Volume 22 — Washington Appellate Reports

<bold>[1] Criminal Law — Trial — Unresponsive Remarks of Witness —</bold> <bold>Effect.</bold> Whether an unresponsive remark of a witness requires a mistrial depends upon whether it denied the defendant a fair trial, taking into consideration the circumstances within which it occurred, the nature and timing of the corrective action by the court, and the propriety of the conduct of counsel. <bold>[2] Criminal Law — Trial — Unresponsive Remarks of Witness —</bold> <bold>Corrective Action — Presumptions.</bold> A jury is presumed to follow a court's instruction to disregard certain testimony. <bold>[3] Sodomy — Evidence — Complaint of Victim — In General.</bold> Evidence that the prosecuting witness in a sodomy prosecution made a complaint shortly after the incident is not inadmissible hearsay and is proper in the State's case in chief.<page_number>Page 592</page_number> <bold>[4] Criminal Law — Habitual Criminals — Prosecutorial Discretion</bold> <bold>— Validity.</bold> The habitual criminal statute (RCW <cross_reference>9.92.090</cross_reference>) does not unlawfully delegate legislative authority to the prosecuting attorney, and the exercise of the prosecutor's discretion does not violate equal protection if it is not arbitrary, capricious, or based upon constitutionally invidious standards. The standards for applying the statute need not be uniform throughout the entire state. <bold>[5] Criminal Law — Habitual Criminals — Second Proceeding —</bold> <bold>Validity.</bold> A second and independent determination that a defendant is a habitual criminal is not superfluous when the only earlier determination is subject to appeal and there is no attempt to duplicate the punishment or inhibit the right of appeal in the earlier determination.

<bold>[1] Contracts — Rescission — In General.</bold> A contract may be rescinded by mutual agreement of the parties to return to that state that prevailed prior to their entering into the contract. One party may expressly or impliedly assent to another's offer to rescind. Such an agreement does not have to be in writing even if the original contract is written. <bold>[2] Appeal and Error — Findings of Fact — Review — Test.</bold> Findings of fact are not binding on an appellate court if not supported by substantial evidence regardless of whether the evidence preponderates against them. <bold>[3] Compromise and Settlement — Settlement Offer — Admissibility</bold> <bold>— State of Mind.</bold> An offer of settlement may not be admitted for the limited purpose of showing the state of the mind of the offeror.