State v. Mason

Full title: THE STATE OF WASHINGTON, Respondent, v. KIM HEICHEL MASON, Appellant

Court: The Court of Appeals of Washington, Division One

Date published: Apr 18, 2005

127 Wn. App. 554 (Wash. Ct. App. 2005)

127 Wn. App. 554

127 Wash. App. 554

126 P.3d 34

Opinion

         Reconsideration Denied June 10, 2005.

         [127 Wn.App. 557] Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Appellant.

          Andrea R. Vitalich, King County Prosecutor's Office, Seattle, WA, for Respondent.

         PUBLISHED IN PART

          AGID, J.

          ¶ 1 Kim Mason was convicted of first degree aggravated murder after his friend, Hartanto Santoso, disappeared. Mason appeals, arguing the trial court violated his Confrontation Clause rights by permitting witnesses to testify about statements Santoso made before he disappeared. We hold that out-of-court statements made by [127 Wn.App. 558] unavailable witnesses while in peril, for the purpose of seeking protection, are not " testimonial" and do not fall within the Confrontation Clause's scope as defined by Crawford v. Washington. We affirm.

         FACTS

         ¶ 2 Kim Mason met Hartanto Santoso while the two worked in the same retirement home. Mason was in his early twenties and was a kickboxing instructor and competitor. Santoso, in his early thirties, was an immigrant from Indonesia. The two were friends for approximately two years. Toward the end of 2000, Mason began running into financial difficulties, and his friends suspected that he was addicted to drugs. At that time, Santoso gave money to Mason and helped him find additional jobs.

         ¶ 3 On the afternoon of January 23, 2001, Mason invited Santoso to his home. While Santoso's back was turned, Mason strangled him into unconsciousness then bound and gagged him with duct tape. When Santoso awoke, Mason threatened him with a loaded gun and forced him to write his roommate a letter saying that he was leaving town. Mason then forced Santoso to write him a check for the balance of his bank account. At that point, Mason attempted to fill a syringe with drain cleaner and threatened to inject Santoso. Santoso calmed him down and ultimately convinced Mason to release him. Santoso promised not to contact the police.

          ¶ 4 The next day, Santoso's friend talked Santoso into going to the police department to report the crime. Santoso first went to the Kirkland police, but later that day he spoke with the Redmond police because they had jurisdiction. Police searched Mason's home and found items that corroborated Santoso's description of the events. After he was arrested, Mason told the police that he strangled and bound Santoso and threatened him with a gun, but asserted he did so in self-defense because Santoso had attempted to grab Mason's genitals. Mason claimed the gun was unloaded and [127 Wn.App. 559] that he never displayed a syringe or demanded money from Santoso.

         ¶ 5 Mason was charged with first degree kidnapping and first degree attempted robbery, but on January 31, 2001, he was released pending trial. When Santoso learned that Mason had been released, he called his King County victim's advocate and expressed his profound fear that Mason would kill him. The victim's advocate helped Santoso obtain a no contact order.

          ¶ 6 At approximately 10:45 pm on February 19, 2001, Santoso's neighbors heard glass breaking and muffled noises coming from Santoso's apartment. They saw Santoso's car leave the parking lot about 10 minutes later. The next day, neighbors noticed that Santoso's front door was open and a trail of blood led from the door to the parking lot. Police found massive amounts of blood in Santoso's bedroom. The bedroom window was broken, and a cement cinder block was on the floor. On February 21, police found Santoso's car in the Sea-Tac airport parking lot. The parking stub found in the car indicated that it entered the lot on February 19 at 11:51 pm. There was a large quantity of blood inside the car, and some was on the car's exterior. The blood in the apartment, parking lot, and automobile all belonged to Santoso. His body was never found, but police presumed he was dead. Since February 19, 2001, Santoso has not collected any paychecks, established a public record of any kind, or contacted any friends or relatives.¹

1 Mason's defense focused on the possibility that Santoso staged his own disappearance.

          ¶ 7 When questioned, Mason told the police that he was at his girlfriend Marina Madrid's home on February 19, and Madrid corroborated that alibi. Police later learned that Mason had a significant cut on his upper right thigh that was likely inflicted on February 19 by a knife. In early April, police learned that Mason changed his name and put a false address on his driver's license. Also in April, Marina Madrid admitted to police that on the evening of February 19, Mason called her and asked her to pick him up at the [127 Wn.App. 560] airport and to bring a change of clothes. When Madrid arrived at the airport, Mason had blood on his hands and said, " Santoso won't be a problem anymore." Madrid noticed a cut on Mason's leg, and Mason explained that he had somehow gotten cut during the attack. Madrid helped Mason deposit his bloodied clothes in a dumpster and pick up his car, which was parked near Santoso's residence. Madrid also helped stitch and bandage Mason's cut. During the following weeks, Mason told Madrid that he broke Santoso's bedroom window, entered the apartment, and stabbed Santoso multiple times. He put the body in Santoso's car, concealed the body in an undisclosed location, and left the car at the airport.

         ¶ 8 Madrid later told the police that Mason had thrown a knife out of the car window while they drove along I-405. Police found the knife in bushes along the highway, and Santoso's blood was on the knife. Police also found Santoso's blood on the passenger side floorboard of Madrid's car, and they found Mason's blood on the passenger seat of Madrid's car. There was a mixed blood sample on the driver's seat of Santoso's car, near where the driver's right thigh would be.

         ¶ 9 Mason was charged with first degree aggravated murder. After a 10-week jury trial, Mason was convicted and sentenced to life imprisonment without possibility of parole.

         DISCUSSION

         I. Mason's Right to Confront Witnesses

         A. The Sixth Amendment and Crawford v. Washington

          ¶ 10 Mason challenges the trial court's decision to allow police officers and a victim's advocate to testify about statements Santoso made to them. He argues that admitting the out-of-court statements violated his right to confront witnesses against him, as guaranteed by the sixth amendment of the United States Constitution and [127 Wn.App. 561] article I, section 22 of Washington's Constitution. Mason relies on Crawford v. Washington, ² a case recently decided by the United States Supreme Court.

2 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

          ¶ 11 Before Crawford, an out-of-court statement made by an unavailable witness was admissible if the statement had adequate indicia of reliability. ³ A trial court could infer reliability if the statement fell within a firmly rooted hearsay exception.⁴ The excited utterance exception is a firmly rooted hearsay exception,⁵ and thus out-of-court statements made by unavailable witnesses were admissible if they qualified as excited utterances.

3 State v. Thomas, 150 Wash.2d 821, 855-56, 83 P.3d 970 (2004) (citing State v. Strauss, 119 Wash.2d 401, 415, 832 P.2d 78 (1992)).

4 Id. at 856,83 P.3d 970 (citing Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), abrogated by Crawford, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177).

5 Id. at 853, 83 P.3d 970 (citing State v. Woods, 143 Wash.2d 561, 595, 23 P.3d 1046, cert. denied, 534 U.S. 964, 122 S.Ct. 374, 151 L.Ed.2d 285 (2001)).

          ¶ 12 But in Crawford, the Supreme Court stated that " [d]ispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes." ⁶ Instead, a court may admit a witness's out-of-court testimonial statements only if the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness.⁷ Non-testimonial statements may be admitted if they fall within a hearsay exception,⁸ and the Crawford rule applies only to those statements that are " testimonial."

6 124 S.Ct. at 1371.

7 Id. 541 U.S. 36, 124 S.Ct. at 1369.

8 Id. at 1374 (" Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law— as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether." ).

          ¶ 13 In this case, the trial court admitted statements Santoso made to four police officers and a victim's advocate. These statements involved Santoso's description of the [127 Wn.App. 562] January 23rd incident, as well as his profound fear of Mason after the incident. Because Mason's trial was held before Crawford, the trial court admitted many of Santoso's statements as excited utterances. But under Crawford, if the statements were testimonial, they were inadmissible because Mason never had the opportunity to cross-examine Santoso. We must therefore examine Santoso's statements to determine whether they were testimonial.

         ¶ 14 The Supreme Court declined to provide a comprehensive definition of " testimonial," ⁹ but it did define " testimony" as " ‘ [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ " ¹⁰ " An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." ¹¹ As examples of testimonial statements, the Court lists affidavits, custodial examinations, depositions, prior testimony,¹² confessions, or similar pretrial statements that the declarant would reasonably expect to be used in a prosecution.¹³ The Court also refers to " ‘ statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial[.]’ " ' ¹⁴ Statements taken by police officers during the course of interrogations are testimonial.¹⁵

9 Id.

10 Id. at 1364 (alteration in original) (quoting 1 N. Webster, An American Dictionary of the English Language (1828)).

11 Id.

12 This includes prior testimony from a preliminary hearing, before a grand jury, or at a former trial. Id. at 1374.

13 Id.

14 Id. at 1364 (quoting Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 3).

15 Id.

          ¶ 15 Crawford addresses statements made to government officials during examinations or interrogations initiated [127 Wn.App. 563] by those officials. ¹⁶ As soon as the focus moves to disputed out-of-court statements voluntarily made by the witness during witness-initiated contact, confusion arises. For example, since Crawford, several courts have considered whether statements made during 911 calls are testimonial for Sixth Amendment purposes. ¹⁷ When determining whether statements voluntarily made to government officials during witness-initiated contact are testimonial, courts have looked to a variety of factors. These include the extent to which the interaction takes place in a formal setting such as structured questioning or recording, ¹⁸ whether the statement was made as part of the incident or part of the prosecution,¹⁹ and whether the witness had time for contemplation before giving the statement.²⁰

16 See, e.g., id. at 1357-58 (the Crawford Court examined the admissibility of a tape-recorded statement made during a police interrogation); id. at 1359-63 (examining the historical background of the Confrontation Clause and discussing controversial examination practices); id. at 1363 (" the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." ).

17 See, e.g., State v. Powers, 124 Wash.App. 92, 99 P.3d 1262 (2004) (citing People v. Moscat, 3 Misc.3d 739, 777 N.Y.S.2d 875 (2004); People v. Cortes, 4 Misc.3d 575, 781 N.Y.S.2d 401 (2004); Leavitt v. Arave, 371 F.3d 663, opinion amended and superseded, 383 F.3d 809 (9th Cir.2004)); State v. Wright, 686 N.W.2d 295 (Minn.Ct.App.2004), review granted Nov. 23, 2004.

18 See, e.g., State v. Forrest, 164 N.C.App. 272, 596 S.E.2d 22, 27, review on add'l issues denied, 359 N.C. 193, 607 S.E.2d 653 (2004); People v. Mackey, 5 Misc.3d 709, 785 N.Y.S.2d 870, 873-74 (2004) (citing People v. Newland, 6 A.D.3d 330, 775 N.Y.S.2d 308, leave to appeal denied, 3 N.Y.3d 679, 784 N.Y.S.2d 17, 817 N.E.2d 835 (2004)).

19 See, e.g., Powers, 99 P.3d at 1266 (citing Moscat, 777 N.Y.S.2d at 880).

20 See, e.g., Forrest, 596 S.E.2d at 27; Moscat, 777 N.Y.S.2d at 878.

          ¶ 16 But central to each of these factors, and most important in determining whether a statement is testimonial in this context, is the witness's purpose in initiating police contact and making the statement. ²¹ The witness's purpose is essential because it goes to whether or not the declarant would reasonably expect his or her statement to be used at a later trial, a factor which is the centerpiece of the [127 Wn.App. 564] Supreme Court's definition of " testimonial." ²² Courts must ask whether the declarant initiated the police contact to get help, or whether he or she did so to report a crime or provide information to assist police in investigating, apprehending, or convicting a suspect.²³

21 See, e.g., Powers, 99 P.3d at 1266; Mackey, 785 N.Y.S.2d at 874; Moscat, 777 N.Y.S.2d at 879; Wright, 686 N.W.2d at 302.

22 Crawford, 124 S.Ct. at 1364.

23 See, e.g., Powers, 99 P.3d at 1266; Mackey, 785 N.Y.S.2d at 874; Moscat, 777 N.Y.S.2d at 879; Wright, 686 N.W.2d at 302.

          ¶ 17 If a declarant makes a statement while seeking protection, it is unlikely that he or she intends to make a formal statement, is aware that he or she is bearing witness, or is aware that his or her utterances might ultimately be used in a prosecution. The witness's focus is on getting help, not establishing or proving a fact to further a prosecution. Therefore, statements seeking help made by someone in immediate peril are not testimonial. We hold that, in determining whether a statement is testimonial for Sixth Amendment purposes, courts must perform a fact-specific analysis to ascertain: (1) whether the declarant initiated the statement, (2) the formality of the setting, and (3) the declarant's purpose in making the statement. We further hold that statements made while in peril for the purpose of seeking protection, rather than for the purpose of bearing witness, are not testimonial and thus not subject to Crawford's cross-examination requirement.

         1. John Haslip's Testimony

          ¶ 18 First, Mason challenges the trial court's decision to admit certain aspects of John Haslip's testimony. Haslip, a corporal with the Kirkland police department, testified that on January 24, Santoso and a friend came to the police station and spoke with him. According to Haslip, Santoso's eyes were bloody, his face was swollen, and his neck was bruised. Santoso appeared to be extremely frightened. Haslip asked Santoso questions to figure out what had happened to him, and Santoso was reluctant to answer at first. Eventually, Santoso told Haslip about what happened at Mason's home the day before. After speaking with [127 Wn.App. 565] Santoso, Haslip realized that the incident took place in Redmond, so he referred Santoso to the Redmond police department.

          ¶ 19 The court admitted this testimony as an excited utterance under ER 803(a)(2). But, assuming this was error under Crawford, the error was harmless. A constitutional error is harmless if, beyond a reasonable doubt, a jury would have reached the same result without the error.²⁴ In this case, the jury would have reached the same result without Haslip's recitation of Santoso's out-of-court statements. First, forensic evidence and Marina Madrid's testimony alone could have been sufficient to convict Mason. And second, Santoso's roommate, employer, emergency room physician, and sister all testified about Santoso's description of the January 23rd incident. None of this testimony violated Crawford, ²⁵ and Mason does not dispute it.

24 State v. Whelchel, 115 Wash.2d 708, 728, 801 P.2d 948 (1990) (citing State v. Guloy, 104 Wash.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1208, 89 L.Ed.2d 321 (1986); State v. Bergman, 44 Wash.App. 271, 275, 721 P.2d 522 (1986)).

25 Crawford indicates that government officials must somehow be involved in the creation of a statement if the statement is to be deemed testimonial. In re T.T., 351 Ill.App.3d 976, 988, 287 Ill.Dec. 145, 815 N.E.2d 789 (2004).

         2. John Berberich's Testimony

          ¶ 20 Mason next disputes the admissibility of certain portions of John Berberich's testimony. Berberich is a detective with the Redmond police department who responded to Haslip's call and met with Santoso on January 24. He described Santoso's visible injuries and testified that while he spoke, Santoso periodically cried, and his tears were blood-red. Santoso told Berberich that he was afraid for his life.

          ¶ 21 While Mason does not challenge the admission of Santoso's statement about being afraid, he does challenge Berberich's frequent references to Santoso's out-of-court statements while testifying about items he found in Mason's home, as these items corroborated Santoso's description [127 Wn.App. 566] of the January 23rd incident. For example, Berberich testified that he seized a roll of duct tape from Mason's home because Santoso told him that he had been duct taped on his ankles, wrists, and face. And Berberich seized a loaded firearm found in Mason's home because Santoso had told him that Mason displayed a firearm during the incident. The court instructed the jury on several occasions that the testimony was being admitted only to explain why Berberich seized certain items from Mason's home and that it should not consider the testimony for the truth of the matter asserted within the statement.

         ¶ 22 The trial court did not err by permitting this testimony because the testimony was clearly not admitted for the truth of the matter asserted. ²⁶ The trial court thoroughly instructed the jury that it could consider the statements only to explain why Berberich seized certain items. ²⁷ The prosecuting attorney did occasionally argue as if the information were admitted for the truth of the matter asserted, but the defense did not object and Mason does not raise the issue on appeal. In this context, the statements were not admitted so that Santoso could bear witness against Mason, and thus they were not subject to Crawford's limitations.

26 When out-of-court assertions are not introduced to prove the truth of the matter asserted, they are not hearsay and no Confrontation Clause concerns arise. Crawford, 124 S.Ct. at 1369 n. 9 (citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985)).

27 Mason challenges the relevance of the non-hearsay purpose for which the court admitted these statements. But the evidence seized from Mason's home is relevant to show what took place on January 23. That incident is, in turn, relevant and admissible for reasons discussed below.

         3. Kristy Roze's Testimony

          ¶ 23 Mason also contests the admission of certain portions of Kristy Roze's testimony. Like Berberich, Roze is a detective with the Redmond police department. She testified that Santoso expressed fear about his safety, and the court admitted the statement to establish Santoso's state of mind at that time. Roze also testified that Santoso asked [127 Wn.App. 567] her if he could sleep at the police department under a desk or in a jail cell because he was afraid.

          ¶ 24 Roze's testimony does not implicate Crawford concerns. First, the court did not admit Santoso's statements to prove the truth of the matter asserted. Second, these statements do not implicate Mason, nor do they prove some fact helpful to the prosecution. Nor would Santoso have any reason to expect these statements to be used for prosecution purposes. Instead, Santoso was expressing his fear and asking for Roze's help to ensure his safety. The trial court did not err.

         4. Anne Malins' Testimony

         ¶ 25 Detective Anne Malins, also with the Redmond police department, testified that she took Santoso's checkbook records into evidence. She explained that she did so because Santoso stated that he had previously written one check to Mason and had begun to write a check during the January 23rd incident. The court admitted the statement only to establish why Malins took the checkbook records, and it instructed the jury about the limited reason for admitting the testimony. For the same reasons discussed in the context of Berberich's testimony, the trial court did not err here. The court clearly limited the admissibility of this testimony, and in this context, Santoso's statement was not introduced to implicate Mason. Crawford is inapplicable.

         5. Linda Webb's Testimony

          ¶ 26 Finally, Mason challenges the admission of Linda Webb's testimony about certain statements Santoso made to her. Webb, a domestic violence victim's advocate, testified that she assisted Santoso with " safety planning" on January 29, six days after the assault. She testified that Santoso's eyes were bright red, he was visibly shaking, and he was crying. She also testified that he was reluctant to get a protective order because he was afraid. Webb testified that Santoso phoned her because Mason had recently been released from jail, and Santoso was hysterical and frightened. [127 Wn.App. 568] He told Webb that Mason was going to kill him; that he knew he was going to die. He begged Webb to put him in a jail cell or let him sleep in her office so he could be safe. Webb also testified that she and Santoso discussed the possibility of his relocating, but that he could not leave his job because he was sending money to his family in Indonesia. And Webb testified that Santoso expressed his fear that Mason's father, a retired police chief, would retaliate against Santoso as police often did in his native Indonesia.

         ¶ 27 Mason argues that a reasonable person in Santoso's position would expect these statements to be used to further the investigation and prosecution against Mason. We disagree. Every statement Webb testified to involved Santoso's profound fear and his pleas for help. Santoso was seeking protection, not bearing witness to a crime. And because Webb was acting as a victim's advocate charged with helping Santoso find safety, Santoso had little reason to expect that his statements to her would ultimately be used to prosecute Mason. We conclude that these statements were not testimonial and that the trial court properly admitted them.

         B. Washington's Confrontation Clause: Article One, Section 22

          ¶ 28 Mason also argues that the trial court's decision to admit the testimony discussed above violated his confrontation rights guaranteed by article I, section 22 of the Washington Constitution, because that clause is more protective of confrontation rights than is the Sixth Amendment. We reject Mason's argument.

          ¶ 29 In State v. Gunwall, the Washington Supreme Court held that a court must consider certain factors when determining whether Washington's constitution should be interpreted as extending broader rights than the federal constitution.²⁸ Parties asserting a violation of the state's [127 Wn.App. 569] constitution must brief and discuss these factors.²⁹ But a party need not provide a Gunwall analysis if the Washington Supreme Court has already analyzed the constitutional provision in the context at issue. ³⁰ Instead, the court must analyze the party's claim according to " established principles of state constitutional jurisprudence." ³¹ If the Supreme Court has not done the independent state constitutional analysis in that context and the party does not perform a Gunwall analysis, the reviewing court must use the federal constitutional analysis.³²

28 106 Wash.2d 54, 61-63, 720 P.2d 808 (1986).

29 Id. at 62, 720 P.2d 808 (citing In re Rosier, 105 Wash.2d 606, 616, 717 P.2d 1353 (1986)).

30 State v. Reichenbach, 153 Wash.2d 126, 101 P.3d 80, 84 n. 1 (2004) (citing State v. White, 135 Wash.2d 761, 769, 958 P.2d 982 (1998)).

31 White, 135 Wash.2d at 769, 958 P.2d 982.

32 Reichenbach, 101 P.3d at 84 n. 1 (citing State v. O'Neill, 148 Wash.2d 564, 582, 62 P.3d 489 (2003)).

         ¶ 30 In this case, Mason argues that he did not need to provide a Gunwall analysis because the Washington Supreme Court already recognized that the state constitution's confrontation right is broader than the federal constitution's. Mason cites State v. Foster ³³ and State v. Smith ³⁴ to support this proposition. In Foster, the Supreme Court analyzed whether a statute permitting child victims to testify using closed-circuit television violated the state or federal confrontation clauses. Although the lead opinion held that the state constitution's Confrontation Clause is identical to that of the federal constitution,³⁵ five concurring and dissenting justices concluded that Washington's Confrontation Clause provides greater protection.³⁶ But Foster did not establish a firmly-rooted principle of state constitutional jurisprudence, as it only discussed the constitutional provisions in a context entirely distinct from the one presented here.

33 135 Wash.2d 441, 957 P.2d 712 (1998).

34 148 Wash.2d 122, 59 P.3d 74 (2002).

35 135 Wash.2d at 466, 957 P.2d 712.

36 Id. at 473-74, 481-94, 957 P.2d 712.

         [127 Wn.App. 570] ¶ 31 In Smith, the court examined whether a trial court may consider the possibility of testimony using closed-circuit television when determining whether a witness is unavailable for Confrontation Clause purposes. The court recognized the majority opinion in Foster, but refused to analyze the defendant's state constitutional claim because the defendant had not briefed the Gunwall factors and the court had " not yet decided whether article I, section 22 provides greater protection than the federal provision in this situation. " ³⁷ The Supreme Court has thus made it clear that a party asserting an independent state basis for its constitutional argument must provide a Gunwall analysis unless the court has already analyzed the argument in that context. The Supreme Court has never addressed the confrontation issue in the context currently before us. Therefore, in the absence of a Gunwall analysis, we reject Mason's state constitutional argument.

37 148 Wash.2d at 131, 59 P.3d 74 (emphasis in original).

         C. Forfeiture by Wrongdoing

         ¶ 32 The State also argues that Mason's confrontation claim fails on alternative grounds. According to the State, Mason forfeited his confrontation rights by causing the witness to be unavailable in the first place. The doctrine of forfeiture by wrongdoing ³⁸ has not been expressly adopted by Washington courts, and the State urges the court to do so now. But because we conclude that there has been no harmful violation of Mason's confrontation rights, we need not reach this issue.

38 The doctrine is also known as forfeiture by misconduct or waiver by misconduct.

          ¶ 33 Mason also argues the court erred by (1) excluding an opinion of the defense's DNA (deoxyribonucleic acid) expert, (2) permitting certain witnesses to testify that Santoso was dead and Mason had murdered him, (3) admitting evidence of Mason's prior bad acts, (4) failing to include aggravating factors in the " to convict" jury instruction, (5) permitting the jury to convict of aggravated murder [127 Wn.App. 571] despite insufficient evidence of burglary as an aggravating factor, and (6) informing the jury that the State was not seeking the death penalty in this case. The remainder of this opinion has no precedential value. Therefore, it will not be published but has been filed for public record. See RCW 2.06.040; CAR 14.

         II. Mason's DNA Expert Witness and the Frye Test

         ¶ 34 Police found a great deal of blood on the interior and exterior of Santoso's car. While all of the blood on the exterior and most of the blood on the interior matched Santoso's genetic profile, samples from the driver's seat contained a mixture of blood belonging to Santoso and another source.

         ¶ 35 During its case in chief, the State called Dr. Edward Blake, a forensic scientist specializing in DNA, to testify about his findings after analyzing the mixed DNA sample. Blake testified that the chances that Mason was not a source of the sample were one in 14 trillion. In response, defense counsel sought to introduce the testimony of neurogeneticist Dr. Randall Libby. The State interviewed Libby the night before he was to testify. During that interview, Libby disputed Blake's method of interpreting the sample, discussed the difficulties associated with interpreting mixed DNA samples and the inadequacies of Dr. Blake's method of interpretation, and stated that 30 percent to 80 percent of the population cannot be excluded from a mixed DNA sample. According to the State, Libby also stated that he was unable to provide names of scientists or published papers to support his view and that his opinion was based only on his 25 years of experience as a geneticist. Based on this interview and citing Frye v. United States, ³⁹ the State moved in limine to exclude that portion of Libby's testimony that states that at least 30 percent of the population cannot be ruled out as possible sources of the DNA mixture. Under Frye, scientific evidence is admissible only if the theory upon which it is based, and the technique used to implement that theory, is generally accepted in the relevant scientific community. ⁴⁰

39 293 F. 1013 (D.C.Cir.1923).

40 State v. Gentry, 125 Wash.2d 570, 585-86, 888 P.2d 1105 (1995) (citing Frye, 293 F. at 1014; State v. Cauthron, 120 Wash.2d 879, 886-89, 846 P.2d 502 (1993)), cert. denied, 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 79 (1995).

         ¶ 36 The trial court conducted a Frye hearing the next day. During that hearing, Libby provided a treatise to support his opinions and named several scientists who shared his interpretation. The court found that the defense presented no scientific authority supporting Libby's specific conclusion that 30 percent to 80 percent of the general population cannot be excluded when interpreting blood mixtures. The court noted that if Libby's statistic was true, there would be no use in interpreting mixed DNA samples at all, as such samples would be worthless. And if mixed DNA samples were worthless, there would be some authority saying so, but the court found none. Therefore, the court excluded Libby's testimony, but only that portion where he opined that at least 30 percent of the population cannot be excluded from mixed DNA samples.

         ¶ 37 After the Frye hearing, the State moved for access to Libby's time and billing records. The defense refused to provide them, and the court sanctioned the defense by excluding Libby's testimony altogether. When the defense still refused to provide Libby's records, the court reversed itself, allowing the testimony but permitting the State to raise the records issue during cross-examination. The court expressed its concern that not calling Libby would significantly compromise the defense, since the mixed DNA evidence was " certainly the most damaging forensic evidence to the defense in this case." But given the court's decision to exclude the " 30% to 80%" portion of Libby's testimony, the defense decided to withdraw Libby as a witness altogether. After the defense rested, it filed an offer of proof to preserve the issue for appeal.

         ¶ 38 Mason now argues that the court erred by excluding the " 30% to 80%" portion of Libby's testimony. We question whether the defense preserved this error for appeal, as it voluntarily withdrew Libby as a witness. But even if the defense did preserve the issue, the court did not err. We review a trial court's Frye ruling de novo, and our review involves a mixed question of law and fact.⁴¹

41 State v. Gore, 143 Wash.2d 288, 304, 21 P.3d 262 (2001) (citing State v. Copeland, 130 Wash.2d 244, 255, 922 P.2d 1304 (1996); State v. Russell, 125 Wash.2d 24, 41, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129, 115 S.Ct. 2004, 131 L.Ed.2d 1005 (1995)).

         ¶ 39 In his appellate brief, Mason argues

Had Dr. Libby been allowed to testify, he would have explained the flaws in Dr. Blake's overinflated claim that Mr. Mason was the contributor to the DNA in the car to these extreme odds. Dr. Libby would have cautioned the jury against accepting this testimony, and explained how many scientists prefer to calculate the likelihood of DNA in a mixture belonging to a certain source. Instead of 14 trillion to one, Dr. Libby calculated the odds to be one in 121,951 for the black population and one in 833,333 for the Caucasian population....

         But the only portion of Libby's testimony that the court excluded was his opinion that 30 percent to 80 percent of the population cannot be excluded from a mixed DNA sample. Clearly, Libby could have offered the testimony discussed in Mason's brief. The court did not refuse to admit Libby's opinion that mixed DNA samples are difficult to interpret, nor did it take issue with Libby's preferred statistical calculation method.⁴² It simply wanted scientific confirmation of Libby's " 30% to 80%" statistic, and the defense presented none.⁴³ The trial court did not err by refusing to admit this small portion of Libby's testimony.

42 In his testimony, Libby planned to discuss four different methods of statistical calculations used when interpreting DNA mixtures: (1) no calculation-qualitative statement; (2) match probability estimation after deducing genotypes; (3) likelihood ratio calculation; and (4) exclusion probabilities. Dr. Blake apparently used the second method, while Libby would have recommended using the fourth method. In his offer of proof, Mason presents evidence that the fourth method is generally accepted by the scientific community. But the method of statistical calculation is not at issue on appeal.

43 In fact, in his declaration attached to Mason's motion to reconsider the Frye ruling, Libby attempted to repudiate the 30 percent statistic, stating that the State's characterization of his testimony did not actually reflect his opinion.

         III. Improper Opinion Testimony

         ¶ 40 Mason next argues that the trial court improperly admitted opinion testimony about his guilt. We review a trial court's decision to admit or exclude evidence for an abuse of discretion.⁴⁴ A trial court abuses its discretion only if no reasonable person would adopt its view.⁴⁵

44 State v. Demery, 144 Wash.2d 753, 758, 30 P.3d 1278 (2001) (citing State v. Rivers, 129 Wash.2d 697, 709-10, 921 P.2d 495 (1996)).

45 Id. (citing State v. Sutherland, 3 Wash.App. 20, 21, 472 P.2d 584, review denied, 78 Wash.2d 996 (1970)).

         ¶ 41 Generally, no witness, lay or expert, may testify to his or her opinion about the defendant's guilt, whether directly or by inference.⁴⁶ To do so would unfairly prejudice the defendant, as it invades the exclusive province of the jury.⁴⁷ To determine whether a statement is impermissible opinion testimony or a permissible opinion pertaining to an ultimate issue, courts must consider " the type of witness involved, the specific nature of the testimony, the nature of the charges, the type of defense, and the other evidence before the trier of fact." ⁴⁸

46 City of Seattle v. Heatley, 70 Wash.App. 573, 577, 854 P.2d 658 (1993) (citing State v. Black, 109 Wash.2d 336, 348, 745 P.2d 12 (1987); State v. Garrison, 71 Wash.2d 312, 427 P.2d 1012 (1967)), review denied, 123 Wash.2d 1011 (1994).

47 Demery, 144 Wash.2d at 759, 30 P.3d 1278 (citing Heatley, 70 Wash.App. at 577, 854 P.2d 658).

48 Heatley, 70 Wash.App. at 579, 854 P.2d 658 (citing State v. Sanders, 66 Wash.App. 380, 832 P.2d 1326 (1992)).

         A. Dr. Harruff's Testimony

         ¶ 42 First, Mason challenges Dr. Richard Harruff's testimony. Harruff, the chief medical examiner for the King County Medical Examiner's Office, issued a presumptive death certificate after reviewing photographs of Santoso's apartment and car, as well as other evidence. Harruff opined that, based on the volume and distribution of the blood as indicated by the photographs, Santoso's injuries were life-threatening. Harruff emphasized that this was his opinion, and he made it clear that he had no actual knowledge of whether Santoso was in fact dead. Harruff never said that Mason killed Santoso.

         ¶ 43 At trial, Mason challenged this testimony on the basis that it improperly placed before the jury a government official's opinion on a central issue. The trial court later reversed its decision to admit the testimony and instructed the jury that it should disregard Harruff's opinion that Santoso was dead and the fact that Harruff issued a presumptive death certificate. Mason now argues that despite the court's attempt to remedy its perceived error, the damage was done and Mason was irreversibly prejudiced. But the trial court did not err by admitting the testimony in the first place.

         ¶ 44 It is true that courts must exercise care when government officials express their opinions, as those opinions may unduly influence the fact finder. ⁴⁹ But opinion testimony is not improper if it is not a direct comment on the defendant's guilt, is helpful to the jury, and is based on inferences from the evidence.⁵⁰ Nor is opinion testimony improper merely because it encompasses an ultimate issue of fact reserved for the jury. ⁵¹ And " [t]he fact that an opinion encompassing ultimate factual issues supports the conclusion that the defendant is guilty does not make the testimony an improper opinion on guilt." ⁵²

49 State v. Dolan, 118 Wash.App. 323, 329, 73 P.3d 1011 (2003) (citing State v. Carlin, 40 Wash.App. 698, 703, 700 P.2d 323 (1985)).

50 Heatley, 70 Wash.App. at 578, 854 P.2d 658.

51 Id. at 578-79, 854 P.2d 658. See also ER 704.

52 Heatley, 70 Wash.App. at 579, 854 P.2d 658 (emphasis in original).

         ¶ 45 In this case, Harruff made it very clear that he was only expressing his opinion about whether, given the evidence, Santoso's injuries were life-threatening. Harruff clearly said nothing about Mason's guilt. And while he did express an opinion about an issue that was ultimately for the jury to decide, this was not improper as it was helpful to the jury and based on his experience and his assessment of the evidence. Harruff never told the jury what conclusion to reach, and he emphasized that the death certificate issued was only presumptive. Finally, during Harruff's testimony, the trial court reminded the jury that this was only Harruff's opinion and it was only for the jury to decide whether Santoso was in fact dead. The trial court did not abuse its discretion when it initially admitted Harruff's testimony.

         B. Other Witnesses' Testimony

         ¶ 46 Mason also challenges the court's decision to admit certain opinion statements made by Marina Madrid, Kristine Riley, and Randy Rogers.

         1. Marina Madrid's Testimony

         ¶ 47 On five occasions during her three-day testimony, Marina Madrid inadvertently opined that Mason killed Santoso. First, when asked why she moved out of the state, Madrid stated, " Because I was traumatized that my boyfriend had committed a murder." The court sustained defense counsel's objection and instructed the jury to disregard the statement. The court also reminded the jury that it was for the jury to decide whether a murder was committed and, if so, who committed it, " based on the evidence that's introduced in this case rather than anybody's opinion." Moments later, the State asked Madrid whether Mason killed Santoso and Madrid responded, " He did." The court sustained defense counsel's objection without comment, presumably relying on the limiting instruction it had given the jury seconds before.

         ¶ 48 Third, when asked why she initially lied about Mason's alibi, Madrid responded, " Because I loved him and I didn't want him to get in trouble, and I knew that he had killed him and I had to give an alibi." The court then instructed the jury that Madrid's statement was admitted only " to explain why the witness did what she did and not for the truth of any statements asserted within that answer." Fourth, when asked what she thought when Mason told her that Santoso would not be a problem anymore, Madrid answered, " [t]hat he had killed him." Defense counsel did not object and the court gave no limiting instruction. And finally, Madrid testified about the disbelief she felt when she was sewing Mason's leg wound. The State asked why she felt disbelief, and Madrid responded, " [e]verything about it; the fact that he had just killed him [.]" In response to defense counsel's objection, the trial court admitted the statement only to establish Madrid's mental state at the time that she was sewing Mason's wound.

         ¶ 49 Courts must consider the purpose for which evidence was offered, ⁵³ and in this case, the court admitted certain statements for legitimate purposes other than to establish the truth of the matter asserted. The court gave adequate limiting instructions that either instructed the jury to disregard statements entirely, or to consider statements for limited purposes. Courts presume that jurors follow limiting instructions, including instructions to disregard improper evidence.⁵⁴ It is true that the court gave no limiting instruction in the fourth instance when Madrid testified that she thought Mason had killed Santoso. But defense counsel failed to object, and Madrid was clearly testifying about her mental impression at the time that Mason made a particular statement to her. The trial court did not abuse its discretion here.

53 Demery, 144 Wash.2d at 761, 30 P.3d 1278.

54 State v. Russell, 125 Wash.2d 24, 84, 882 P.2d 747 (1994) (citing State v. Swan, 114 Wash.2d 613, 661-62, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046, 111 S.Ct. 752, 112 L.Ed.2d 772 (1991)), cert. denied, 514 U.S. 1129 (1995).

         2. Kristine Riley's Testimony

         ¶ 50 Kristine Riley, Mason's former girlfriend, testified that she was not candid with police when she was questioned in April 2001, but that she called the police one month later to report evidence implicating Mason. When the State asked her why she changed her mind about talking with the police, Riley answered, " I was a little more clear thinking, and I was no longer believing that [Mason] was innocent of the accusations." The trial court sustained defense counsel's objection and instructed the jury that the testimony was admitted only for the purpose of establishing Riley's reasons for calling the police. The judge also instructed, " [y]ou should not consider her belief or lack of belief in any particular proposition for any reason." The court admitted Riley's statement for a legitimate purpose and provided the jury with a proper limiting instruction. It did not abuse its discretion.

         3. Randy Rogers' Testimony

         ¶ 51 Randy Rogers, the lead detective in this case, was describing an interview conducted during the course of his investigation when he referred to Mason as a suspect with a " powerful motive." The trial court overruled defense counsel's objections and admitted the testimony for the limited purpose of establishing Rogers' state of mind at that point in the investigation " to give the jury an understanding of what he did and why he did it during that particular interview, and for no other purpose." The court did not err here as it correctly limited the purpose for which the jury could consider the testimony and provided a clear instruction to the jury.

         ¶ 52 Later, during cross-examination, Rogers referred to " the night that [Santoso] was murdered" and opined that Marina Madrid did not witness the " actual murder." Defense counsel objected to both statements on the ground that they stated conclusions about an ultimate issue of fact, but the trial court overruled the objections without comment. As stated above, a witness may opine about issues of fact ultimately reserved for the jury as long as the testimony is helpful and based on inferences from the evidence. But unlike with Dr. Harruff's testimony, the State never demonstrated on what evidence Rogers relied when forming his opinion that a murder had taken place, nor did Rogers testify that it was only his opinion, rather than a fact. And, unlike it did with Dr. Harruff's testimony, the trial court never reminded the jury that Rogers' reference to murder was only his opinion and that it was ultimately for the jury to decide whether Santoso was murdered.

         ¶ 53 But the court's error in admitting Rogers' statements is harmless if the remaining, untainted evidence is so overwhelming that it leads to a finding of guilt beyond a reasonable doubt.⁵⁵ Here, Rogers' two questionable statements were insignificant in the context of a 10-week trial involving approximately 60 witnesses and over 300 exhibits. His two references to murder could not have been the defining evidence considered by the jury when it found Mason guilty, and a vast amount of untainted evidence supports its guilty verdict. The error was harmless.

55 Improper opinion testimony must be harmless beyond a reasonable doubt. State v. Barr, 123 Wash.App. 373, 383-84, 98 P.3d 518 (2004) (citing Guloy, 104 Wash.2d at 426, 705 P.2d 1182; Carlin, 40 Wash.App. at 703, 700 P.2d 323). See also Dolan, 118 Wash.App. at 330, 73 P.3d 1011 (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Guloy, 104 Wash.2d at 425, 705 P.2d 1182).

         IV. Prior Misconduct Evidence

         ¶ 54 Mason next argues that the trial court erred by admitting evidence of prior bad acts. We review rulings admitting evidence of prior misconduct for an abuse of discretion.⁵⁶ Under ER 404(b), " [e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." But a trial court may admit this evidence for other purposes, including " proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." ⁵⁷ If a trial court does admit bad acts evidence, it must identify the purpose for which it is admitted and determine whether the evidence is relevant and necessary to prove an essential element of the charged crime.⁵⁸ Evidence is relevant and necessary if its purpose is of consequence to the action and makes an identified fact's existence more probable.⁵⁹ The court must also balance on the record whether the evidence's probative value outweighs its prejudicial effect.⁶⁰ It is a reviewing court's role to determine whether the trial court had a proper basis on which to admit the prior bad acts evidence. " In so doing[,] we consider bases mentioned by the trial court as well as other proper bases on which the trial court's admission of evidence may be sustained." ⁶¹

56 . State v. Powell, 126 Wash.2d 244, 258, 893 P.2d 615 (1995) (citing Washburn v. Beatt Equip. Co., 120 Wash.2d 246, 286, 840 P.2d 860 (1992); State v. Dennison, 115 Wash.2d 609, 628, 801 P.2d 193 (1990); Fenimore v. Donald M. Drake Constr. Co., 87 Wash.2d 85, 91-92, 549 P.2d 483 (1976)).

57 ER 404(b).

58 Powell, 126 Wash.2d at 258-59, 893 P.2d 615 (citing Dennison, 115 Wash.2d at 628, 801 P.2d 193; State v. Saltarelli, 98 Wash.2d 358, 362, 655 P.2d 697 (1982); State v. Robtoy, 98 Wash.2d 30, 42, 653 P.2d 284 (1982); State v. Tharp, 96 Wash.2d 591, 596, 637 P.2d 961 (1981); State v. Dinges, 48 Wash.2d 152, 154, 292 P.2d 361 (1956); State v. Goebel, 40 Wash.2d 18, 21, 240 P.2d 251 (1952), overruled on other grounds by 125 Wash.2d 847, 889 P.2d 487 (1995); Robert H. Aronson, Evidence in Washington 4014-10 (2d. ed.1994)).

59 Id. at 259, 893 P.2d 615 (citing Dennison, 115 Wash.2d at 628, 801 P.2d 193; Saltarelli, 98 Wash.2d at 362-63, 655 P.2d 697).

60 ER 403.

61 Powell, 126 Wash.2d at 259, 893 P.2d 615 (citing State v. Markle, 118 Wash.2d 424, 438, 823 P.2d 1101 (1992); Pannell v. Thompson, 91 Wash.2d 591, 603, 589 P.2d 1235 (1979)).

         A. Weapons Possession

         ¶ 55 Mason challenges evidence that he possessed a firearm and knives, arguing that these weapons were unrelated to the charged crime. Evidence of weapons possession is highly prejudicial, and courts should not admit evidence that the defendant possessed weapons if those weapons had nothing to do with the crime. ⁶² " The question is whether ‘ the matter shown has such a connection with the crime for which the accused is being tried as to tend to show that the accused committed that crime.’ " ⁶³

62 State v. Freeburg, 105 Wash.App. 492, 501, 20 P.3d 984 (2001) (citing United States v. Warledo, 557 F.2d 721, 725 (10th Cir.1977); United States v. Peltier, 585 F.2d 314, 327 (8th Cir.1978), cert. denied, 440 U.S. 945, 99 S.Ct. 1422, 59 L.Ed.2d 634 (1979); State v. Oughton, 26 Wash.App. 74, 83-84, 612 P.2d 812, review denied, 94 Wash.2d 1005 (1980); Moody v. United States, 376 F.2d 525, 532 (9th Cir.1967); State v. Rupe, 101 Wash.2d 664, 705, 683 P.2d 571 (1984)).

63 Oughton, 26 Wash.App. at 83-84, 612 P.2d 812 (quoting State v. Spadoni, 137 Wash. 684, 695, 243 P. 854 (1926)).

         ¶ 56 Marina Madrid identified a knife during trial. She testified that it was found in her home and it belonged to Mason. She also testified that she had no reason to believe the knife was in any way involved in the events of February 19. Defense counsel objected to the photograph of the knife, arguing that it was irrelevant because it was not the murder weapon. But the trial court found it relevant in the context of Madrid's fear; that is, Madrid expressed her fear after February 19 when she saw the knife in her home.

         ¶ 57 Detective Gary Eggleston testified that he searched Madrid's apartment and found the knife. At trial, he identified a photograph of the knife, and defense counsel did not object. When Eggleston was asked to identify the actual knife, defense counsel objected on the basis of relevance, but the court admitted it without comment. On cross-examination, Eggleston testified that the knife found in Madrid's apartment was similar to the discarded knife found on the highway, but it was not the same knife. And Detective Randy Rogers testified that after arresting Mason, he searched Mason's luggage and found another knife. Defense counsel did not object.

         ¶ 58 Detective Kristy Roze seized a loaded handgun from underneath Mason's bed which she identified in court. Defense counsel never objected, and Mason does not challenge this testimony. Detective John Berberich read aloud Mason's statement in which he admitted displaying an unloaded gun in self-defense during the January incident. Again, defense counsel did not object, and Mason does not raise this in his brief. Mason does raise the State's numerous references during closing argument to Mason's use of a gun during the January incident and the fact that the police found a loaded gun under Mason's bed. But defense counsel did not object to these references during closing argument.

         ¶ 59 Defense counsel objected only twice to the weapons evidence, and those objections were based on relevance.⁶⁴ The record indicates that defense counsel never raised the issue in the context of ER 404(b), and thus the trial court was never called upon to decide it. Relevance objections are insufficient to preserve appellate review based on ER 404(b).⁶⁵ And failure to object at trial waives the issue on appeal.⁶⁶ We thus decline to reach this issue.

64 In his brief, Mason argues that he objected to the knife evidence on ER 404(b) grounds, but the record does not support this.

65 State v. Kendrick, 47 Wash.App. 620, 634, 736 P.2d 1079 (citing State v. Fredrick, 45 Wash.App. 916, 923, 729 P.2d 56 (1986); State v. Jordan, 39 Wash.App. 530, 539, 694 P.2d 47 (1985), review denied, 106 Wash.2d 1011 (1986), cert. denied, 479 U.S. 1039, 107 S.Ct. 895, 93 L.Ed.2d 847 (1987)), review denied, 108 Wash.2d 1024 (1987).

66 Guloy, 104 Wash.2d at 421, 705 P.2d 1182 (citing Bellevue Sch. Dist. No. 405 v. Lee, 70 Wash.2d 947, 950, 425 P.2d 902 (1967)).

         B. Sexual Practices

         ¶ 60 Mason next disputes the admission of evidence about his sexual practices. Kristine Riley testified that during a party in March 2001 Mason expressed his interest in having a sexual encounter with her and two other women. Defense counsel objected on relevance grounds. The court overruled the objection, relying on the State's argument that the testimony pertained to bias and prejudice because it explained why Riley became upset with Mason later that night. Riley then testified that she was upset with Mason for paying attention to the other women, and she was upset the next morning because Mason did not want to have sex with her. The trial court did not err by admitting this testimony because it was offered for a purpose other than to prove action in conformity with Mason's character. And even if this were not the case, defense counsel objected to the testimony only based on relevance, which is insufficient to preserve an ER 404(b) issue for appellate review.⁶⁷

67 See Kendrick, 47 Wash.App. at 634, 736 P.2d 1079 (citing Fredrick, 45 Wash.App. at 923, 729 P.2d 56; Jordan, 39 Wash.App. at 539, 694 P.2d 47).

         ¶ 61 Riley also testified that Mason told her that he had previous sexual encounters with a man. The defense objected to this testimony, arguing that it was prejudicial. Overruling the objection, the court stated that Riley could testify about statements Mason made to her. The court also stated that the prejudice did not substantially outweigh the probative value because the evidence was probative of the nature of Mason and Santoso's relationship— a highly disputed issue. Again, defense counsel did not object on the basis of ER 404(b).

         ¶ 62 Curtis Schuster, a kickboxing instructor and friend of Mason's, testified that Mason used to talk about " potty training" some of his girlfriends where he would watch the women go to the bathroom so that " they would be comfortable with just about anything else." Defense counsel did not object,⁶⁸ and Mason has waived this issue on appeal.⁶⁹

68 In his brief, Mason argues that his counsel objected to this testimony the next day. In fact, defense counsel objected to the admission of different information that Schuster privately told counsel the night before. Without discussing the nature of the testimony on the record, the court agreed that it was too prejudicial and excluded it. The parties never discussed the admissibility of the " potty training" testimony.

69 Guloy, 104 Wash.2d at 421, 705 P.2d 1182 (citing Bellevue Sch. Dist. No. 405, 70 Wash.2d at 950, 425 P.2d 902).

         C. " The Ancient Art of Strangulation" Book

         ¶ 63 Mason also challenges the admission of a book found among his possessions. The book was called " The Ancient Art of Strangulation," and Mason's fingerprints were found near several passages, including passages about the erotic nature of asphyxiation and death by strangulation. The State mentioned the book during closing argument, reminding the jury that the book discussed death by strangulation and by an " assassin's blade," and contained an appendix discussing body mutilation and disposal. Defense counsel did not object to admission of the book, but did object to the admission of the fingerprint evidence because the evidence indicated Mason had read specific pages. The court overruled the objection, ruling that defense counsel's concerns could be brought out on cross-examination. Mason never objected to the book or the fingerprints on the basis of ER 404(b), and thus he waived his right to do so now. But even if he had properly objected, the book would be admissible evidence of premeditation, preparation, and/or plan.

         D. Misstatements on Financial and Employment Forms

         ¶ 64 During trial, the court admitted testimony about various misstatements Mason made on financial and employment forms, and Mason argues that the State improperly used this testimony to portray him as a liar during closing arguments. The human resources manager at Northwest Protective Services, Mason's former employer, testified that Mason listed " Santos Lunning" as a reference on his job application, but provided Hartanto Santoso's phone number. And the finance director for an automobile dealership testified that, in order to finance his new car, Mason listed two non-existent people as references and misstated his income. He also falsely indicated that his trade-in car was lien-free.⁷⁰ At the close of the finance director's testimony, the court instructed the jury not to consider the testimony for the purpose of assessing Mason's credibility, but rather to consider it as it relates to Mason's listing of references and his financial situation.

70 Before trial, defense counsel objected to the admission of the employment and financing forms, arguing that they were improper character evidence. On appeal, Mason does not appear to contest the documents' admission, but rather objects to the State's use of those documents in closing argument.

         ¶ 65 Several times during closing arguments, the State accused Mason of being a liar. At one point, the prosecuting attorney referred to the automobile financing documents to support these accusations. Although he did not object at the time, Mason now argues that this violated the court's prohibition against using the automobile dealership testimony to relate to Mason's credibility. But considering the argument in its context, there was no error. The contested portion of the State's argument revolved around December 28, 2000, the day that Mason misstated his income and references on the financing documents. That same day, Mason asked Santoso for a loan, and Santoso gave him $400. Then, on January 23, 2001, Mason needed more money and confronted Santoso, presumably in the hopes of getting money. It is true that the State called Mason a liar in the context of the car financing documents, but that was a very small portion of the overall argument and, taken in context, the State was referring to the financing documents to demonstrate Mason's desperate financial situation.⁷¹ Mason's financial situation was relevant to demonstrate the nature of his relationship with Santoso, which in turn goes to Mason's motive. Evidence about motive is admissible.

71 . And while the State refers to Mason's lies at later times during closing arguments, it never again does so in the context of the employment or financing forms.

         E. Financial Mismanagement

         ¶ 66 Mason argues that evidence of his financial mismanagement was irrelevant to the charged crime and the court erred by admitting it. Specifically, Mason challenges evidence that he took out a loan and did not make car payments. He also challenges the admission of certain credit applications and payment accounts.

         ¶ 67 During trial, the manager of a consumer finance company testified that in November 2000, Mason took out a high interest loan for $6,000 and made only one payment. Defense counsel objected based on relevance, and the trial court overruled the objection. The finance director of an automobile dealership testified that to her knowledge Mason never made any car payments. Defense counsel objected that the testimony was beyond the scope, and the court overruled the objection. Finally, the court admitted records from a consumer finance company that reflected Mason's outstanding credit balances with two retailers. Again defense counsel objected that they were irrelevant, and again the court overruled the objection.

         ¶ 68 Before trial, defense counsel generally objected to evidence of Mason's financial situation, arguing that it was improper character evidence. But that objection challenged the admissibility of the employment and finance forms. We cannot find in the record defense counsel's objection to the evidence of Mason's financial problems based on ER 404(b). Thus the court was never called upon to evaluate it under that rule. Nevertheless, the evidence is admissible to show Mason's financial desperation during the period immediately before Santoso's assault and his later disappearance. And, as discussed above, Mason's financial situation was relevant to the nature of his relationship with Santoso and his attempts to get money from Santoso.

         F. Convenience Store Interaction

         ¶ 69 Next, Mason argues that evidence of an interaction he had with Santoso at a convenience store was impermissible character evidence. Diana Jones, a former convenience store employee, testified that sometime in November or December 2000, Mason entered the store, got a beverage, then went to the glass door and motioned for Santoso to come inside. Santoso entered, and Mason stared at Santoso until Santoso paid for the drink. While Santoso completed the transaction, Mason glared at him and left the store. According to Jones, Santoso had tears in his eyes when he left the counter, and she commented that he needed different friends. Santoso asked Jones what he should do, and she told him to call the police. According to Jones, Santoso shrugged and left the store. Santoso came into the store again in January 2001, specifically to talk with Jones. He told Jones that his friendship with Mason was going to end. Jones expressed her approval and support. Weeks later, when she saw photographs of Mason and Santoso in the newspaper, Jones contacted the prosecutor's office.

         ¶ 70 The court admitted Jones' testimony to show Mason's domineering and belittling behavior toward Santoso, as well as Santoso's reaction, as it related to the history and nature of their relationship. And during closing argument, the State referred to Jones' testimony when discussing how Mason exercised power and control over Santoso. The trial court did not abuse its discretion by admitting Jones' testimony. The testimony was one person's observation of an interaction between Mason and Santoso, and the nature of this relationship was relevant to establish motive.⁷²

72 See Powell, 126 Wash.2d at 259-61, 893 P.2d 615 (evidence of a hostile relationship is admissible to show motive).

         G. January 23rd Incident

         ¶ 71 Finally, Mason argues that evidence about the January 23rd incident presented throughout the trial was entirely inadmissible character evidence. At the end of trial, citing ER 404(b), defense counsel proposed a limiting instruction that would allow the jury to consider evidence of the January 23rd incident only to explain the nature of Mason and Santoso's relationship. The court declined, ruling that the evidence was admissible for a variety of purposes, including motive, res gestae, and " readiness to employ violence against Mr. Santoso." The court noted that the January 23rd incident was a physical attack that occurred within 30 days of the charged crime, and it was the last time the two men were seen together.

         ¶ 72 The trial court did not err by admitting this evidence. Evidence of previous fights, threats, or hostile relationships is admissible to show motive ⁷³ and intent.⁷⁴ And, under the res gestae exception, courts may admit evidence of other bad acts that happened near the same time and place as the crime in order to give the crime context and " ‘ complete the story of the crime.’ " ⁷⁵ Evidence of the January 23rd incident clearly helps to explain Mason and Santoso's relationship immediately before Santoso disappeared. It helps to explain Mason's motive for killing Santoso, and his intent to do so. It also helps to provide a " ‘ complete picture’ " of the crime to the jury.⁷⁶ Without the evidence, the jury would have been hard pressed to understand the context of the crime they were to judge. The evidence is relevant and necessary to the action because it is of consequence to the action and makes an identified fact more probable. ⁷⁷ And its highly probative value outweighs its prejudicial effect. ⁷⁸

73 Powell, 126 Wash.2d at 260, 893 P.2d 615 (citing State v. Hoyer, 105 Wash. 160, 163, 177 P. 683 (1919); State v. Gates, 28 Wash. 689, 697-98, 69 P. 385 (1902); State v. Americk, 42 Wash.2d 504, 256 P.2d 278 (1953); 1 Charles E. Torcia, Wharton's Criminal Evidence § 110, at 389-90 (14th ed.1985)). See also State v. Cummings, 44 Wash.App. 146, 152, 721 P.2d 545 (defendant's previous theft from the murder victim was relevant to defendant's motive), review denied, 106 Wash.2d 1017 (1986).

74 Powell, 126 Wash.2d at 261, 893 P.2d 615 (citing State v. Parr, 93 Wash.2d 95, 102, 606 P.2d 263 (1980)).

75 Id. at 263,893 P.2d 615 (quoting State v. Tharp, 27 Wash.App. 198, 204, 616 P.2d 693 (1980), aff'd, 96 Wash.2d 591, 637 P.2d 961 (1981); State v. Thompson, 47 Wash.App. 1, 11-12, 733 P.2d 584, review denied, 108 Wash.2d 1014 (1987)).

76 Id. (quoting Tharp, 96 Wash.2d at 594, 637 P.2d 961).

77 Id. at 259, 893 P.2d 615 (citing Dennison, 115 Wash.2d at 628, 801 P.2d 193; Saltarelli, 98 Wash.2d at 362-63, 655 P.2d 697).

78 The evidence of the January 23rd incident was admissible for another reason. One of the three aggravating factors the State charged was that Santoso was a potential witness in Mason's kidnapping and robbery prosecution. The State is required to prove an aggravating factor beyond a reasonable doubt. State v. Kincaid, 103 Wash.2d 304, 311-13, 692 P.2d 823 (1985). In this case, the evidence of the January incident was relevant to prove this aggravating factor. Mason agrees that the fact that he was charged is in itself relevant to prove the aggravating factor, but he argues that the State's " full-scale recreation" of the incident was too detailed and thus prejudicial. But the State was justified in its thorough presentation because it was permitted to prove the likelihood that Mason would be convicted of kidnapping/robbery, and his consequent desperation to exonerate himself.

         ¶ 73 It is true that the trial court should have told the jury the purposes for which it could consider the January 23rd evidence. But any error was harmless. Evidentiary errors under ER 404(b) are not of a constitutional dimension,⁷⁹ and thus the proper inquiry is whether, within reasonable probabilities, the trial's outcome would have been different if the error had not occurred.⁸⁰ In this case, we conclude that the outcome would not have been different if the court had specifically instructed the jury that the evidence could be considered only in the context of motive, intent, and res gestae. While the January 23rd incident is helpful in establishing Mason's connection to Santoso's disappearance, a great deal of other evidence sufficiently establishes Mason's guilt.

79 State v. Jackson, 102 Wash.2d 689, 695, 689 P.2d 76 (1984).

80 Id. (citing Robtoy, 98 Wash.2d 30, 653 P.2d 284).

         V. " To Convict" Jury Instructions and Aggravating Factors

         ¶ 74 Mason next challenges the " to convict" jury instruction. We review a challenged jury instruction de novo.⁸¹ It is well-established that the State must prove each essential element of a charged crime beyond a reasonable doubt,⁸² and the " to convict" jury instruction must contain all elements of the crime.⁸³ In this case, the trial court instructed the jury that to convict Mason, the jury must find that the State proved the various elements of first degree murder beyond a reasonable doubt. In a separate instruction, the court instructed the jury that if it found Mason guilty of first degree murder, it must further determine whether the State proved certain aggravating circumstances. Mason argues that aggravating factors are essential elements of the crime of aggravated first degree murder and should have been included in the " to convict" instruction. We disagree.

81 State v. Deryke, 110 Wash.App. 815, 819, 41 P.3d 1225 (2002) (citing State v. Pirtle, 127 Wash.2d 628, 656, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026, 116 S.Ct. 2568, 135 L.Ed.2d 1084 (1996)), aff'd, 149 Wash.2d 906, 73 P.3d 1000 (2003).

82 State v. Oster, 147 Wash.2d 141, 146, 52 P.3d 26 (2002) (citing In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)).

83 Id. at 143,52 P.3d 26 (citing State v. Smith, 131 Wash.2d 258, 930 P.2d 917 (1997); State v. Emmanuel, 42 Wash.2d 799, 259 P.2d 845 (1953)).

         ¶ 75 First, defense counsel proposed a " to convict" instruction that was almost identical to the one the trial court used. It did not mention the aggravating factors. This is invited error. Under the invited error doctrine, a defendant who proposed an erroneous instruction at trial " invited the error" and thus may not challenge the instruction on appeal.⁸⁴ This is so even when the " to convict" instruction allegedly omitted an essential element of the crime.⁸⁵

84 City of Seattle v. Patu, 147 Wash.2d 717, 720, 58 P.3d 273 (2002) (citing State v. Studd, 137 Wash.2d 533, 546-47, 973 P.2d 1049 (1999)).

85 Id. at 720-21,58 P.3d 273 (citing State v. Henderson, 114 Wash.2d 867, 869, 792 P.2d 514 (1990); State v. Summers, 107 Wash.App. 373, 380-82, 28 P.3d 780 (2001), modified on recons., 43 P.3d 526 (2002)).

         ¶ 76 But even if the invited error doctrine did not preclude Mason's challenge, Mason's argument nevertheless fails because aggravating factors are not " elements" of the crime. Citing Apprendi v. New Jersey ⁸⁶ and Ring v. Arizona, ⁸⁷ Mason asserts that because aggravating factors increase punishment, they are elements of the crime. But Apprendi and Ring require that any fact which increases a defendant's authorized punishment be found by a jury beyond a reasonable doubt.⁸⁸ They do not define essential elements of crimes, nor do they address jury instructions. And the Washington Supreme Court has clearly held that, for the purpose of jury instructions, aggravating factors for first degree murder are not elements of the crime but rather are sentence enhancements.⁸⁹ Therefore, as long as the jury decides whether the State proved the aggravating factors, as they did in Mason's case, these factors are properly included in an instruction other than the " to convict" instruction.⁹⁰

86 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

87 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

88 Ring, 536 U.S. at 602, 122 S.Ct. 2428 (citing Apprendi, 530 U.S. at 482-83, 120 S.Ct. 2348).

89 State v. Thomas, 150 Wash.2d 821, 848, 83 P.3d 970 (2004) (citing Kincaid, 103 Wash.2d at 312, 692 P.2d 823).

90 Mason argues that State v. Oster, 147 Wash.2d 141, 52 P.3d 26 (2002), and State v. Smith, 131 Wash.2d 258, 930 P.2d 917 (1997), require a trial court to include aggravating factors in a " to convict" instruction. But in Oster, the Supreme Court held that it was not error to instruct a jury separately on the issue of prior criminal history. 147 Wash.2d at 143, 52 P.3d 26. And while Smith states that jurors should not be forced to refer to separate jury instructions to ascertain all of the elements of a crime, 131 Wash.2d at 262-63, 930 P.2d 917, it never says that aggravating factors are elements of a crime.

         VI. Sufficient Evidence of Burglary

         ¶ 77 Mason argues that the State presented insufficient evidence of burglary as an aggravating factor. Specifically, he asserts there was insufficient evidence to prove beyond a reasonable doubt that he unlawfully entered or remained in Santoso's home. In reviewing a sufficiency challenge, this court must determine whether, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt.⁹¹ A reviewing court defers to the trier of fact on the persuasiveness of the evidence, witness credibility, and conflicting testimony.⁹² In this case, the evidence was sufficient to support the jury's burglary finding.

91 State v. Ainslie, 103 Wash.App. 1, 5-6, 11 P.3d 318 (2000) (citing State v. Bencivenga, 137 Wash.2d 703, 706, 974 P.2d 832 (1999)).

92 Id. at 6,11 P.3d 318 (citing State v. Walton, 64 Wash.App. 410, 415-16, 824 P.2d 533, review denied, 119 Wash.2d 1011, 833 P.2d 386 (1992)).

         ¶ 78 The evidence clearly indicates that someone threw a cinder block through Santoso's bedroom window. A police officer testified that there was a large hole in the bedroom window, broken glass along the windowsill, and a large concrete block on the floor. The block was in a puddle of blood. A forensic scientist described a large hole in the window and broken window blinds, and testified that the block was thrown through the window before the blood was deposited. And while the forensic scientist also said that no one entered through the broken window, Marina Madrid testified that Mason admitted to throwing a brick into Santoso's apartment and entering through the window. In fact, Mason told her that he might have cut his leg while entering the window.

         ¶ 79 One of Santoso's neighbors testified that at about 10:45 pm, she heard breaking glass and felt the building shake. She then heard moaning and " angry whispering." Another neighbor testified that he heard noises coming from Santoso's apartment: " [T]he front door had been opened really quickly, slamming into a wall right below kind of where we were sitting there. And then I heard some glass breaking and some muffled noises downstairs. It was pretty loud." He further described the muffled noises as " low-level thuds and bangs and crashes[.]" The forensic scientist testified that there was no indication that the front door was broken or that the locks were forcefully opened.

         ¶ 80 To be guilty of burglary, a defendant must have entered or remained in a building unlawfully.⁹³ " A person ‘ enters or remains unlawfully’ in or upon premises when he is not then licensed, invited, or otherwise privileged to so enter or remain." ⁹⁴ Unlawful entry and unlawful remaining may be construed as separate acts.⁹⁵ That is, in certain circumstances, a defendant could be guilty of burglary after lawfully entering but unlawfully remaining.⁹⁶ Unlawful entry " occurs when a person initially enters a building without invitation, license or privilege, and with intent to commit a crime therein." ⁹⁷ Unlawful remaining, however, " occurs when (1) a person has lawfully entered a building pursuant to invitation, license or privilege; (2) the invitation, license or privilege is expressly or impliedly limited; (3) the person's conduct violates such limits; and (4) the person's conduct is accompanied by intent to commit a crime in the building." ⁹⁸ A burglary conviction may also stand on unlawful remaining alone if the defendant lawfully enters but has previously been barred from returning to those premises.⁹⁹

93 RCW 9A.52.020(1); .025(1); .030(1) (that the person entered or remained unlawfully in a building is an element of first degree, second degree, and residential burglary).

94 RCW 9A.52.010(3).

95 State v. Klimes, 117 Wash.App. 758, 765, 73 P.3d 416 (2003).

96 Id. at 767, 73 P.3d 416 (citing State v. Collins, 110 Wash.2d 253, 751 P.2d 837 (1988); State v. Thomson, 71 Wash.App. 634, 861 P.2d 492 (1993)).

97 Thomson, 71 Wash.App. at 640, 861 P.2d 492 (citing RCW 9A.52.030(1); .020(1); .010(3)).

98 Id. at 640-41,861 P.2d 492 (citing RCW 9A.52.030(1); . 020(1); .010(3); Collins, 110 Wash.2d 253, 751 P.2d 837 (1988); State v. Rio, 38 Wash.2d 446, 230 P.2d 308, cert. denied, 342 U.S. 867, 72 S.Ct. 106, 96 L.Ed. 652 (1951)).

99 Klimes, 117 Wash.App. at 767-68, 73 P.3d 416 (citing State v. Kutch, 90 Wash.App. 244, 951 P.2d 1139 (1998)).

         ¶ 81 The evidence in this case could be interpreted in several different ways. But viewing the evidence in the light most favorable to the State, and deferring to the trier of fact on the persuasiveness of the evidence, witness credibility, and conflicting testimony, a rational trier of fact could have found beyond a reasonable doubt that Mason unlawfully entered Santoso's apartment through the broken window or through an unlocked front door. At the very least, a rational trier of fact could have found that even if Santoso permitted Mason to enter the apartment, Mason remained unlawfully because the no-contact order had previously barred him from entering those premises.¹⁰⁰

100 See id. (citing Kutch, 90 Wash.App. 244, 951 P.2d 1139).

         ¶ 82 But even if insufficient evidence supports the burglary finding, it is ultimately of no consequence because another aggravating factor supports the aggravated murder conviction. The State charged Mason with violating RCW 9A.32.030(1)(a), which states that a person is guilty of first degree murder if, with a premeditated intent to cause another's death, he or she causes that person's death. Mason was not charged with murdering another in the process of committing a burglary,¹⁰¹ and the burglary allegation is relevant only in the context of the aggravating factors. Mason was charged with three aggravating factors: (1) the victim was a potential witness in a proceeding against him; ¹⁰² (2) the murder was committed in the course of a burglary; ¹⁰³ and (3) at the time of the murder, a no-contact order existed prohibiting the defendant from contacting the victim.¹⁰⁴ Although three aggravating factors were charged, the jury needed to find only one in order for Mason to be convicted of aggravated first degree murder. ¹⁰⁵ The jury found the State had proven two aggravating circumstances: Mason committed first degree murder in the course of a burglary and in violation of a no-contact order. Mason only challenges the burglary aggravating factor and does not dispute the no-contact order aggravating factor. Therefore, even if there were insufficient evidence to prove burglary, the other aggravating factor remains to support Mason's conviction. We reject Mason's challenge to the sufficiency of the evidence in the burglary charge.

101 See RCW 9A.32.030(1)(c).

102 See RCW 10.95.020(8).

103 See RCW 10.95.020(11)(c).

104 See RCW 10.94.020(13).

105 RCW 10.95.020 (a person is guilty of aggravated first degree murder if he or she commits first degree murder and one or more of the enumerated aggravating circumstances existed).

         VII. Informing the Jury About the Death Penalty

         ¶ 83 During voir dire, the judge instructed the jury venire members about their obligation to apply the law as directed by the court. The court then asked whether any of the jurors would be unable to enforce or apply the law as instructed. One particular juror responded, " If it were the death penalty. I don't support the death penalty. I would have a hard time with that." The judge responded:

You should not concern yourselves with what penalty may be administered in the event the jury reaches a finding of guilty, except that the fact a penalty may follow conviction should make you careful.

In response to [the juror's] statement, I will respond by informing you that this is not a capital case. In other words, this case does not involve a request for the death penalty. The jury will not be involved in any way in determining any sentence which may be imposed, in the event that a jury reaches a verdict of guilty.

Aside from that consideration, would anybody find themselves in a position where they might not be able to apply the law as instructed, if you found yourself thinking that it might be changed somewhat?

[No response.] All right. Thank you....

         ¶ 84 Mason now argues that the court committed reversible error by informing the jurors that the State was not seeking the death penalty, in violation of State v. Townsend. ¹⁰⁶ In Townsend, the State mentioned the death penalty during voir dire, and the trial court responded by saying,

106 142 Wash.2d 838, 15 P.3d 145 (2001).

" Thank you ... I had intended to let the jury know that I'd forgotten to indicate because when you do hear the term first degree murder, a lot of people think automatically about a [127 Wn.App. 572] death penalty. This is not a case in which the death penalty is involved and will not be a consideration for the jury." ¹⁰⁷

107 Id. at 842, 15 P.3d 145.

         In response to this statement, the Supreme Court held that " it is error to inform the jury during voir dire in a noncapital case that the case is not a death penalty case." ¹⁰⁸ This rule ensures that juries remain impartial, and it prevents unfair influence on juries' deliberations. ¹⁰⁹ Instead of informing jurors about possible sentences, " voir dire should be used to screen out jurors who would allow punishment to influence their determination of guilt or innocence and then, through instructions, jurors should be advised that they are to disregard punishment." ¹¹⁰

108 Id. at 840, 15 P.3d 145.

109 Id. at 846, 15 P.3d 145.

110 Id. at 847, 15 P.3d 145.

         ¶ 85 Despite its clear holding, the Townsend court found that the trial court's error was harmless.¹¹¹ In other words, it is not per se reversible error to instruct a jury that the death penalty is not involved in a case. And Townsend is distinguishable from our case because that court sua sponte discussed the death penalty. In contrast, the trial judge in this case informed counsel ahead of time that he was concerned about a juror possibly inquiring about the death penalty during voir dire. The judge worried that a juror who opposed the death penalty might disqualify him or herself on those grounds, and that would disadvantage the defense. The judge acknowledged the Townsend ruling but nevertheless encouraged defense counsel to consider the issue because he thought " it could frankly have a significant effect on the composition of the jury. And I don't think it's an effect the defense would be enthusiastic about."

111 Id. at 840, 15 P.3d 145.

         ¶ 86 After research and discussion, the judge composed the answer he would use if a juror were to ask about the death penalty. Defense counsel objected to the language. In response, the judge asked defense counsel how his proposed answer would prejudice the defense, saying: " Anything you can help me with, I would certainly appreciate it. I have been thinking about this a lot, as I've told you, over the months as we have been leading up to this moment." Defense counsel responded that a jury may be more likely to convict a defendant if it knows that the defendant will not be put to death, but counsel admitted that he did not think that was a particularly compelling reason. The trial judge concluded that he would give his composed answer if asked by a juror, but he stated for the record that

this is not a seat-of-the-pants decision. We have had discussions about this issue going back four or five months.

It was my belief when we first started to have these discussions, and it's even more firmly my belief now, that to not inform the jury that this is not a death penalty case, in my view, would be prejudicial to the defense[.]

         The judge opined that people who would opt off a jury panel because they oppose the death penalty would be naturally pro-defense. Therefore, he concluded that failing to inform the jury, if someone inquired, about the death penalty would prejudice Mason.

          ¶ 87 The trial court did not err by responding to the potential juror's statement as it did. This case is distinguishable from Townsend because the judge in this case had no intention of discussing the death penalty with the jury unless a juror made it clear he needed to do so. The court's discussion of the death penalty was short and succinct, and did not emphasize sentencing considerations. The court instructed the jury, both during voir dire and at the close of the case, that the jury was not to consider sentencing in making its decision. The judge was extraordinarily thoughtful about the issue and specifically consulted with defense counsel about it ahead of time. And finally, after he informed the jury that the death penalty was not involved, the judge again asked the jurors if they could apply the law as instructed. When he received no response, he proceeded with the voir dire. The trial court did not violate the [127 Wn.App. 574] Townsend rule, and even if it did, the error was clearly harmless under these circumstances.

         ¶ 88 We affirm.

          KENNEDY and BAKER, JJ., concur.