PACKER v. STATE, 25342-9-II (Wash.App. 6-22-2001)

No. 25342-9-II.The Court of Appeals of Washington, Division Two.
Filed: June 22, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Clark County, No. 97-1-01608-8, Hon. Edwin L. Poyfair, November 23, 1999, Judgment or order under review.

Counsel for Appellant(s), Suzan L. Clark, Attorney At Law, 1014 Franklin St Ste 214, Vancouver, WA 98660.

Counsel for Respondent(s), Michael C. Kinnie, Clark Co Deputy Pros Atty, 1200 Franklin, P.O. Box 5000, Vancouver, WA 98668.

SEINFELD, J.

Gary Brian Packer appeals his first degree murder conviction. He challenges the denial of his motions for a substitute DNA expert and for the appointment of a second psychological expert. He also claims instructional and evidentiary error, insufficiency of the evidence, and cumulative error. Finally, he asserts that the trial court committed reversible error when it advised the jury venire that the case did not involve the death penalty. Finding no prejudicial error, we affirm.

FACTS
Packer and Thod Madsen, the murder victim, met at a restaurant and bar. Madsen was a widower who lived alone while his daughter was attending school out of state. Madsen’s house contained numerous items from his travels and gifts he had received, some of which were very valuable. Madsen drove a Jaguar and he often carried a money clip containing large bills.

On October 4, 1997, Madsen invited Packer to his home for drinks. During the evening, they drank heavily and looked at investment information on the Internet. Finally, Packer passed out and he spent the night at Madsen’s home.

The following day, the two men had several more drinks and lunch at a restaurant. They then returned to Madsen’s home where they continued drinking.

According to Packer, after dinner they viewed pornography on the Internet and Packer then went to the master bedroom where he masturbated into a towel. Packer testified that when he returned downstairs, Madsen asked him if he had ever been with a man and, when Packer said that he was going to leave, Madsen held a knife to his neck, exposed his erect penis, and demanded oral sex. Packer testified about the ensuing struggle as follows: He said that he knocked the knife out of Madsen’s hand; Madsen hit him in the back of the head with a stick; and he threw a large ceramic vase at Madsen, which struck Madsen in the back of the head and caused bleeding. As the struggle continued, the two fell into the recliner with Madsen’s back to the recliner and Packer on top of him; they then landed on the floor by the fireplace and continued to move from one side of the room to the other.

Packer asserted that he was acting in self-defense. He recalled that, at some point, he was sitting on the sofa with a cut foot and injured hand and Madsen was lying on the floor by the recliner coughing. He said that he then turned off the stereo; bandaged his cut foot; changed his bloody clothes; took some of Madsen’s credit cards, cash, and traveler’s checks; and fled the house. Packer claimed that he believed Madsen was alive at that time.

At about 6 a.m., Packer arrived at a friend’s house, appearing normal and not intoxicated. The friend took him to an urgent care clinic where a doctor sutured Packer’s foot wound. Packer told his friend and the doctor that he had been hit by an axe during a bar fight.

After purchasing clothing, supplies, and an airline ticket with Madsen’s credit cards, Packer flew to Alaska on October 7. While in Alaska, Packer started a `journal,’ in which he apologized to his family and said that he felt `like {he had} a split personality and manic depression.’ VIII-B Report of Proceedings (RP) at 223. The State read parts of the journal into the record at trial.

Meanwhile, on the evening of October 6, Madsen’s neighbors discovered his body and called the police. When the police found Madsen, he was lying on his stomach on the family room floor near the fireplace and a recliner; his pants were `zipped, fastened, and secured with a belt,’ and he had an empty money clip in his pocket. V-B RP at 123. There were bloodstains on his lower front shirttail, underwear, and inside of his pants. Madsen’s head was covered with a pillow and there was a broken and bloodstained lamp stand, several bloodstained pieces of broken porcelain, and bloodstained chunks of a broken cement statue on the floor next to him.

A bloodstained piece of wood was under the recliner and there were wood fragments and bark in the recliner and on the floor. A wheelbarrow near the garage contained similar pieces of wood.

There was blood throughout the family room and bloody foot, hand, and fingerprints, along with pools of blood throughout the house. Bloody footprints led through the family room, the entryway, the hallway, the kitchen, a small bathroom near the kitchen, the living room, and up the stairs. The kitchen sink was spattered with blood; there was blood on the recliner headrest; and Madsen’s blood and hair were on the front of the brick fireplace hearth. A butcher knife on the living room floor contained Packer’s palm print and a drop of Madsen’s blood.

There was a coil of speaker wire on the floor in the middle of the family room and the telephone was under a pillow on the couch. There were bloody fingerprints on the stereo play and power buttons and on the volume dial.

The police found some of Madsen’s credit cards, photographs, and a check, along with Packer’s latent fingerprints, scattered on the downstairs bathroom counter.

On the home’s second floor, the bloody footprints led into the computer room where there was a locked metal cabinet showing evidence of an attempt to pry it open. But there was no blood or fingerprints on the cabinet and no blood immediately around it. Nor were there pry tools in the room. More of Madsen’s credit cards were laid out in the computer room and two bloodstained file folders containing paperwork were on the floor under the chair.

Packer’s bloodstained clothing was in the master bedroom and more of Madsen’s credit cards were laid out on the dresser. Madsen’s housekeepers testified at trial that it would be unusual for Madsen to leave credit cards throughout the house. In all, the police collected almost 400 pieces of evidence from 2,300 square feet of the 2,400 square foot home.

The Anchorage Police arrested Packer on October 12 and, in an amended information, the State charged him with first degree premeditated murder or aggravated premeditated first degree murder with robbery as the aggravating factor.

Packer received a psychological exam but, in April 1999, his attorney asked the trial court to appoint a second psychological expert to reexamine Packer for evidence of mental disorders. The attorney was seeking support for a diminished capacity defense. The trial court denied the motion.

On October 14, 1999, Packer’s attorney moved to substitute DNA testing experts and to continue the trial date because the defense DNA expert, Genelex Corporation, said that it could not complete its tests in time for trial. The trial court denied the motion but ruled that it would consider any testing results Genelex could complete before the close of the State’s case. During trial, Genelex submitted a report of partial test results, which the trial court admitted into evidence.

Packer also moved to exclude any conclusions drawn by the State’s forensic expert that were not based on blood that had been tested to determine its origin. The trial court denied the motion. Before jury selection, the court, acting on the State’s request, advised the jury venire that the case did not involve the death penalty. Packer’s attorney objected, asserting that the jury could not consider the potential penalty.[1]

At trial, the State’s pathologist testified that Madsen had died from multiple blunt force trauma to his head. There were nine overlapping injuries on the right scalp area, skull fractures, injuries to the brain, and the back of his head was `decimated’ with so many blunt force injuries that the pathologist `couldn’t even begin to count them.’ V-A RP at 89. Madsen also had sustained about 18 different types of injures to the left front of his head. These injuries consisted of both sharp injuries, apparently from a porcelain statue or vase, and blunt trauma injuries. None of the head injuries contained any wood fragments.

In addition, Madsen’s body had multiple abrasions, contusions, lacerations, defensive wounds to his hands and forearms, some possible offensive wounds to his hands, bruising on his trunk, and four fractured and two displaced ribs. The pathologist concluded that the trunk injuries were either from being slammed against something or stomped.

A swab from the tip of Madsen’s penis contained semen. Based on the amount of semen present, the pathologist concluded that it either resulted from discharge, ejaculation, or leakage prior to death.

The State’s forensic expert testified about the blood found throughout the house. There was blood on the stick under the recliner, on the large broken black cement statue, on the pieces of a blue and white ceramic statue or vase, and on the front of the fireplace hearth. Based on his findings, the forensic expert concluded that Madsen had been struck with at least four weapons. Packer asserted that he had struck Madsen in self-defense and later in rage after Madsen had held a knife to his throat and demanded oral sex. Although Packer admitted to taking Madsen’s cash, traveler’s checks, and credit cards, he claimed that he had not intended to take these items before his fight with Madsen and did so only after the fight to facilitate his flight.

The jury found Packer guilty of first degree murder with an aggravating factor of first or second degree robbery, and the trial court sentenced him to life without possibility of parole.

DISCUSSION I. Motion for A Substitute DNA Expert
Packer asserts that the trial court erred when it denied his motions to substitute DNA testing labs[2] and to continue the trial date to allow Genelex to complete the DNA testing. He asserts that he moved for the substitution and continuance as soon as he was informed of the potential delay and that without these tests he was unable to present his defense because he could not challenge the opinion evidence from the State’s forensic expert.

In February 1999, the trial court appointed Cwiklik Associates to examine the forensic evidence. Cwiklik Associates selected certain evidence for testing for the presence of saliva and, in mid-July, the trial court appointed Emerald City Forensics, Inc., to do those tests. The trial court also appointed Genelex to perform DNA analysis on any items containing saliva and on other items. Emerald City Forensics did not find saliva on any of the items it tested.

On September 29, 1999, Cwiklik Associates informed Packer’s attorney that Genelex would not be able to complete the DNA testing before the trial date because of the unexpected resignation of one of its employees. On October 14, Packer’s attorney moved to substitute experts and for a continuance. The trial court denied the motions.

Trial commenced on October 26, 1999, and on October 28, Packer’s attorney received partial test results from Genelex. The trial court admitted the report just after the close of the State’s case.[3] The results indicated that (1) the blood drop on the knife was Madsen’s; (2) the blood on the victim’s underpants was Packer’s; and (3) the semen from the front pocket area of Packer’s jeans was Packer’s.

Genelex did not test (1) the semen stain on the back pocket of Packer’s jeans; (2) the blood from the recliner headrest; (3) the blood stain on the victim’s front shirttail; (4) the blood stain inside the victim’s pants; or (5) the blood from the living room window shade. But Chesterene Cwiklik, from Cwiklik Associates, later testified that the blood on the victim’s shirttail came from Packer and that Cwiklik Associates did not ask Genelex to test the semen stain on the back of Packer’s jeans.

A defendant seeking an additional expert must show that the expert is necessary to an adequate defense. CrR 3.1(f); State v. Barnes, 58 Wn. App. 465, 472, 794 P.2d 52 (1990), aff’d, 117 Wn.2d 701
(1991). And a trial court ruling on a motion for a continuance must consider the totality of the circumstances, including diligence, due process, the need for orderly procedure, and the possible impact on the trial. State v. Early, 70 Wn. App. 452, 458, 853 P.2d 964 (1993). See CrR 3.3(h)(2) (trial court may grant continuance `when required in the administration of justice and the defendant will not be substantially prejudiced in the presentation of the defense’).

We review the trial court’s denial of a continuance and of an additional expert for abuse of discretion. State v. Brett, 126 Wn.2d 136, 204, 892 P.2d 29 (1995); State v. Purdom, 106 Wn.2d 745, 748, 725 P.2d 622
(1986); State v. Eller, 84 Wn.2d 90, 95, 524 P.2d 242 (1974); Barnes, 58 Wn. App. at 472. The trial court abuses its discretion when it acts in a manifestly unreasonable way, on untenable grounds, or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775
(1971). To obtain relief, an appellant must also show prejudice. Purdom, 106 Wn.2d at 748-49; Eller, 84 Wn.2d at 95; Barnes, 58 Wn. App. at 472.

Packer fails to show prejudice. Genelex completed the critical portion of the testing in time for trial; the untested evidence was not particularly relevant or useful to the defense.

Genelex tested three of the seven items Cwiklik Associates asked it to test. Two of the untested items, the bloodstains on the victim’s front shirttail and the interior of his pants, appeared to be from the same source as the bloodstain on the victim’s underwear, a stain that Genelex tested successfully. Thus, the only remaining untested evidence was the blood spatter on the recliner headrest and on a living room window shade.

Considering the vast amount of blood present at the scene, the obvious evidence of some type of struggle, and the fact that both Packer and the victim were bleeding a great deal, we see little likelihood that the identity of the blood on the headrest and on the window shade would have influenced the jury’s view of the altercation. Further, although evidence establishing that some of the blood on the recliner came from Packer and the blood on the window shade came from Madsen might have supported Packer’s description of the altercation, it would not have shown whether Packer was acting in self-defense, whether he had intended to kill Madsen, whether he had the capacity to form intent at the time of the altercation, or whether he was in the process of committing robbery or attempting to commit robbery at the time of the altercation.

Because the evidence Packer sought would have had minimal value and because Packer fails to show that the denial of the continuance and of the motion to substitute caused him prejudice, the trial court did not abuse its discretion when it denied these requests.

II. Motion for Appointment of Second Psychological Expert
Packer next asserts that the trial court erred when it denied his CrR 3.1(f) request for appointment of a second psychological expert. Packer asserts that he needed a second expert to obtain an adequate mental evaluation.

In January 1998, at the request of Packer’s first attorney, the trial court appointed Dr. Jerry K. Larsen to examine Packer. Larsen evaluated Packer, conducted a mental status examination and psychological testing, and issued a report on January 20, 1998. In May 1998, Packer’s first attorney indicated that Packer intended to assert the defenses of self-defense, diminished capacity, and `lack of intent to kill based on voluntary intox., mental state.’ Clerk’s Papers (CP) at 386.

In November 1998, Packer’s first attorney withdrew and the trial court appointed a new attorney who, six months later, moved for the appointment of a second expert. The new attorney wanted Dr. Kevin McGovern to determine whether Packer suffered from any mental disorders that would support the defenses of diminished capacity and provocation or rage in response to sexual overture. He asserted that Larsen’s evaluation was inadequate because it focused primarily on Packer’s voluntary intoxication defense and did not address whether he suffered from any mental disorders that would support these defenses.

The trial court denied the motion, concluding that Packer had failed to show a basis for a diminished capacity defense. The court did, however, indicate that it would reconsider if Packer presented `something’ to show he could reasonably rely on this defense. The trial court encouraged Packer to use his court appointed investigator[4] to determine whether he had any history of mental disorders.

The next month, Packer moved for the appointment of a nurse psychiatrist to conduct an `initial evaluation of the defendant for the foundation evidence as to mental health problems{,}’ and he renewed his motion to appoint McGovern. CP at 101. Packer asserted that Larsen’s report provided a foundation for McGovern’s appointment because Larsen had found indications of mood swings, depression, a history of intoxication, and psychological problems. The trial court apparently denied this motion.

Larsen’s report described Packer’s self-reported history of heavy drinking that interfered with his employment and personal relationships and led to occasional blackouts. Packer also said that he suffered from mood swings, sleep disturbance, feelings of isolation, and depression. But Larsen found no indication that Packer suffered from hallucinations, delusions, or any underlying thought disorders. Based on Packer’s self-reported drinking on the night of the altercation, Larsen estimated that Packer’s blood alcohol level might have been .30 or more.

Larsen concluded that Packer’s psychological profile was relatively common for individuals with psychological problems and indicated feelings of resentment, isolation, and a probable cyclical pattern of acting out followed by guilt, regret, and remorse. Larsen concluded that such individuals at times are impulsive, and at other times display behavior described as overly controlled. They tend to be eccentric, non-conforming, and at times paranoid. They are notably dependent, relate poorly to others, have difficulty maintaining long-term relationships, and acting out may be a primary defense against intimacy. Projection can be expected, and the profile suggests possible character disorder, alcohol and/or substance abuse, with an underlying passive-dependent, antisocial personality type. CP at 298.

Larsen diagnosed Packer as suffering from major depression without psychosis and mixed personality disorder not otherwise specified,[5]
with antisocial and passive-aggressive traits. He also concluded that Packer had a Global Assessment of Functioning (GAF) score of 40 at the time of the assessment.[6]

Larson concluded that considering Packer’s blood alcohol level and his `personality style,’ he may have `acted in an uncharacteristic way’ if he felt he was under the threat of sexual abuse or that his life was in danger. CP at 299. Larsen further concluded that under these circumstances, diminished capacity might be an issue: `given the possible underlying mood swings, depression, and obviously intoxicated state, and the fact that patient was afraid for his very life, we are certainly dealing with the problem of diminished capacity resulting in this most bizarre and unfortunate event.’ CP at 299.

Diminished capacity is the inability to form the specific intent required to commit the crime charged, and a defendant may assert a defense of diminished capacity when his or her mental state is at issue. State v. Ferrick, 81 Wn.2d 942, 944, 506 P.2d 860 (1973); State v. Poulsen, 45 Wn. App. 706, 708-09, 726 P.2d 1036 (1986). It was at issue here.

To convict Packer of first degree murder, the State had to prove that he acted with premeditated intent to cause death.[7] RCW 9A.32.030. But to obtain a second expert, Packer had to show that such an expert was necessary to an adequate defense. CrR 3.1(f)(1), (2); State v. Kelly, 102 Wn.2d 188, 201, 685 P.2d 564 (1984); Poulsen, 45 Wn. App. at 709.

Packer does not assert that Larsen failed to examine whether he suffered from any psychological problems; he merely asserts that Larsen’s report was inadequate because it focused primarily on his intoxication defense, an approach his second attorney rejected. And apart from providing the court with Larsen’s report and moving for the appointment of a nurse psychiatrist to conduct an additional psychological exam, Packer presented no information showing that he suffered from any mental or physical problems beyond what Larsen had presented in his report.

Larsen’s report shows that he fully examined Packer for mental health problems. And it is clear from Larsen’s conclusions that he was looking for any psychological or mental problems that would support a defense of diminished capacity with or without the alcohol component. Because Packer failed to show that Larsen’s psychological tests were insufficient or his conclusions inadequate, the trial court did not err in denying the motion.[8]

III. Jury Instructions A. Initial Aggressor Instruction
Packer claims that the trial court erred in giving an initial aggressor instruction, arguing that the evidence did not support it.[9]

`Aggressor instructions in various forms have been permitted in cases where the defendant claims self-defense and there is evidence his wrongful or unlawful acts provoked the affray or deadly conflict.’ State v. Brower, 43 Wn. App. 893, 901, 721 P.2d 12 (1986). But there must be some indication of wrongful or unlawful conduct that might have precipitated the incident. State v. Hughes, 106 Wn.2d 176, 191-92, 721 P.2d 902 (1986); State v. Cyrus, 66 Wn. App. 502, 508-09, 832 P.2d 142 (1992); Brower, 43 Wn. App. at 902.

Here, the State’s version of the events supported a finding that Packer either robbed Madsen before the altercation or killed him to facilitate a robbery: Packer’s bloody footprints were present in all three rooms where Madsen’s credit cards were set out; someone had attempted to pry open a cabinet in the computer room; Packer was found with Madsen’s credit cards, cash, and traveler’s checks; there was a coil of speaker wire lying in the middle of the family room; and Madsen suffered major injuries, including defensive injuries, while Packer suffered relatively minor and few injures, none of which were defensive. Further, the only prints found on the knife that Madsen allegedly used to threaten Packer were Packer’s.

This evidence is sufficient to create an issue as to who initiated the fight and, consequently, to support the aggressor instruction. Thus, the trial court did not err in so instructing.

B. Lesser Included Offense of Manslaughter
Packer appeals the trial court’s failure to give his requested instructions on the lesser included offense of first degree manslaughter.

The State argues that we need not consider this assignment of error because Packer failed to object at trial as CrR 6.15(c) requires. We agree.

Packer’s attorney submitted the requested instructions but failed to make a timely objection when the court did not include the instructions in its packet. Thus, because Packer did not give the trial court the opportunity to correct any potential error, he cannot complain on appeal unless this was a manifest error of constitutional magnitude. RAP 2.5(a); CrR 6.15(c); State v. Scott, 110 Wn.2d 682, 685-87, 757 P.2d 492
(1988).

A court’s refusal to instruct the jury on a lesser included offense is not an error of constitutional magnitude. State v. Lord, 117 Wn.2d 829, 880, 822 P.2d 177 (1991). Thus, we will not address this claimed error further.

C. Provocation/Heat of Passion
In his pro se supplemental brief, Packer assigns error to the trial court’s refusal to give his proposed instructions on provocation[10]
and heat of passion.[11] He argues that these instructions would have clarified the concepts of premeditation and intent. The State responds that Packer was able to argue his theory of the case under the court’s second degree murder instruction and that the provocation and heat of passion instructions were unnecessary.

Packer’s attorney objected only to the trial court’s refusal to offer the provocation instruction. But because it is similar to the heat of passion instruction, we analyze them together.

Packer’s attorney apparently based the provocation instruction on State v. Van Zante, 26 Wn. App. 739, 614 P.2d 217 (1980) and State v. Frederick, 20 Wn. App. 175, 579 P.2d 390 (1978). But these cases do not support Packer’s argument.

Evidence of provocation or heat of passion may support a second degree murder instruction. See State v. Bolen, 142 Wn. 653, 667, 254 P. 445
(1927); Van Zante, 26 Wn. App. at 741; Frederick, 20 Wn. App. at 182. But the trial court need not provide either a provocation or heat of passion instruction when it gives a second degree murder instruction. As the Van Zante court explained, a provocation instruction is not `appropriate under Washington’s statutory definition of homicide’ because it is a comment on the evidence:

In Washington, by statutory definition, an intentional homicide is either first- or second-degree murder. As stated in Frederick . . ., `{i}t is clear that evidence of provocation will justify a second-degree murder instruction because it serves to negate premeditation.’ But we are satisfied that an instruction containing the `four requirements’ of the `rule of provocation,’ . . . would constitute a comment on the evidence.

26 Wn. App. at 741.

Jury instructions are adequate if they allow the defense to argue its theory of the case. Van Zante, 26 Wn. App. at 741. But the instructions “should do no more than provide `the basic and essential elements of the legal rules necessary for a jury to reach a verdict.'” Van Zante, 26 Wn. App. at 741-42 (quoting Laudermilk v. Carpenter, 78 Wn.2d 92, 100, 457 P.2d 1004, 469 P.2d 547 (1969)). And the trial court should guard against giving instructions that overemphasize certain aspects of the case. Laudermilk, 78 Wn.2d at 100. But counsel is still free to argue the `refinements of these rules within the factual framework of his case.’ Laudermilk, 78 Wn.2d at 100-01.

Here, the trial court instructed the jury on the lesser included offense of second degree murder and on self-defense, thereby allowing Packer’s attorney to argue in closing argument that the circumstances provoked Packer to act in an uncharacteristic manner without premeditation or intent.[12] Thus, the trial court did not err in refusing to give these instructions.

D. Other Instructional Error
Packer, pro se, also asserts that the trial court erred when it refused to give his proposed `no duty to retreat’ instruction and an instruction defining the term reckless. As Packer did not object to the trial court’s refusal to give these instructions, we need not consider these assignments of error unless Packer can show that they constitute manifest errors of constitutional magnitude. CrR 6.15(c); RAP 2.5(a); Scott, 110 Wn.2d at 685-89.

In Washington, persons lawfully present in a particular area have the right to stand their ground and defend themselves against unlawful force. State v. Allery, 101 Wn.2d 591, 598, 682 P.2d 312 (1984). Thus, if there was a reasonable inference that Packer could have avoided the use of force through a timely retreat, he may have been entitled to a `no duty to retreat’ instruction. But it was not error to refuse such an instruction where neither party suggested that Packer could have avoided killing Madsen if he had retreated. See State v. Frazier, 55 Wn. App. 204, 208-09, 777 P.2d 27 (1989); State v. Thompson, 47 Wn. App. 1, 5-6, 733 P.2d 584 (1987).

The absence of this instruction did not prevent Packer from arguing his theory of the case and the trial court did not err when it refused to give the no duty to retreat instruction.

Nor was it error to refuse to give the instruction defining `reckless.’ Packer apparently offered this instruction in conjunction with his lesser included offense of manslaughter instruction. Because the trial court did not instruct on manslaughter and, as we determined above, this was not error, it also was not error to decline to give the corresponding instruction defining the term reckless.

IV. Evidentiary Rulings A. Demeanor Evidence
Before trial, the State moved to exclude Packer’s statements to the police when they interviewed him in Alaska. The State argued that it did not intend to introduce any portion of these statements in its case in chief and, thus, the statements would be inadmissible as hearsay. The trial court ruled that Packer’s attorney would have to present an offer of proof before introducing any of this evidence.

The State objected when Packer’s attorney began to cross-examine former Clark County Detective Joel Lebow about Packer’s demeanor during his police interview in Alaska. Packer’s attorney then made an offer of proof during which Lebow testified that Packer had acted surprised when the police advised him that Madsen was dead. The trial court sustained the State’s objection to this testimony as irrelevant and as hearsay.

Packer now challenges this ruling but his sole argument is that under ER 401 and ER 402 the testimony was relevant to the intent element of the charged crime. He does not challenge the hearsay ruling or claim that the evidence fits within a hearsay exception.

We review the trial court’s evidentiary rulings for abuse of discretion. State v. Stubsjoen, 48 Wn. App. 139, 147, 738 P.2d 306
(1987). Abuse of discretion occurs when the ruling is manifestly unreasonable, or the court exercises discretion on untenable grounds, or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26 482 P.2d 775 (1971). But `{p}assing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration.’ Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998) (citing State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992)).

Because Packer does not address the trial court’s hearsay ruling, we will not consider this assignment of error.

B. Creditor Claim
Packer asserts that the trial court erred when it refused to admit Exhibit 152. Exhibit 152 is not in the appellate record but the trial court record indicates that this exhibit was the detail of Madsen’s Seafirst Bankcard debt showing several restaurant charges and an outstanding balance of $13,000 on a $15,000 limit. Packer argues that the bank statement was admissible under ER 406[13] as evidence of habit or routine practice to rebut testimony suggesting that Madsen often carried large amounts of cash.

Again, Packer fails to discuss why the trial court abused its discretion when it excluded the evidence. Nor does he cite to any authority to support his argument. Thus, we decline to address this issue. See Johnson, 119 Wn.2d at 171.

Further, Packer has not shown that the exclusion was harmful. State v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 270 (1993). The trial court admitted Exhibit 155, a copy of a `Notice of Allowance/Rejection of Claims’ from Madsen’s probate, containing evidence similar to that in Exhibit 152. Thus, as there was evidence to support Packer’s argument that Madsen often used a credit card, excluding of the bank statement did not prejudice Packer.

C. Expert Opinion Based on Untested Blood Evidence
Packer also moved pretrial to preclude the State’s forensic expert from testifying about any conclusions he reached based on blood evidence that had not been tested to determine its source. The trial court denied this motion, apparently relying on ER 702 and ER 703.[14] Packer challenges this ruling in his pro se brief.[15]

An expert may give opinion testimony if the opinion is based on evidence `of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject{.}’ ER 703. Packer’s attorney did not challenge the evidence on this basis but, rather, argued below that the purpose of his motion was to `avoid some sort of getting up on the stand and making some conclusionary {sic} statements about this being Mr. Madsen’s blood when in fact it is not.’ III RP at 45. On appeal, Packer argues that allowing the expert to offer opinions based on the untested evidence had the potential to confuse the jury and thus deny him a fair trial.

But the record does not indicate that the expert offered any conclusions about the source of blood that had not been tested. He testified primarily to known facts about the evidence such as its location and its type (e.g., spatter, spray, expirated, drop, etc.). While he made broad generalizations about the source of the blood, such as someone laying a bloody head against the recliner headrest or someone coughing up blood while on the floor next to the recliner, and made reasonable inferences based on the evidence, he did not testify that any specific evidence came from a named source unless that piece of evidence had been tested.[16]

Further, Packer revealed through cross-examination of the expert that much of the blood evidence gathered from the crime scene had not been tested to determine its source. And Packer’s experts, who had tested additional evidence, were available to rebut the State’s expert’s testimony. Thus, the trial court did not abuse its discretion when it allowed this testimony and its admission did not deny Packer a fair trial.

V. Sufficiency of the Evidence — Robbery Aggravator
Pro se, Packer also appears to argue insufficiency of the evidence of robbery. He complains that the jury disbelieved his testimony and made inferences based on the evidence to find that he had robbed Madsen.

Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). `A claim of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom.’ Salinas, 119 Wn.2d at 201.

Circumstantial and direct evidence are equally reliable, and the jury may infer specific criminal intent where a defendant’s conduct plainly indicates the requisite intent as a matter of logical probability. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980); State v. Bryant, 89 Wn. App. 857, 870-71, 950 P.2d 1004 (1998). Further, credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

Here, the trial court gave the following robbery instruction:

A person commits the crime of Robbery in the First Degree when in the commission of a Robbery or in immediate flight therefrom inflicts bodily injury. A person commits the crime of Robbery in the Second Degree when he commits Robbery.
A person commits the crime of Robbery when he unlawfully and with intent to commit theft thereof, takes personal property from the person or in the presence of another against that person’s will by the use or threatened use of immediate force, violence, or fear of injury to that person, or to that person’s property. The force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking in either of which cases the degree of force is immaterial. The taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom it was taken, such knowledge was prevented by the use of force or fear.

CP at 262.

The trial court also gave a definition of theft:

Theft means to wrongfully obtain or exert unauthorized control over the property or services of another, or the value thereof, with the intent to deprive that person of such property or service.
Wrongfully obtains means or {sic} take wrongfully the property or services of another.
Property means anything of value.

CP at 266.

Although Packer testified that he did not intend to deprive Madsen of his property when the fight occurred and that he only took the cash, traveler’s checks, and credit cards in a panic after the altercation, suggesting that he did not use force or threat of force to accomplish the taking, the jury was free to disbelieve Packer’s version of the events.

The jury could, instead, rely on the evidence that Packer took and subsequently used Madsen’s property to facilitate his escape to reasonably infer that Packer intended to commit theft. The jury also could reasonably infer from the evidence that Packer used force to facilitate the theft or to prevent Madsen from learning of the theft.

The evidence, taken in the light most favorable to the State, includes (1) the defensive wounds on Madsen’s arms and forearms; (2) the lack of significant defensive wounds on Packer; (3) the coil of speaker wire in middle of the family room floor suggesting that Packer may have intended to incapacitate Madsen; (4) Packer’s obvious presence in each of the rooms in which the police discovered Madsen’s credit cards; (5) Packer’s bloody footprints in almost every room of the house despite his claims that he only bandaged his foot, changed, grabbed the credit cards, money, and traveler’s checks at hand, and left the house after he discovered his foot wound; (6) blood on some of Madsen’s files in the computer room; (7) Packer’s blood on the play button of the C.D. player; (8) Packer’s palm print on the knife; (9) someone’s apparent attempt to pry open the computer room cabinet; and (10) someone’s apparent attempt to secret the piece of wood with Madsen’s blood on it under the recliner.

Additionally, Packer had observed Madsen’s significant assets, the home and car, and knew from their social interactions that he was a generous person. Packer had an opportunity to discover significant information about Madsen’s financial status when Madsen spent time with him on the Internet examining investment information. Further, one of Madsen’s housekeepers and his business partner indicated that Madsen often carried a significant amount of money in his money clip and he apparently was not reluctant to show it to others. Finally, the jury heard Packer testify and, thus, was able to make its own credibility determination about his version of the events.

This evidence, taken in the light most favorable to the State, was sufficient to support the jury’s verdict that Packer had robbed Madsen.

VI. Penalty Instructions
Packer argues that the trial court committed reversible error when it informed the venire that this was not a death penalty case. The State acknowledges the error, but argues it was harmless because overwhelming evidence supports the verdict and, thus, the error was not prejudicial.

The Supreme Court recently ruled that it is error to advise a jury that a case does not involve the death penalty. State v. Townsend, 142 Wn.2d 838, 15 P.3d 145 (2001). As the Townsend court pointed out, providing that information can be viewed as inconsistent with the trial court’s later instruction that the jury should not consider punishment. Thus, the trial court’s instruction had the potential to confuse or mislead the jury. As we do not have a record of the challenged instruction, and it is the appellant’s duty to ensure that we have an adequate record on review, we can only assume that it does not contain a misstatement of the law. See RAP 9.2(b); State v. Malone, 72 Wn. App. 429, 434, 864 P.2d 990 (1994). Nor does such instruction appear to be an error of constitutional magnitude. Thus, we do not presume prejudice. See State v. Wanrow, 88 Wn.2d 221, 237, 559 P.2d 548 (1977); State v. Golladay, 78 Wn.2d 121, 139, 470 P.2d 191 (1970). Rather, we must determine whether the net effect of the two instructions would mislead the jury as to its function and responsibilities under the law. Wanrow, 88 Wn.2d at 239. See also State v. Hayes, 73 Wn.2d 568, 572, 439 P.2d 978 (1968); State v. Redden, 71 Wn.2d 147, 152, 426 P.2d 854
(1967).

Assuming that the instruction contained only that language suggested by the State, we must determine whether the net effect of the two instructions would misled the jury as to its function and responsibilities under the law. Wanrow, 88 Wn.2d 221 at 239. See also Hayes, 73 Wn.2d at 572 (test for whether two instructions were confusing and misleading is whether they misled the jury as to its function and responsibilities under the law); Redden, 71 Wn.2d at 152. Given the facts of this case and the circumstances of the instruction and assuming that the instruction contained only that language suggested by the State, we conclude that there was no possibility of prejudice to Packer.

The court apparently gave this instruction only once, in a simple direct fashion to the entire venire before the selection of individual jury members. Following jury selection, there were four days of trial, after which the court gave the jury its written instructions. One of these instructions directed the jury not to consider punishment in its deliberations.We presume that a jury follows the court’s instructions. State v. Guizzotti, 60 Wn. App. 289, 297, 803 P.2d 808 (1991). Here, we find no likelihood that the instruction confused the jury as to its function or responsibilities under the law. Guizzotti, 60 Wn. App. at 296. Further, the voluminous forensic evidence and Packer’s admissions provide compelling evidence of Packer’s responsibility in brutally beating Madsen to death. Given this, we find no basis to assume that the court’s improper instruction led the jury to take its charge less seriously than it would have had it believed there was a potential for a death sentence. See Townsend, 142 Wn.2d at 852
(Ireland, J., concurring) (citing People v. Hyde, 166 Cal.App.3d 463, 451, 212 Cal.Rptr. 440 (1985)).

VII. Cumulative Error
Finally, Packer asserts that his claimed errors constituted reversible cumulative error. As the only error was the jury instruction on the death penalty and, as that error was not prejudicial, Packer is not entitled to relief under the cumulative error doctrine. See State v. Stevens, 58 Wn. App. 478, 498, 794 P.2d 38 (1990).

Finding no reversible error, we affirm.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

WE CONCUR: MORGAN, J., BRIDGEWATER, J.