prejudicial.  State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011).

The defendant bears the burden of establishing the impropriety of the statements. 

State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997).                    We evaluate a 

prosecutor's conduct by examining it in the full trial context, including the evidence 

                                                  10 

No. 65703-8-I/11

presented, the total argument, the issues in the case, the evidence addressed in the 

argument, and the jury instructions.         Monday, 171 Wn.2d at 675.            Further, the 

prosecutor may not make heated partisan comments that appeal to the passions of the 

jury.  In re Pers. Restraint of Davis, 152 Wn.2d 647, 716, 101 P.3d 1 (2004).  The 

prosecutor has wide latitude in closing argument to draw reasonable inferences from 

the evidence and to express such inferences to the jury.  Stenson, 132 Wn.2d at 727.

       A defendant suffers prejudice only where there is a substantial likelihood that the 

prosecutor's misconduct affected the jury's verdict.  Monday, 171 Wn.2d at 675.  When 

addressed for the first time on appeal, reversal is only required if the conduct is so 

flagrant and ill-intentioned that it caused an enduring and resulting prejudice that could 

not have been neutralized by a curative jury instruction.  State v. Warren, 165 Wn.2d 

17, 43, 195 P.3d 940 (2008).  Prejudice is only established when there is a substantial 

likelihood the prosecutor's comments affected the verdict.  State v. Dhaliwal, 150 

Wn.2d 559, 578, 79 P.3d 432 (2003).

       Johnson first points to two specific comments, which he contends were intended 

to inflame the jurors' emotions and were an improper reflection of the prosecutor's 

personal opinions.  He did not raise an objection following either of these statements, 

and accordingly bears the burden of demonstrating that they were not only prejudicial 

but also flagrant and ill intentioned.  In the first, the prosecutor stated:

              Denise's testimony is corroborated by other witnesses' testimony 
       and by other evidence you may have heard in this case.  Because of that 
       there is no reason to doubt her.

Johnson correctly asserts it is improper for a prosecutor to state a personal belief 

                                                  11 

No. 65703-8-I/12

vouching for the credibility of a witness.  Warren, 165 Wn.2d at 30.  But, this is not 

what the prosecutor did here.  Rather, she asked the jury to find Hunter's testimony to 

be credible based on the evidence at trial.  She encouraged the jury to rely on evidence 

rather than on the prosecutor's opinion.  We hold that this comment was proper and,

certainly, was not flagrant, ill-intentioned, or incurably prejudicial.

       The second comment Johnson takes issue with was:

              In opening, defense told you that Denise was a scorned woman.  I 
       don't believe Denise is scorned and I believe that hell hath no fury like a 
       woman who's gone through nine years of physical and emotional abuse 
       and has come out the other side through domestic violence support 
       advocacy.

Johnson fixates on the prosecutor's use of the phrases "I believe" and "I don't believe"

as evidence of the injection of personal opinion.  But, while the State acknowledges the 

use of such phrases should be avoided, here it is clear that they do not concern the 

elements of the charged crimes, nor do they reflect a particular personal belief about 

Hunter's credibility or veracity.  Indeed, courts weigh such comments not in a vacuum, 

but in the full trial context, including the evidence presented, the total argument, and 

the issues in the case.  Monday, 171 Wn.2d at 675.  Within that greater context, the 

prosecutor's comment did not reflect a personal belief.  It was directly responsive to the 

arguments of defense counsel, arguing why the jury should not hold Hunter's assertive 

demeanor on the witness stand against her when evaluating the credibility of her 

testimony.  Johnson has not adequately demonstrated that this comment was flagrant 

and ill-intentioned, nor has he shown how it prejudiced his trial.

       Johnson also points to a third comment made by the prosecutor and contends 

                                                  12 

No. 65703-8-I/13

that it resulted in cumulative or compounded error when taken together with the alleged 

errors above.  The third statement by the prosecutor that he points to was:

              And then December 8th, really, Toni Washington was going to get 
       up on that stand and spill it for me, really, she was.  I don't think so.  
       Because Toni is exactly where Denise was 14 months, 24 months, five 
       years ago.  She's hooked into a bad relationship - - 

       [DEFENSE COUNSEL]: Objection, your Honor.

       THE COURT: Sustained.

Johnson did not request a curative instruction and one was not given.  This remark 

suggests that Johnson's witness, Washington, would not be truthful or credible 

because she was in a bad relationship.  There was nothing in the record to reflect that 

Washington was in a bad relationship and this comment was thus improper, as the trial 

court recognized and as the State concedes.  However, the record does not establish 

that this comment was flagrant or ill-intentioned.

       Johnson relies on State v. Fleming, 83 Wn. App. 209, 215-16, 921 P.2d 1076 

(1996), in support of his compounding errors argument.  In that case, there were 

multiple errors, which, taken together and by cumulative effect, rose to the level of 

manifest constitutional error.  Id. But, here, because we reject Johnson's arguments on 

prosecutorial misconduct above, Johnson has not demonstrated prejudice at his trial.  

We reject Johnson's prosecutorial misconduct argument.

   III. Trial Irregularity During Opening Statements

       Johnson next argues his constitutional right to a fair trial and an impartial jury 

was violated when his wife, a spectator at trial, interjected with an outburst during 

opening statements.  She came into the courtroom and exclaimed, "Your Honor, she's 

                                                  13 

No. 65703-8-I/14

scaring me" and "[T]his lady is scaring me."  It was clear that she was referring to 

Hunter.  The trial court instructed Johnson's wife to leave.  Johnson did not request a 

curative instruction or move for a mistrial.

       In order to preserve a trial irregularity issue for appeal, counsel must request 

some relief at the time the irregularity occurs.  See State v. Swan, 114 Wn.2d 613, 661, 

790 P.2d 610 (1990) (defense failure to object during prosecution closing argument or 

ask for curative instruction or immediate mistrial precluded appellate review); State v. 

Lord, 161 Wn.2d 276, 291, 165 P.3d 1251 (2007); see also 14A  Karl B. Tegland, 

Washington Practice: Civil Procedure § 30:41, at 281 (2d ed. 2009).  A party may seek 

relief in the form of a curative instruction or immediate mistrial.  See Swan, 114 Wn.2d 

at 661.  Johnson's counsel failed to request any relief from the court at the time.  

Johnson argues the issue should be preserved because his trial attorney mentioned it 

in a motion for a new trial, which she filed shortly before she withdrew and was 

replaced by another attorney following Johnson's conviction.  But, this relief was not 

requested at the time of the irregularity.  Moreover, as the State points out, Johnson's 

new counsel did not ask the trial court to rule on the motion, and it was thus never 

addressed.  

       A party who fails to preserve an error may be entitled to review if the defendant 

raises a manifest error affecting a constitutional right.  RAP 2.5(a)(3).  Johnson asserts

that the error implicated his constitutional right to a fair trial and impartial jury.  A 

defendant claiming such an error has the burden of showing that the alleged error 

actually affected his rights.  State v. McNeal, 145 Wn.2d 352, 357, 37 P.3d 280 (2002).  

                                                  14 

No. 65703-8-I/15

"'[I]t is this showing of actual prejudice      that makes the error "manifest", allowing 

appellate review.'"  Id. (alterations in original) (quoting State v. McFarland, 127 Wn.2d 

322, 333, 899 P.2d 1251 (1995)).  Johnson argues his wife's outburst left the jurors to 

extrapolate and wonder at issues beyond those presented to it.  But, he offers no 

support for the assertion that he suffered actual manifest prejudice to his constitutional 

rights as a result of the outburst.  Indeed, his counsel's failure to seek a curative 

instruction or mistrial at the time suggests it did not seem prejudicial to his case.  

       The cases that Johnson cites in support of his claim involve facts that are 

distinguishable and much more extreme than those in this case.  For example, he cites 

to Woolfork v. State, 81 Ga. 551, 8 S.E. 724 (1889), a case from the Supreme Court of 

Georgia.  The court there granted a new trial, in part because of a disturbance during 

closing argument, when "'from the crowd in the rear of the court-room came, in an 

excited and angry tone, the cry "Hang him!" "Hang him!" and some of the crowd arose 

to their feet.'"  Id. at 727.  Johnson also cites to Manning v. State, 37 Tex. Crim. App. 

180, 184-85, 39 S.W. 118 (1897), where a large crowd of courtroom spectators 

crowded around the jury and the bench.  On several instances, the crowd cheered 

loudly during the prosecution's opening argument without reprimand or attempt at order 

from the court.  Id.  At the end of opening argument, the crowd "broke into a wild and 

uproarious applause, cheering, clapping their hands, and one throwing his hat into the 

air."  Id. at 185.  That the courts in those cases found the spectator conduct to be 

improper and prejudicial has little bearing on the facts of the present case; they do not 

support Johnson's assertion that his wife's outburst constituted a prejudicial irregularity 

                                                  15 

No. 65703-8-I/16

of constitutional magnitude.  

       We hold that Johnson waived this issue by failing to request any form of relief at 

the time of trial.

   IV. Special Verdict

       Johnson argues in the alternative that even if his conviction is affirmed, the 

special verdicts of the domestic violence aggravating factor should be vacated because 

the trial court gave an erroneous unanimity instruction under State v. Bashaw, 169 

Wn.2d 133, 234 P.3d 195 (2010).  

       While unanimity is required to find the presence of a special finding, it is not 

required to find the absence of such a special finding.  Id. at 147.  In State v. Ryan, 160 

Wn. App. 944, 252 P.3d 895, review granted, 172 Wn.2d 1004, 258 P.3d 676 (2011), a 

panel of this court applied Bashaw, and found that a special verdict instruction that was 

essentially identical to the one given in Johnson's case, was erroneous.  In both Ryan

and in this case, that instruction read, in relevant part:

       Because this is a criminal case, all twelve of you must agree in order to 
       answer the special verdict forms.  In order to answer the special verdict 
       forms "yes," you must unanimously be satisfied beyond a reasonable 
       doubt that "yes" is the correct answer.  If you unanimously have a 
       reasonable doubt as to this question, you must answer "no."  

Ryan, 160 Wn. App. at 947 (footnote omitted).  The State does not dispute that this 

instruction was error.  Instead, the State argues that Johnson's claim is barred under 

the invited error doctrine.  Johnson does not address this argument.

       Under the invited error doctrine, a party may not request an instruction and later 

complain on appeal that the requested instruction was given.  State v. Boyer, 91 Wn.2d 

                                                  16 

No. 65703-8-I/17

342, 345, 588 P.2d 1151 (1979).  This doctrine bars relief regardless of whether 

counsel intentionally or inadvertently encouraged the error.  City of Seattle v. Patu, 147 

Wn.2d 717, 720, 58 P.3d 273 (2002).    

       Here, the erroneous instruction was provided by the State, not by Johnson.  But, 

Johnson's trial counsel reviewed the proposed instructions and signed them to indicate 

assent between the parties.  Those actions were not akin to mere silence in the face of 

error.  His counsel indicated affirmative agreement to the instructions by signing them, 

more akin to jointly  proposing them.  We hold that this is  invited error and that 

Johnson's claim is barred.

   V. Offender Score

       Johnson argues the trial court erroneously calculated his offender score during 

sentencing by including his federal bank fraud conviction.  He contends the State failed 

to prove that the conviction was comparable to a Washington felony.  But, the 

Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, provides that any federal 

felony is included in a defendant's offender score whether it is comparable to a 

Washington felony or not.  The SRA provides, in relevant part:

       Federal convictions for offenses shall be classified according to the 
       comparable offense definitions and sentences provided by Washington 
       law.  If there is no clearly comparable offense under Washington law or 
       the offense is one that is usually considered subject to exclusive federal 
       jurisdiction, the offense shall be scored as a class C felony equivalent if it 
       was a felony under the relevant federal statute.

RCW 9.94A.525(3).  As the State points out, this provision makes plain that a prior 

federal felony conviction counts as at least one point, regardless of whether it is 

comparable to a Washington felony.  

                                                  17 

No. 65703-8-I/18

       The prosecutor provided a certified copy of Johnson's federal judgment and 

sentence, as well as a copy of the federal bank fraud statute.  The judgment and 

sentence reflect that Johnson was sentenced to a term of 24 months in custody and 

five  years of supervised release after that, and was ordered to pay $47,028 in 

restitution.  Bank fraud is a felony, and under RCW 9.94A.525(3), this conviction was 

properly included as a point in Johnson's offender score.  We reject Johnson's 

argument.  A comparability analysis was not required

   VI. Cumulative Error

       Lastly, Johnson argues the aggregate effect of the errors he raises above 

denied him a fair trial and merit reversal.  Where several errors standing alone do not 

warrant reversal, the cumulative error doctrine requires reversal when the combined 

effects of the errors denied the defendant a fair trial.  State v. Coe, 101 Wn.2d 772, 

789, 684 P.2d 668 (1984).  Because his above arguments fail, we hold that there was 

no cumulative error.

       We affirm the conviction and the special verdict domestic violence sentencing 

enhancements.

WE CONCUR:

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