STATE v. KUECK (2026)

OPINION PUBLISHED IN PART

¶1 T.K. and Shawn Kueck were married and lived on a rural farm in Rice, Washington. In September 2023, the parties separated after a fight and T.K. left the home with the children. Claiming he was “downsizing” the animals, Kueck shot and buried three of their horses. In October, Kueck was arrested and charged with several crimes, including first degree animal cruelty for killing a horse named Chabi.

¶2 In the published portion of this opinion, we address Kueck's argument that the evidence was insufficient to support his conviction for first degree animal cruelty under the alternative for intentionally killing an animal while manifesting an extreme indifference to the animal's life. We hold that, as used in RCW 16.52.205(1)(c), the phrase “manifesting an extreme indifference to life” identifies an aggravating level of culpability beyond the intent to kill and beyond the lack of legal justification. The circumstances developed at trial support Kueck's conviction under this alternative. The horse he killed was young and healthy, the jury could conclude Kueck's reasons for killing the horse were baseless, and the timing and circumstances support a conclusion that Kueck killed the horse because he was mad or wanted to hurt, manipulate, or control his estranged wife.

¶3 In the unpublished portion of this opinion, we reject Kueck's remaining arguments and affirm.

BACKGROUND

¶4 On September 4, 2023, an ongoing disagreement between T.K. and Kueck boiled over and T.K. claimed the arguments turned physical. At trial, she testified that during their argument, Kueck hit her, pushed her to the bed, put his hands on her throat and chest, blocked her from leaving, and grabbed two “phones” from her when she tried to call police. Rep. of Proc (RP) at 738-39. After leaving with the children, T.K. filed for a protection order.

¶5 The Kuecks owned several horses. On September 17, after T.K. left the home, Kueck texted T.K. that he was going to start downsizing the animals and that the animals would start leaving on Saturday. The two spoke over the phone about how they would rehome some of the animals or take them to a sale. T.K. later explained that when she mentioned finding homes for the horses, Kueck indicated that he wanted to keep them because he wanted to “keep our dream alive.” RP at 794.

¶6 On October 8, T.K. and Kueck exchanged a series of text messages (although the exact sequence is hard to determine). At some point T.K. texted Kueck that she could rehome all the horses. The following text message exchange occurred:

[Kueck] Honey, Subi, Chabi [redacted] are on the farm together. Not going anywhere[.]

Let's talk in the morning. And at night, if you want to be involved with how I live my life. If you don't want me to go somewhere you need to talk to me like my wife.

I'm here, I have healed, your prayers were answered, stop meeting my love with anger and grudges.

I'm going to eat and watch Masterchef but FaceTime me tonight and I'll say goodnight to the kids then talk to you[.]

Ex. 9, 11

¶7 At some point T.K. called Kueck and told her he had shot the horses. He then told her that if she wanted to have anything else to do with what happened on the farm, that she would have to come and sit with him without anyone else present and discuss it with him.

¶8 That same day T.K. texted Kueck:

[T.K.] Did you shoot the horses or not?

I'm done with your games.

[Kueck] Yes I'm done with yours as well.

Grow up and talk to me if you want to be my wife. Or leave.

[T.K.] Ok[.]

[Kueck] Divorce me[.]

Or come home[.]

But you will never be in charge [indiscernable] life without you. I will forget you, and one day I will move on.

Ex. 11, 18.

¶9 Finally, Kueck texted T.K. that “Chabi went to a new home today.” Ex. 18. T.K. responded, “Please don't shoot any other animals. I will find them homes if you want them gone[.]” Ex. 18

¶10 The horses were later found buried on the property. T.K. testified that when Chabi was exhumed, she had a visible bullet hole in her head. At trial, the State did not produce any evidence demonstrating how the horses died or whether they suffered before dying. T.K. testified that each of the horses looked very healthy at the end of September, and she claimed there were various ways to rehome a horse, one being through an auction. T.K. described the horse market for pleasure horses as “exceptionally good.” RP at 752.

¶11 At trial, Kueck admitted to killing the horses but claimed he euthanized them for legitimate reasons. He testified that the most humane way to put down a large animal is to use a firearm and that he used this method to put down farm animals on “a regular basis for a wide variety of reasons.” RP at 918. In downsizing the farm, Kueck testified the animals were either sold, given away, butchered, or euthanized.

¶12 Kueck admitted that he killed the first horse in early September. This horse was kicked out of its boarding facility due to its aggressive and dangerous nature, and the couple attempted to rehabilitate the horse to potentially sell it. Kueck said that these efforts failed, and because they were downsizing, Kueck decided to put the horse down rather than attempt to sell a dangerous horse.

¶13 The second horse that Kueck euthanized was born with a club foot, causing pain and an inability to keep up with the other horses. Kueck testified that the condition is painful and a horse with this condition is normally euthanized “within a couple of years.” RP at 938. Kueck admitted that he euthanized the second horse during the second week in September.

¶14 With respect to the third horse, Chabi, Kueck described her as a yearling who was not as lame as the other horse but in dire need of having her hooves trimmed. Kueck indicated that he tried to move the horse to a different pasture, but she was damaging fences and was uncatchable, so he euthanized her with a firearm. He testified that he spoke with T.K. about euthanizing Chabi in September. T.K., however, stated she believed Kueck intended to rehome the animals and she testified that all of the horses looked healthy when she saw them in September.

¶15 The State amended the information four times before trial. The fourth amended information included 10 counts. During trial, the State dismissed count 10, fourth degree assault. The jury acquitted Kueck of second degree assault, third degree assault, and two counts of first degree animal cruelty pertaining to the first and second horses that Kueck killed. The jury found Kueck guilty of two counts of unlawful imprisonment, two counts of interfering with the reporting of domestic violence, and one count of first degree animal cruelty pertaining to Chabi.

¶16 Before sentencing, Kueck moved for a mistrial and dismissal of the remaining charges. The trial court denied these motions and sentenced Kueck to nine months’ total confinement and 12 months’ community custody.

¶17 Kueck appeals his convictions.

ANALYSIS

Sufficiency of the Evidence for Animal Cruelty

¶18 Kueck argues the State presented insufficient evidence to support his conviction for first degree animal cruelty. While admitting that he euthanized the horse with a firearm, he contends he did so humanely and that there is no evidence that he did so while manifesting an extreme indifference to the animal's life. The State disagrees, arguing a rational trier of fact could conclude Kueck demonstrated an extreme indifference to the horse's life because he killed a healthy young animal for unjustifiable reasons and told his estranged wife that the horse “went to a new home today.” Ex. 18.

¶19 Evidence is sufficient to support a conviction if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt when viewing the evidence in a light most favorable to the State.” State v. Treat, 109 Wash. App. 419, 426, 35 P.3d 1192 (2001). The challenging party admits the truth of the State's evidence and all reasonable inferences. Id. Circumstantial evidence is no less reliable than direct evidence. State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980). We “defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.” State v. Thomas, 150 Wash.2d 821, 874-75, 83 P.3d 970 (2004).

¶20 The statute on animal cruelty in the first degree provides in relevant part: “(1) A person is guilty of animal cruelty in the first degree when, except as authorized in law, he or she intentionally ․ (c) kills an animal by a means causing undue suffering or while manifesting an extreme indifference to life, or forces a minor to inflict unnecessary pain, injury, or death on an animal.” RCW 16.52.205(1).

¶21 At trial, the State produced no evidence that Chabi suffered before dying and did not pursue the “undue suffering” alternative under the statute.¹ Instead, the State argued that Chabi's death was a clear display of Kueck's extreme indifference to the horse's life. In order to determine if the evidence is sufficient, we must first discern the meaning of the phrase “manifesting an extreme indifference to life” as used in the first degree animal cruelty statute.

¶22 We interpret statutes de novo. State v. Pratt, 196 Wash.2d 849, 852, 479 P.3d 680 (2021). Our primary objective is to ascertain and carry out legislative intent, beginning with the statute's plain language. Id. at 853, 479 P.3d 680. Plain meaning is discerned from the statutory text, the context of the chapter, and related statutes. Id. “Absent a statutory definition, this court should give terms their ordinary dictionary meaning and look to case law where Washington courts have attempted to define the term.” City of Spokane v. Ramos, 33 Wash. App. 2d 263, 272, 559 P.3d 1045 (2024).

¶23 The animal cruelty statute does not define the phrase “extreme indifference to life.” In other contexts, the phrase has been parsed using dictionary definitions. See State v. Madarash, 116 Wash. App. 500, 512, 66 P.3d 682 (2003) (defining “extreme” and “indifference”). These definitions, however, do not resolve the phrase's meaning in the specific context of the animal cruelty statute.

¶24 Washington courts have recognized that the same phrase may carry different meanings depending on the statute in which it appears. Id. at 511, 66 P.3d 682 (“[W]hen the same words or phrases are used in different statutes, their meaning depends on common usage and the context in which the words are used.”). For example, “extreme indifference to human life” in the homicide by abuse statute requires only that the defendant did not care whether the victim lived or died, while in the first degree murder statute it requires knowledge of a grave risk of death. Id. at 511-12, 66 P.3d 682.

¶25 Before considering what the phrase means within the animal cruelty statute, we consider what it does not mean. Within the murder and homicide statutes, extreme indifference is the required mental state and replaces the requirement to show intentional acts. See State v. Edwards, 92 Wash. App. 156, 163-64, 961 P.2d 969 (1998). In contrast, the animal cruelty statute already requires that the defendant “intentionally” killed the animal. RCW 16.52.205(1). Because the legislature used both phrases, “intentionally” and “while manifesting an extreme indifference to life,” we presume they carry different meanings. State v. Patel, 170 Wash.2d 476, 491 n.17, 242 P.3d 856 (2010), disapproved of on other grounds by State v. Johnson, 173 Wash.2d 895, 270 P.3d 591 (2012).

¶26 Nor can the phrase relate to the act of killing. The intentional killing of an animal is sometimes lawful. See RCW 16.52.205(7) (exempting accepted animal husbandry practices); RCW 16.52.011(1)(f) (defining “euthanasia” as “the humane destruction of an animal accomplished by a method that involves instantaneous unconsciousness and immediate death, or by a method that causes painless loss of consciousness, and death during the loss of consciousness”). Thus, “extreme indifference” must require something more than the fact that the defendant intentionally killed an animal.

¶27 Likewise, the phrase cannot merely mean an unjustified killing. The statute already limits liability to killings not authorized by law. RCW 16.52.205(1). Interpreting “extreme indifference” to mean only “not justified” would render the phrase superfluous. See Wash. State Ass'n of Counties v. State, 199 Wash.2d 1, 12-13, 502 P.3d 825 (2022) (Courts avoid interpretations that render statutory language meaningless or superfluous.).

¶28 Finally, the term “extreme indifference” must mean something other than killing an animal in a manner that causes undue suffering, which is already covered by the animal cruelty statute. See RCW 16.52.205(1)(c).

¶29 Turning to what the phrase does mean, we conclude that “extreme indifference” must be informed by the verb “manifest.” The statute requires that the defendant manifest extreme indifference. In this context, the word “manifest” is used as a verb to mean “make evident or certain by showing or displaying.” Webster’s Third New International Dictionary 1375 (1993). The statute does not say the killing occurred “because of” an extreme indifference, but that the circumstances of the killing reveal an extreme indifference.

¶30 In light of these considerations, we conclude that “manifesting an extreme indifference to life,” as used in the first degree animal cruelty statute, identifies an aggravating level of culpability beyond the intent to kill and beyond the lack of legal justification. The phrase narrows the class of intentional, nonsuffering killings to only those killings in which the surrounding circumstances demonstrate a complete disregard for the value of the animal's life. It requires proof of circumstances showing a degree of callousness substantially greater than that inherent in every unjustified intentional killing. This may include evidence on the manner in which the animal was killed, the reasons for killing the animal, and the circumstances surrounding the killing.

¶31 Here, the evidence, when viewed in a light most favorable to the State, supports Kueck's conviction for first degree animal cruelty. Kueck shot three horses over the span of several weeks after his wife left him. The jury acquitted him of animal cruelty related to two of the killings but convicted him on the third.

¶32 The evidence supports a finding that Kueck's explanations for killing a young, healthy horse were baseless and contradicted by other evidence. Although Kueck testified the horse needed foot care and was uncatchable, T.K. directly contradicted these statements when testifying the horse looked “very healthy” in early September. The circumstances of the killing, shortly after the couple separated and continued to fight, along with Kueck's cryptic statement, “Chabi went to a new home today,” are indicative of a cold, menacing affect and support an inference that he killed the horse because he was angry or because he wanted to hurt, control, or manipulate T.K. A rational jury could find that killing a perfectly healthy horse for this reason manifests extreme indifference to the animal's life.

¶33 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder, having no precedential value, shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

1. Spousal Privilege

¶34 Kueck argues the trial court abused its discretion in refusing to apply spousal privilege under RCW 5.60.060(1). He contends the statute does not afford the trial court discretion to apply the privilege. Instead, the trial court was required to obtain his consent before allowing T.K. to testify about their communications regarding Chabi. The State argues the trial court was authorized to exercise discretion to apply spousal privilege in order to effectuate that statute's purpose. It argues the trial court did not abuse its discretion in applying the statute because T.K.’s testimony was relevant to the animal cruelty charges, and the purpose of spousal privilege was not a factor in this matter as T.K. and Kueck were separated. We agree with the State.

¶35 We review issues of statutory interpretation de novo. Pratt, 196 Wash.2d at 852, 479 P.3d 680. Evidentiary rulings are reviewed for abuse of discretion. State v. Finch, 137 Wash.2d 792, 810, 975 P.2d 967 (1999). A court abuses its discretion when its decision is manifestly unreasonable or rests on untenable grounds or reasons. Id.

¶36 Under RCW 5.60.060(1), testimony by a spouse about communications made between the spouses during their marriage is inadmissible without consent of the other spouse, except in “a criminal action ․ for a crime committed by one [spouse] against the other.” Spousal privilege is a statutory evidentiary privilege, not a constitutional right. State v. Roach, 18 Wash. App. 2d 98, 110, 489 P.3d 283 (2021). Because privileges exclude relevant evidence, courts construe them narrowly. State v. Burden, 120 Wash.2d 371, 376, 841 P.2d 758 (1992). In exercising discretion, courts balance the privilege's purposes against the risk of trial gamesmanship, the exclusion of relevant evidence, and harm to the truth-seeking function. Roach, 18 Wash. App. 2d at 111, 489 P.3d 283.

¶37 The purpose of the spousal privilege is to foster harmony and prevent marital discord. Burden, 120 Wash.2d at 375, 841 P.2d 758. The statute recognizes the natural disdain for forcing one spouse to testify against the other and having to choose between jeopardizing the marriage and facing the consequences of refusing to testify. Id.

¶38 Here, defense counsel repeatedly invoked the privilege to block the admission of text messages and related testimony between the spouses. The State argued the privilege was inapplicable because the animal cruelty charge constituted a crime against a spouse. The court initially questioned that position, noting that T.K. was not the victim of the charged offense.² Ultimately, however, relying on Roach, the court concluded the privilege did not apply because the marriage was already in significant discord and excluding the communications would undermine the truth-seeking process.

¶39 We conclude the court acted within its discretion. The record shows T.K. and Kueck separated on September 4, and Kueck told T.K. he intended to leave the marriage on October 8. There is no claim that the couple was attempting reconciliation. The challenged communications were highly relevant to the animal cruelty charge. Given the state of the marriage and the nature of the evidence, the court reasonably declined to apply the privilege.

¶40 Kueck argues Roach is factually distinguishable, but we rely on Roach for its articulation of general principles governing spousal privilege, not its specific facts. Under those principles, he has not shown that the trial court abused its discretion.

2. Prosecutorial Misconduct

¶41 Kueck contends that pervasive prosecutorial misconduct created an unfair trial and warrants reversal. He contends the prosecutor improperly asked witnesses to comment on the credibility of other witnesses, violated the motions in limine, and argued facts not in evidence and misstated the law during closing argument. The State argues that no prosecutorial misconduct occurred and, alternatively, no prejudice is shown under the applicable standards. We agree that four instances of misconduct occurred, but upon consideration of the entire record we conclude that these instances did not have a substantial likelihood of affecting the verdict.

¶42 Prosecutorial misconduct is reviewed for abuse of discretion. State v. Lindsay, 180 Wash.2d 423, 430, 326 P.3d 125 (2014). “ ‘In order to establish prosecutorial misconduct, a defendant must show that the prosecutor's conduct was both improper and prejudicial in the context of the entire record and the circumstances at trial.’ ” State v. Slater, 197 Wash.2d 660, 681, 486 P.3d 873 (2021) (internal quotation marks omitted) (quoting State v. Magers, 164 Wash.2d 174, 191, 189 P.3d 126 (2008)).

¶43 That standard for prejudice depends on whether the improper remark was preserved by objection. See Kain v. Logan, 79 Wash.2d 524, 528, 487 P.2d 1292 (1971) (“Remarks of counsel ․ claimed to be so prejudicial as to warrant a reversal ․ must be brought to the trial court's attention.”). When the defendant objects at trial to an improper comment, “the defendant must show that the prosecutor's misconduct resulted in prejudice that had a substantial likelihood of affecting the jury's verdict.” State v. Emery, 174 Wash.2d 741, 760, 278 P.3d 653 (2012). A defendant who fails to object to misconduct at trial waives the issue unless the defendant can show that the “misconduct was so flagrant and ill intentioned that an instruction could not have cured the resulting prejudice.” Id. at 760-61, 278 P.3d 653.

A. Improper Questions on Witness Credibility

(i) Kueck

¶44 Kueck contends the State committed misconduct when it asked him whether T.K.’s testimony that Kueck threw a dog kennel at her was “pure fiction.” RP at 948. We agree that the question was improper. A prosecutor commits misconduct by asking a witness whether another witness is lying because such an opinion invades the province of the jury. State v. Cook, 17 Wash. App. 2d 96, 106, 484 P.3d 13 (2021).

¶45 Rather than defend the comment on appeal, the State responds that Kueck's attorney opened the door to this type of question by asking Kueck on direct whether he agreed with T.K.’s testimony. Not only was the question on direct different from the question asked by the prosecutor, but the State's argument on appeal misapplies the open door doctrine. See State v. Rushworth, 12 Wash. App. 2d 466, 475, 458 P.3d 1192 (2020).³

¶46 Nevertheless, we conclude that this error was not prejudicial. Defense counsel's appropriate objection was sustained, and the court instructed the jury to disregard the question. “[T]he jury is presumed to follow the [trial] court's instructions to disregard” witness testimony. State v. Swan, 114 Wash.2d 613, 661-62, 790 P.2d 610 (1990). In addition, given the remaining evidence presented at trial, Kueck fails to demonstrate any likelihood that the jury would have reached a different conclusion had the question not been asked. Notably, the jury acquitted Kueck of the assault charge related to throwing the dog kennel.

(ii) Detective Colton Schumacher

¶47 Next, Kueck contends the State improperly questioned Detective Schumacher about the credibility of T.K.’s testimony. In discussing the text messages between T.K. and Kueck, the prosecutor asked Detective Schumacher whether he had “any other corroboration ․ to determine whether or not she was being accurate with you?” RP at 647. Defense counsel objected on the grounds of speculation—asking the detective to interpret text messages—and lack of verification that the messages were authentic. Ultimately, the court allowed the detective to answer the very specific question of whether he considered the content of the messages in corroborating them.

¶48 First, we note that Kueck did not preserve this issue at trial. His only objection to the testimony was based on whether the detective could authenticate the validity of the text messages.

¶49 But even if we consider the comment, Kueck does not demonstrate that the question was a clear request to have one witness comment on the credibility of another witness. Washington courts distinguish between testimony that constitutes a direct opinion on another witness's veracity and testimony about investigative findings or the presence or absence of corroborating evidence, which is permissible factual testimony.

¶50 In State v. Kirkman, the Washington Supreme Court addressed a detective's and a physician's testimony in a child sexual abuse case. 159 Wash.2d 918, 155 P.3d 125 (2007). The court held that a doctor's testimony stating he “found nothing in the physical examination to make him doubt” the victim, but also “nothing to confirm” her explanation, was not an improper comment on credibility. Id. at 923, 155 P.3d 125. The court reasoned that the doctor “was not ‘clearly’ commenting on [the victim's] credibility and actually testified that his findings neither corroborated nor undercut” her account. Id. at 930, 155 P.3d 125.

¶51 Here, the prosecutor was asking a detective if there was corroborating evidence. We do not find this comment to be error.

B. Motions in Limine

¶52 Kueck argues the State violated a pretrial ruling by discussing the testimony of other witnesses with T.K. in violation of ER 615.⁴ During discussions outside the presence of the jury, the State informed the trial court that it communicated with T.K. about potential rebuttal evidence, but not about the testimony of other witnesses. The trial court expressed concern over the contents of the conversation between the State and T.K. The trial court further stated it had observed witnesses speaking with each other in the hallways of the courthouse and that there was clearly an inappropriate discussion occurring. Ultimately, the trial court concluded that the violations, if any, were not prejudicial because the State did not call T.K. as a rebuttal witness.

¶53 On appeal, Kueck admits that he cannot demonstrate prejudice from the violations but contends this is further evidence of pervasive misconduct. Even so, because there is nothing in the record to indicate that any witness's testimony was influenced by conversations held during the trial, we do not consider this error in our prejudice analysis. See State v. Hopson, 113 Wash.2d 273, 284, 778 P.2d 1014 (1989) (“Only errors affecting the outcome of the trial [are] deemed prejudicial.”).

C. Facts Not in Evidence

¶54 Kueck argues the prosecutor committed misconduct by making several references to facts not in evidence during closing arguments.

(i) Other Documents

¶55 The trial court explicitly prohibited any testimony or statements about a civil protection order issued to protect T.K. from Kueck. However, it allowed testimony that law enforcement became aware of court filings in general, which caused law enforcement to investigate the issue.

¶56 During closing arguments, when discussing the jury's ability to rely on circumstantial evidence, the prosecutor suggested that the jury could make reasonable inferences based on its knowledge of other court documents:

If we didn't specifically prove it, there may be reasons—as opposed to a lack of evidence. There are rules that we follow. So, you may reasonable [sic] infer, especially when you know that there are other court documents.

RP at 1170.

¶57 We agree that the prosecutor's comment was misconduct. It is improper for a prosecutor to argue facts not in evidence. State v. Dhaliwal, 150 Wash.2d 559, 577, 79 P.3d 432 (2003). Here, the trial court properly characterized the prosecutor's comment as a request to speculate about documents not in the record.

¶58 Nevertheless, Kueck fails to show prejudice. Defense counsel immediately objected, and the trial court sustained the objection and instructed the jury that it was prohibited from speculating about the other court documents. We presume the jury will follow a court's curative instruction to disregard a prosecutor's improper comment. Swan, 114 Wash.2d at 661-62, 790 P.2d 610.

(ii) Suggesting Prior Choking Incidents

¶59 At trial, T.K. testified that during the couple's fight on September 4, Kueck blocked her from leaving the bedroom, pushed her to the bed, and put his hands on her throat and chest. Despite T.K.’s testimony of a singular event, in closing the prosecutor suggested to the jury that Kueck had choked T.K. at different times. When the prosecutor stated, “She realized that this time when he choked her with his arm —” defense counsel objected. RP at 1119 (emphasis added). The prosecutor stated he would rephrase the question, and the trial court instructed the jury to disregard the comment. The prosecutor proceeded to state, “That when he choked her this time —” defense counsel immediately objected, and the court sustained the objection. RP at 1119. The prosecutor then continued to argue that “[w]hen he choked her and held her down on the bed, when he spanked her by beating her and leaving bruises on her, he was now going to kill her. That's what she thought.” RP at 1120. Defense counsel's objection that there was no evidence that T.K. thought she was going to be killed was sustained. The court then reminded the jury that the arguments of counsel were not evidence, and the jury should rely on their own recollection of the evidence.

¶60 We agree with Kueck that the prosecutor's comments were improper as suggesting facts not in evidence. See Dhaliwal, 150 Wash.2d at 577, 79 P.3d 432. However, we conclude that the comments were not so prejudicial as to have a substantial likelihood of affecting the jury's verdict. Defense counsel properly objected to all three comments, which the trial court sustained and then provided the appropriate curative instruction; this rendered the prosecutor's argument ineffective. Moreover, the jury acquitted Kueck of both assault charges, so there is no direct prejudice.

(iii) Domestic Violence Dynamics

¶61 At a later point in closing, as the prosecutor was describing T.K.’s decision to end the relationship, the prosecutor argued, “[Kueck] didn't like that because people who have to control and use their spouses, or view their spouses as property, don't like to be —” defense counsel objected. RP at 1129. In response to the defense counsel's objection, the court instructed the jury that the attorney's argument was not evidence, and they should rely on their own recollections.

¶62 Finally, in purporting to respond to defense counsel's prior argument that the jury should question T.K.’s credibility because she did not report the domestic violence incident, the prosecutor told the jury that they should use their own common sense and experience to conclude that this was not true. Defense counsel objected. The trial court instructed the jury that the evidence came from witnesses and exhibits. On appeal, Kueck contends that each of these statements was unsupported by any evidence at trial. We disagree.

¶63 “In closing argument the prosecuting attorney has wide latitude to argue reasonable inferences from the evidence.” State v. Thorgerson, 172 Wash.2d 438, 448, 258 P.3d 43 (2011). However, prosecutors may not make prejudicial statements that are not supported by the record. Dhaliwal, 150 Wash.2d at 577, 79 P.3d 432. Here, given the wide latitude afforded attorneys in argument, we are not convinced that the remarks improperly reference evidence outside the record. Kueck does not cite any cases or present any argument to support his premise that domestic violence dynamics are always beyond the experience of jurors and require expert testimony. Additionally, we note that both comments were objected to and that both times the jury was instructed the attorneys’ arguments were not evidence.

D. Misstatement of the Law

¶64 Kueck next argues that the prosecutor committed misconduct by misstating the law. During closing arguments, the prosecutor stated:

You heard [Kueck] talk about why he did this after he finally got around to admitting that he did this. And I submit to you that manifesting an extreme indifference to life is—is exactly what it sounds like. It's not a trick, it's not difficult. When you kill something, that is manifesting an extreme indifference to its life.

RP at 1139 (emphasis added). Defense counsel objected, and the court instructed the jury to rely on the law in the instructions. The to-convict jury instruction required the State to prove that Kueck killed “Chabi, while manifesting an extreme indifference to life.” Clerk's Papers at 374.

¶65 A prosecutor's statements to the jury on the law must reflect the law set forth in the jury instructions. State v. Estill, 80 Wash.2d 196, 199, 492 P.2d 1037 (1972).

¶66 Given our interpretation of the animal cruelty statute above, the prosecutor's statement, if taken in isolation, was a technical misstatement of the law. However, when considered in context, the argument was not clearly incorrect. In the prior sentence, the prosecutor referenced Kueck's stated reasons for killing the horses, suggesting an extreme indifference to life requires more than a mere killing. The prosecutor went on to point out that T.K. testified that the horses were healthy and that she pleaded with Kueck to not shoot any more animals.

3. Witness Misconduct

¶67 Kueck argues he was prejudiced by two instances of witness misconduct. First, during her testimony, and in response to a question about what she did next, T.K. blurted out that she “decided to file the paperwork I needed for protection.” RP at 763. Defense counsel immediately objected as violating the order in limine that prohibited witnesses from discussing the civil protection order. Outside the presence of the jury, the court expressed its concern but ultimately ruled T.K.’s comment “didn't cross a line, but it certainly walked right up to the edge of it.” RP at 766.

¶68 Kueck also identifies testimony from Stuart Davis, a friend of the Kuecks. During cross-examination, when asked if he was present when T.K. received her bruises, the following exchange occurred:

[Defense counsel]: Well, were you present when there were any actions that would have caused bruises on [T.K.]?

[Davis]: I did not see the beating, no.

[Defense counsel]: All right. So, you have no idea, sir, how the bruises were on [T.K.], correct?

[Davis]: I'm glad we agree they're bruises. In my experience, which I know you don't care about, I've seen many beatings, and this was a beating.

[Defense counsel]: I'm going to object.

RP at 856. When directed to answer the question, Davis admitted he was not present.

¶69 “A trial court has wide discretion to cure trial irregularities resulting from improper witness statements.” State v. Gamble, 168 Wash.2d 161, 177, 225 P.3d 973 (2010). When a trial irregularity occurs, such as a witness violating a pretrial order, prejudice is examined in light of the seriousness of the irregularity, the nature of the evidence and whether it was cumulative, and whether the jury was properly instructed to disregard the testimony. Id.

¶70 Here, the trial court found that T.K.’s comment was not a clear violation of the order in limine. Kueck does not assign error to this ruling or argue that it was erroneous. Thus, Kueck has not demonstrated that the comment violated the order in limine.

¶71 Kueck argues on appeal that Davis's comments amounted to an improper opinion of guilt. Although defense counsel raised a general objection to Davis's nonresponsive and inflammatory comment, counsel did not claim the comments amounted to an opinion of guilt. Absent such an objection, the issue is waived unless it falls within the narrow exception of a manifest constitutional error. RAP 2.5(a); Kirkman, 159 Wash.2d at 926, 155 P.3d 125. Kueck does not argue manifest error on appeal, and we decline to consider this issue.

4. Cumulative Error

¶72 Kueck argues that even if individual errors are harmless, the cumulative effect of the errors rendered his trial fundamentally unfair.

¶73 Even when individual instances of misconduct do not warrant reversal, the cumulative effect of these errors may result in an unfair trial. See Cook, 17 Wash. App. 2d at 106, 484 P.3d 13. In order to show prejudice from the cumulative effect of errors that were preserved at trial, the defendant must show that “ ‘the outcome of the trial would have been materially affected had the error not occurred.’ ” State v. Weber, 159 Wash.2d 252, 270, 149 P.3d 646 (2006) (internal quotation marks omitted) (quoting State v. Bourgeois, 133 Wash.2d 389, 403, 945 P.2d 1120 (1997)). The defendant bears the burden of proving the errors are of sufficient magnitude that retrial is necessary. State v. Yarbrough, 151 Wash. App. 66, 98, 210 P.3d 1029 (2009).

¶74 Most of the alleged errors that Kueck used to support his argument on cumulative error are not errors at all, as we explained above, and the errors that did occur do not warrant a new trial. We have determined that the prosecutor made four errors throughout the trial that could have affected the outcome of the trial: (1) asking Kueck if T.K.’s testimony was “pure fiction,” (2) suggesting the jury could consider “other court documents” that were not admitted, (3) twice using the phrase “this time” when describing Kueck choking T.K., and (4) arguing to the jury that T.K. thought she was going to be killed. Defense counsel objected to each error and the trial court sustained the objections and instructed the jury to disregard the comments.

¶75 These errors are not of a sufficient magnitude so as to convince us that Kueck received an unfair trial. Defense counsel was remarkably effective in objecting to each error, and the trial court properly sustained the objections with instructions to the jury. Most of the errors relate to the assault charges, for which Kueck was found not guilty. The trial court denied Kueck's motion for a mistrial based on these errors. Kueck does not assign error to this ruling, and we conclude that the trial court did not abuse its discretion by denying the motion. See State v. Copeland, 130 Wash.2d 244, 294, 922 P.2d 1304 (1996).

¶76 Affirmed.

FOOTNOTES

1.   The jury instructions on this charge omitted the undue suffering alternative.

2.   The court denied the State's attempt to amend the information and add a domestic violence tag to the animal cruelty charges because the information had already been amended numerous times and the State had assured the court that its prior motion to amend was its last.

3.   The State is actually arguing the curative admissibility doctrine, which is colloquially referred to as “ ‘fighting fire with fire.’ ” Rushworth, 12 Wash. App. at 475, 458 P.3d 1192. Courts generally do not allow the State to introduce evidence under this doctrine. Instead, if the State believes defense counsel is introducing inadmissible evidence, the State's remedy is to object—not stay silent and then use the opportunity as an excuse to introduce inadmissible evidence. Id. at 476, 458 P.3d 1192.

4.   ER 615 allows the trial court to exclude witnesses to prevent those witnesses from hearing the testimony of other witnesses. Here, the trial court stated it would be excluding witnesses during the course of the trial.

Staab, C.J.

WE CONCUR: Lawrence-Berrey, J. Murphy, J.