PER CURIAM.
At his jury trial on a charge of first degree robbery, Michael Hammond was questioned by the prosecutor about the timing of his release from custody on a prior and unrelated felony conviction. Hammond later unsuccessfully moved for a mistrial, arguing that the inquiry amounted to prejudicial misconduct. Hammond has now filed this appeal, contending that the trial court erred in denying the mistrial based on prosecutorial misconduct. But because Hammond has not shown that he was unfairly or unduly prejudiced by the prosecutor's challenged remarks, we find no abuse of discretion. Having rejected Hammond's remaining claims of sentencing error and ineffective assistance of counsel, we affirm.
FACTS
Hammond and his girlfriend, D.Y., were placed under surveillance after they were observed acting suspiciously inside a Bon Marche store. Believing that certain items of clothing may have been stolen by them, store security attempted to contact D.Y. as she was leaving the store. Hammond then came to her aid and fought with security. During the ensuing melee, D.Y. was able to get to her car, which was parked nearby, and attempted to drive away. Police arrived almost immediately and stopped the vehicle. A search of D.Y. revealed that she was wearing a white shirt stolen from the Bon Marche store. Another stolen item of clothing, a blue vest, was found on the front passenger seat of D.Y.'s car. Hammond was eventually charged with first degree robbery.
At trial, Hammond was positively identified as the person who accompanied D.Y. into a Bon Marche fitting room. There was testimony that Hammond then left the store and walked to a car where he sat in the front passenger seat for a few minutes. Witnesses also testified that Hammond reentered Bon Marche, that he spoke briefly with D.Y., and that Hammond and D.Y. then both left the store. An assistant security manager for Bon Marche testified that, after she identified herself as security to both Hammond and D.Y., Hammond hit her with a closed fist. D.Y. testified that she was solely responsible for stealing the white shirt and blue vest, and that Hammond knew nothing about her plans to shoplift the articles of clothing. According to D.Y., she wore both items when she left the store and was able to take off and discard the stolen vest before being stopped by the police. Hammond took the stand in his own defense. Hammond denied knowing that his girlfriend was planning to shoplift anything from the Bon Marche store. Hammond stated that he came to D.Y.'s assistance only after she cried out for help. He admitted having a prior conviction for taking a motor vehicle without permission (TMVWP). He nevertheless moved for a mistrial after the prosecutor questioned him about other details of that conviction. The trial court denied the motion. The jury found Hammond guilty as charged.
At sentencing, the trial court calculated Hammond's offender score as six. Using that offender score, the court imposed a sentence at the low end of the standard range. This appeal followed.
DECISION
We are first asked to determine whether Hammond was deprived of his right to a fair trial based on prosecutorial misconduct. To establish prosecutorial misconduct, the defendant bears the burden of showing the impropriety as well as its prejudicial effect.
State v. Gentry, 125 Wn.2d 570, 640, 888 P.2d 1105 (1995).
Hammond contends that he was denied a fair trial by improper and prejudicial remarks the prosecutor made during his cross-examination:
Question: Is that a copy of the Judgment Sentence for your conviction for Taking a Motor Vehicle?
Answer: Yes.
Question: And does it say what date it was entered on? Referring you to the third page.
Answer: It's says February 14th right here.
Question: I'm asking about the day that it was signed.
Answer: Yes, 2/11.
Question: So it's February 11th of last year?
Answer: Yes, it is. Question: And you had only been out of custody for a couple months when this event occurred; is that right? Ms. Reeves: Objection.
The Court: Sustained. Ms. Reeves: Move to strike.
The Court: The jury will disregard the reference to any punishment that may have followed the earlier conviction.
Hammond contends that the prosecutor's questions about the details of the TMVWP conviction were inflammatory and improper. Thus, Hammond argues that his robbery conviction should be reversed. We disagree.
The court below denied Hammond's motion for a mistrial based on prosecutorial misconduct. We review that determination for abuse of discretion. `The trial court is in the best position to most effectively determine if prosecutorial misconduct prejudiced a defendant's right to a fair trial.' Hammond does not dispute that the State had a per se right to impeach him with his prior TMVWP conviction under ER 609(a)(2). Assuming the prosecutor's challenged remarks here can be viewed as delving into irrelevant and objectionable matters under ER 609, any prejudice engendered by the single question was not so flagrant and ill-intentioned that it could not be cured. When Hammond objected to the inquiry, the trial court both sustained the objection and instructed the jury to disregard it. Jurors are presumed to follow instructions to disregard improper evidence. Because the trial court also specifically instructed the jury that evidence of prior convictions was not evidence of Hammond's guilt and could be considered only in deciding what weight or credibility should be given to his testimony, it is highly unlikely that Hammond was denied a fair trial because the jury used the details of the prior TMVWP conviction for an impermissible purpose. Nor is there anything in the record to indicate that Hammond was unfairly prejudiced by the prosecutor's isolated question.
State v. Escalona, 49 Wn. App. 251, 254-55, 742 P.2d 190 (1987).
State v. Lord, 117 Wn.2d 829, 887, 822 P.2d 177 (1991).
See State v. Trepanier, 71 Wn. App. 372, 381, 858 P.2d 511 (1993).
State v. Roberts, 142 Wn.2d 471, 533, 14 P.3d 717 (2000).
See State v. Brown, 113 Wn.2d 520, 529, 782 P.2d 1013, 787 P.2d 906 (1989) (explaining significance of limiting instruction where prior conviction is admitted under ER 609(a)(2) to impeach the testifying defendant's credibility).
The evidence against Hammond was strong, if not overwhelming. As the State pointed out during closing argument below, it is difficult to conceive how the stolen vest ended up in D.Y.'s vehicle without Hammond's direct involvement in the theft. Thus, the trial court properly denied Hammond's motion for a mistrial. State v. Powell, a case cited by Hammond, is clearly distinguishable.
See State v. Harris, 48 Wn. App. 279, 285, 738 P.2d 1059 (1987) (mistrial is proper only when defendant has been so prejudiced that nothing short of a new trial can ensure that he or she will be tried fairly).
62 Wn. App. 914, 816 P.2d 86 (1991).
There, the appellate court determined that the prosecutor's improper comments at the end of her final closing argument denied the defendant a fair trial even though the trial court had previously sustained a defense objection to the remarks. Unlike here, however, the prosecutor's remarks in Powell were both flagrant and made immediately prior to the jury beginning its deliberations. More importantly, the trial court was not asked to give a curative instruction or decide whether a mistrial was warranted. Given these significant differences, this is not a case like Powell where '[t]he bell once rung cannot be unrung.'.
62 Wn. App. at 919, quoting State v. Trickel, 16 Wn. App. 18, 30, 553 P.2d 139 (1976).
We also reject Hammond's remaining claims of offender score miscalculation and ineffective assistance of counsel. Both claims are based on Hammond's belief that his prior juvenile adjudications in May 1997 for second degree arson and second degree burglary were incorrectly treated as separate offenses for offender score calculation purposes. According to Hammond, the juvenile court ran the disposition on those two offenses concurrently. He moves to have this court take judicial notice of the information and order of disposition in the juvenile proceeding used to calculate his offender score in this proceeding. We deny the motion and hold there is no valid claim of ineffective assistance of counsel or sentencing error.
`In general, an appellate court is confined to evidence presented to the trial court.' Even if we were inclined to grant the motion under ER 201, neither document supports Hammond's position. As the State points out, it appears that the two counts were ordered to run consecutively, not concurrently. More importantly, as the State points out in its brief, even if the two juvenile adjudications were scored as one, the points allocated would have been two. That would have had no bearing on the ultimate standard range sentence. Thus, there was no prejudice to Hammond, as required for a claim of ineffective assistance of counsel. There was no sentencing error.
State v. Elmore, 139 Wn.2d 250, 302, 985 P.2d 289 (1999).
While judical notice may be used on appeal, RAP 9.11 severely restricts its use `when the facts are not already in the trial court record.' 5 Karl Tegland, Washington Practice: Evidence sec. 201.17 at 150-51 (4th ed. 1999). The appellate court will accept new evidence only if all six criteria of RAP 9.11(a) are met. State v. Ziegler, 114 Wn.2d 533, 541, 789 P.2d 79 (1990). Hammond has not alleged, much less established, that the requirements of that rule are satisfied here.
Affirmed.