IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                          No. 74143-8-1
                      Respondent,
                                                          DIVISION ONE

                                                          UNPUBLISHED OPINION
JESSE THOMAS FULLER,

                      Appellant.                          FILED: December 27, 2016


      Appelwick, J. — Fuller appeals his conviction for two counts of rape of a

child in the first degree. The six year old victim was a key witness at trial, but her

in-court testimony was difficult to hear. Fuller argues that the trial court erred by

allowing a transcript ofthe victim's testimony to be read to the jury. He also alleges
that the prosecutor committed misconduct in closing argument. We affirm.

                                       FACTS


       A.M.F. told her mother that her father, Jesse Fuller, had been making her

engage in sex acts with him. A.M.F. was four years old at the time. The King
County Sheriff's Office was notified, and Fuller was charged with two counts of

rape of a minor in the first degree.

       At trial, A.M.F. testified about the sexual abuse. The testimony was difficult

to hear, and the prosecutor had to ask A.M.F. numerous times to speak up. The
No. 74143-8-1/2




court provided A.M.F. with a microphone. The court noted that the jurors and the

court alike had difficulties hearing her testimony. During deliberations, the jury

asked, "Can we get a copy of the transcript of [A.M.F.j's testimony because we

had a very hard time hearing her." Instead of providing the jury with a copy of the

transcript, the trial court ordered a transcript of A.M.F.'s testimony be read to the

jury a single time by a bailiff from another chambers.

       The jury found Fuller guilty on two counts of rape of a child in the first

degree. Fuller appeals.

                                    DISCUSSION

       Fuller makes three arguments. First, he argues that the trial court erred by

allowing a transcript of the victim's previous testimony to be read to the jury.
Second, he argues that the prosecutor committed misconduct during closing
arguments. Finally, he argues that even if thesetwo errors do not warrant reversal
on their own, they amount to cumulative error.

  I.   Reading testimony to jury

       Fuller first argues thatthe trial court erred by ordering a transcript ofA.M.F.'s
testimony to be read to the jury due to the difficulty in hearing A.M.F.'s original
testimony.1 He contends that this overemphasized the child victim's testimony and
denied Fuller the right to a fair and impartial jury.


1 The State also admitted as exhibits two videos of A.M.F. In one video, she tells
her mother about Fuller sexually abusing her. The second video is her interview
with a child interview specialist. The jury was permitted to review them in the jury
room. But, Fuller has not alleged any error regarding the jury's review of those
videos in the jury room. We therefore limit our analysis to only the trial court's
decision to have a transcript of A.M.F.'s testimony read to the jury.
No. 74143-8-1/3




      We will overturn a trial court's decision to allow a jury to review testimony

only if we find that the trial court abused its discretion. See State v. Morqensen,

148 Wash. App. 81, 87, 197 P.3d 715 (2008).             Reviewing testimony during

deliberations is disfavored, and must be weighed against the danger that the jury

may place undue emphasis on testimony considered a second time at such a late

stage of the trial. State v. Koontz, 145 Wash. 2d 650, 654, 41 P.3d 475 (2002). But,

whether a jury may rehear testimony is dependent on the particular facts and

circumstances of a case. ]d.

       Fuller relies primarily on two Washington cases. First, he relies on Koontz.

In that case, our Supreme Court held that replaying video of three witnesses'

testimony was reversible error because of the possibility of "undue emphasis" on
certain portions of testimony. \_± at 660-61, 657. The Court reasoned that courts
should balance the needs for reviewing the testimony with procedural safeguards,

such as limiting the amount oftimes the jury can review the video, to prevent juries
from overemphasizing the evidence. Id at 657. And, the Court was careful to note

that the "unique nature ofvideotaped testimony" made replaying video for the jury
especially concerning, and motivated its decision to reverse. Id, at 657, 659-61
       Fuller argues that, under Koontz, reading a transcript to the jury is "a poorer

substitute" than reviewing live testimony via video, and therefore reading a

transcript should raise greater concern than the jury reviewing a video. But, this
directly contradicts the Koontz reasoning, "Reviewing videotaped testimony raises
greater concerns than reading from a transcript because videotaped testimony
No. 74143-8-1/4




allows the jury to hear and see more than the factual elements contained in a

transcript." lcLat655.

       Although Koontz establishes that rereading transcribed testimony is less

concerning than replaying video, any second presentation of testimony is

"disfavored." jU at 654. But, Koontz does not say it is prohibited. See jU And, in

such situations, it is important for the trial court to take "the proper precautions to

address the concerns raised in Koontz."        Morqensen. 148 Wash. App. at 88-89

(holding that trial court "took the proper precautions," such as inviting authority and
arguments from the parties on balancing the concerns raised in Koontz, and
replaying audio only once instead of giving the jury a transcript during
deliberations.). Here, the trial court first invited the parties to submit authority on
the issues so that its decision on the jury's request was properly informed. After

deciding to have the testimony reread, the trial court specifically reminded the jury
that it must take into account all of the evidence presented, and not just the reread

testimony:

               Ladies and gentlemen, you've asked to rehear the testimony
       of [A.M.F.].

              After consulting with the attorneys, Iam granting your request.

               In making this decision, I want to emphasize that I'm making
       no comment on the value or weight to be given to any particular
       testimony in this case. The testimony you requested will be read to
       you here in the courtroom. You will hear it only one time.
               After you've heard the testimony, you will return to the jury
        room to resume deliberations. When you - when you do, remember
       that your deliberations must take into account all of the evidence in
       the case, not just the testimony that you have asked to rehear.
No. 74143-8-1/5




And, it did not grant the jury's initial request to "get a copy of the transcript," but

instead took the more careful approach of allowing the transcripts to be read to the

jury a single time in open court. The trial court applied the types of protections that

Koontz contemplates.

       Fuller also relies on in State v. Monroe, 107 Wash. App. 637, 27 P.3d 1249

(2001). There, a jurywas permitted to read a witness's transcribed testimony while

in the jury box, but was not allowed to reference the transcript in deliberations, jd.

at 640. The court reversed Monroe's conviction, because the trial court expressed

no concern for the possibility of undue emphasis of the testimony, jd. at 645-46.

And, the manner of review—review in the jury box—overemphasized that

testimony. \_± at 640, 643, 645. But, the facts of that case are critically different:

the jury in Monroe could review the transcripts at will in the jury box, but in this
case the testimony was read to the jury once from a transcript, jd, at 640. And,

the Monroe trial court did not find "any logical basis" for disallowing the jury to

review the testimony and imposed no safeguards, whereas the trial court here

implemented the safeguards discussed above. jU at 645. Monroe is factually

distinct and does not control.2

       Fuller also relies on United States v. Binder, 769 F.2d 595 (9th Cir. 1985),

overruled on other grounds by United States v. Morales, 108 F.3d 595, 602 (9th

       2 The Monroe court based its decision on the Court of Appeals' Koontz
decision. Monroe, 107 Wash. App. at 643 ("We believe that fState v. IKoontzf, 102
Wash. App. 309, 6 P.3d 124 (2000),] should control."). We note that the Supreme
Court later reversed the Court of Appeals' Koontz decision. State v. Koontz, 145
Wash. 2d 650, 661, 41, P.3d 475 (2002). Because we hold that Monroe is factually
distinguishable from the instant case, we decline to address whether the Supreme
Court's Koontz decision affected Monroe's validity.
No. 74143-8-1/6




Cir. 1985), which Koontz cited favorably. Koontz. 145 Wash. 2d at 655. In that case

the Ninth Circuit held that the trial court abused its discretion by allowing the jury

to review videotaped testimony in the jury room. Binder. 769 F.2d at 600-01. The

court perceived that replaying the video risked unduly emphasizing that testimony.

Id Binder is critically different than this case: there, the jury was allowed to review

the videotaped testimony in the privacy of the jury room. Id But, here, the trial

court allowed the transcript to be read to the jury in open court. And, Koontz

explicitly notes that replaying video raises greater concern than reading a

transcript. Koontz. 145 Wash. 2d at 655. Binder is not dispositive.

       Fuller also argues that the trial court should have given instructions with

more detail, such as the jury instructions given in United States v. Montgomery.

150 F.3d 983 (9th Cir. 1998), which Koontz cited favorably. Koontz. 145 Wash. 2d at

654. In Montgomery, the trial court allowed a jury to review testimony transcripts

in the jury room. 150 F.3d at 999. The court found no abuse ofdiscretion because

the trial court gave a lengthy instruction that reminded the jury not to emphasize

the transcripts over the other evidence:

       "I want you to bear in mind that the testimony at trial is the evidence,
       not the transcripts. The transcript is not authoritative. If you
       remember something different from what appears in the transcripts,
       your collective recollection is controlling. In other words, the
       transcripts may not serve as a substitute for the collective memories
       of the jury or take the place of the assessment of the credibility of
       witnesses subject to the usual rules. . . . Finally, as the court has
       previously instructed you, you must weigh all of the evidence in the
       case and not focus on any one portion of the trial."

]d at 999-1000 (alteration in original).
No. 74143-8-1/7




    Here the trial court gave a limiting instruction that explicitly reminded the jury

that it must consider all evidence, not just the transcripts. Admittedly, it did not

make the same admonitions as Montgomery regarding the transcript not being

authoritative and regarding reliance on their collective recollections ifdifferent from

the transcript.   But, Fuller has never suggested that the transcript was not an

accurate statement of the testimony given. It is not clear such an admonition was

necessary.


        The trial court allowed the transcript to be read aloud only a single time, did

not allow the jury to bring a transcript into the jury room, and cautioned the jury to

consider all of the evidence. This aligns with the Koontz and Morgensen courts'

emphasis on procedural safeguards. Koontz. 145 Wash. 2d at 654-55; Morgensen.
148 Wash. App. at 88-89. There is little else that the court could have done in this

case to guard against potential undue emphasis. For these reasons, we cannot

say that the trial court's decision to allow the transcript to be read to the jury was

an abuse of discretion.

  II.   Prosecutorial Misconduct

        Fuller next argues that the prosecutor committed misconduct during his

closing argument.

        The defendant bears the burden of proving that the prosecutor's alleged

misconduct was both improper and prejudicial. State v. Emery. 174 Wash. 2d 741,

756, 278 P.3d 653 (2012).         The burden to establish prejudice requires the

defendant to prove that there is a substantial likelihood that the instances of

misconduct affected the jury's verdict. State v. Thorgerson. 172 Wash. 2d 438, 442-
No. 74143-8-1/8




43, 258 P.3d 43 (2011). The failure to object to an improper remark constitutes a

waiver of error unless it is so flagrant and ill-intentioned that it causes an enduring

and resulting prejudice that could not have been neutralized by an admonition to

the jury. Id at 443. Fullerdid not object to any of these statements. His arguments

on this issue are therefore waived unless the remarks were flagrant, ill-intentioned,

and unable to be cured by a supplemental instruction, jd

       A. Appeal To Jurors' Passions

       Fuller first argues that the prosecutor committed misconduct by making an

improper appeal to the jurors' passions. Fuller points to the prosecutor asking the
jury to "[t]hink for a moment about the powerlessness of that little girl." He argues
this error was compounded when the prosecutor elaborated on these statements

by analogizing the victim's willingness to share her story to a child testing the water
for danger before swimming in unknown waters. By the prosecutor's analogy, as
the victim became more comfortable, she began to share more, which explained

the child victim's inconsistent willingness to share her story. In response, the State

contends thatthe prosecutor's comments were not an improper appeal to emotion,

but rather inferences "reasonably drawn from the evidence."

       A prosecutor may not appeal to the passions ofthe jury so as to encourage
a verdict based on emotion rather than evidence. State v. Berube, 171 Wash. App.
103, 118-19, 286 P.3d 402 (2012). This court reviews a prosecutor's allegedly
improper remarks in the context of the total argument. State v. Russell. 125 Wash. 2d
24, 85-86, 882 P.2d 747 (1994). Here, the prosecutor made the "powerlessness"
 comment in the context of explaining to the jury how and when A.M.F. told her
No. 74143-8-1/9



mother about her father's conduct. The prosecutor's next sentence addressed

A.M.F. "trying to articulate to her mother what was happening." A.M.F.'s credibility

was a key issue at trial. A prosecutor has "wide latitude" to comment on and

explain its evidence in closing arguments. See Thorgerson. 172 Wash. 2d at 453.

Based on the context, the prosecutor referenced A.M.F.'s "powerlessness" to

explain A.M.F.'s reluctance to describe the sexual abuse and her delay in alerting

her mother. And, we are not persuaded that a limiting instruction would have been

inadequate.

      With respect to the swimming analogy, Washington courts have upheld

prosecutors' use of analogies and metaphors before. See State v. Fuller, 169 Wn.

App. 797, 828, 282 P.3d 126 (2012).         For example, in Fuller, we upheld a

prosecutor's puzzle analogy for the evidence introduced because the analogy "did

not minimize the State's burden of proof because it did not purport to qualify the

level of certainty to satisfy the beyond a reasonable doubt standard nor did it

minimize or shift the burden of proof to the defendant in the context of the argument

as a whole and the trial court's correct jury instructions." ]d at 826. And, in State

v. Barajas, we affirmed a conviction when the prosecutor compared the defendant

to a "mangie [sic], mongrel mutt." 143 Wash. App. 24, 39-40, 177 P.3d 106 (2007)

(alteration in original). There, though the court found this obviously adverse

metaphor for the defendant improper, it did not find that the metaphor was flagrant,

ill-intentioned, and incurable such that reversal was warranted. ]d 40.

       A swimming analogy for the victim's thought process is not as prejudicial as

the analogy upheld in Barajas. The swimming analogy did not comment on the
No. 74143-8-1/10




burden of proof and did not denigrate the defendant. And, the analogy did not

even relate to proving the elements of the crime charged like the puzzle analogy

in Fuller. It was merely the prosecutor's attempt at a metaphor that presented the

evidence favorably. Fuller has not carried his burden to show that the remarks

were flagrant, ill-intentioned misconduct.

       B. Mischaracterization of the burden of proof

       Second, Fullerargues that the prosecutor committed misconduct by shifting

the burden of proof. He points to a handful of the prosecutor's statements as

burden-shifting. The prosecutor told the jury that if "you believed [the victim], that

is enough in this case for you to find the defendant guilty." Later, she stated,

       [T]he last point I want to make in my closing is the State's burden,
       proof beyond a reasonable doubt. You have an instruction telling
       you about what that means. But in a case like this, it's simple, if you
       believe [A.M.F.] when she tells you what her father did, you are
       satisfied beyond a reasonable doubt.

The State responds that it gave a "proper statement of the law" in its statements

about satisfying the burden. According to the State, it was merely reminding the
jury that a victim's testimony alone can satisfy the beyond a reasonable doubt
standard without any corroborating evidence, physical or otherwise.

       Fuller analogizes to State v. Fleming. 83 Wash. App. 209, 213, 921 P.2d 1076

(1996). In Fleming, this court reversed when the prosecutor told the jury that it
must find that the defendants were lying or mistaken in their testimony in order to

acquit. ]d Fleming is critically different from this case. There, the prosecutor

argued that the jury may acquit only if it did not believe a witness's testimony. ]d
But, here, the prosecutor told the jury that the prosecution had carried its burden


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No. 74143-8-1/11




to convict if it believed the victim-witness.    The former misstated the burden

because it required the defendant to prove something just to support acquittal.

       Here, the prosecutor merely reminded the jury that belief in A.M.F.'s

testimony alone satisfied that burden because her uncontradicted testimony

covered all the elements of the crime. Rape of a child in the first degree is defined

as follows: "A person is guilty of rape of a child in the first degree when the person

has sexual intercourse with another who is less than twelve years old and not

married to the perpetrator and the perpetrator is at least twenty-four months older

than the victim." RCW 9A.44.073(1). A.M.F. testified that Fuller had engaged in

sexual intercourse with her, and that A.M.F. was less than twelve years old. This

satisfied the statutory elements of the crime, and therefore, mere belief in A.M.F.'s

truthfulness was indeed sufficient to find Fuller guilty. The prosecution therefore

did not shift the burden of proof.

       The prosecutor later made the following comment about why rape of a child

does not require proof of a specific date: "this kind of crime notably does not require

the State to prove the specific date. And that makes sense, doesn't it? Because

what child could or would keep track of dates?" She later stated, "The law doesn't

require corroboration. The law doesn't require medical evidence. The law doesn't

require eyewitnesses." Fuller argues that these comments are prohibited under

this court's recent decision in State v. Smiley, 195 Wash. App. 185, 379 P.3d 149

(2016), review denied, 2016 WL 7466613. In Smiley, the prosecutor's closing

argument included a lengthy explanation about why it is good policy to not require

corroborating evidence of sexual assault victims' testimony.        Id at 191. Most


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No. 74143-8-1/12




notably, the Smiley prosecutor stated that ifvictim testimony alone was insufficient

to support a conviction, " 'we'd have to tell the kids, sorry ... we can't hold your

abuser responsible.' " Id at 192 (alteration in original).     This court found the

prosecutor's comments improper because "the implication was clear: if the jury

agreed with defense counsel and refused to convict without corroborating

evidence, other children are in danger." Id at 194. However, the court did not

reverse, id at 197. Smiley did not object at trial, and the court found that the

resulting prejudice would have been curable upon objection. Id

       In Smiley, the improper statements to the jury were focused on policy

implications of a not guilty verdict on other cases. But, the prosecutor here made

no statements that rise to the level of" '[w]e couldn't hold the majority of sexual

abusers responsible.'" jd at 191. Rather, the prosecutor's statement was a brief

explanation that a victim's testimony alone can be sufficient to support the
elements necessary to convict. The prosecutor discussed the policy behind why

rape of a child requires only a charging date range rather than the specific date of
the crime: "And that makes sense, doesn't it? Because what child could or would

keep track of dates?" But, this explanation did not implicate the impact of the

decision of this jury on other sexual assault cases or future policy implications like
the Smiley statements. The statements in Smiley were more prejudicial than the

prosecutor's statements here, yet they did not warrant reversal underthe "flagrant,
ill-intentioned" standard that we must apply here, jd at 197; Thorgerson. 172
Wash. 2d at 443. The policy statements discussed here were not flagrant, ill-

intentioned misconduct.



                                          12
No. 74143-8-1/13




      C. Comment on witness' truthfulness

      Third, Fuller argues that the State personally vouched for A.M.F.'s

credibility. During closing arguments, the prosecutor stated, "I think you knew that

she was telling you what happened." Later, the prosecutor also told the jury that

"you'll look back and know what [A.M.F.] said is what happened to her." The State

contends that these statements were merely a "summation" that amounted to no

more than "a permissible inference drawn from the evidence."

       It is improper for a prosecutor to express a personal opinion on the

credibility of a witness. State v. Warren. 134 Wash. App. 44, 68, 138 P.3d 1081

(2006), affd, 165 Wash. 2d 17, 195 P.3d 940 (2008). But, a prosecutor enjoys wide
latitude to argue draw reasonable inferences from the concerning witness

credibility, id 165 Wash. 2d at 30.

       Here, based on the context, the prosecutor's allegedly wrongful statements

merely stressed A.M.F.'s credibility. One sentence after the prosecutor states
"you'll look back and know," she asks the jury to consider A.M.F.'s demeanor when
judging her credibility. This is a "reasonable inference from the facts concerning
witness credibility" that the prosecutor is allowed to make, id

       Moreover, none of the allegedly wrongful statements expressed the

prosecutor's personal view as to whether the victim was credible. Rather, the
prosecutor's statements were mere suggestions that the jury would, upon
reflection, find A.M.F. to be a credible witness. The two allegedly wrongful

statements to the jury were that "you'll look back and know she was telling you
what happened" and "I think vou knew" the victim was telling the truth. (Emphasis

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No. 74143-8-1/14




added.) The prosecutor did not state something along the lines of "I know" or "I

guarantee" A.M.F. was telling the truth. Fuller has not carried his burden to show

that these comments were flagrant, ill-intentioned misconduct.

 III.   Cumulative Error

        Fuller argues that the foregoing issues amount to cumulative error. The

cumulative error doctrine applies when there have been several trial errors that

standing alone do not warrant reversal, but when combined deny a defendant a

fair trial. State v. Greiff. 141 Wash. 2d 910, 929, 10 P.3d 390 (2000). But, because

we find no error in the rereading of A.M.F.'s testimony and no prosecutorial

misconduct, we find no cumulative error.

        Affirmed.




WE CONCUR:




        ^sG/Ufry, h(^}




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