IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

THE STATE OF WASHINGTON,

 Appellant,

 v.

JOEL DUANE ZWALD,

 Respondent.

No. 84950-6-I

PUBLISHED OPINION

BOWMAN, J. — Joel Duane Zwald appeals his jury convictions for third 

degree child molestation, second degree child molestation, and second degree 

child rape. He argues that the trial court commented on the evidence by 

instructing the jury that to convict Zwald, it need not corroborate the victim’s 

testimony, and that the prosecutor committed misconduct during closing 

argument. He also asks us to remand for the trial court to strike the

nonmandatory legal financial obligations (LFOs) imposed at sentencing based on 

his indigency. We affirm Zwald’s convictions but remand for the court to 

determine whether he is indigent and reconsider the LFOs. 
No. 84950-6-I/2

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FACTS

Zwald and M.C. started dating in 2007. In 2014, M.C., her son J.C., and 

her youngest daughter T.R.1 moved in with Zwald.2 

When T.R. was about 11 or 12 years old, Zwald began sexually assaulting 

her. In 2019, T.R. disclosed the abuse to her school counselor, Tracee Mullen.3 

Mullen reported the abuse to Child Protective Services (CPS) and the high 

school. The school contacted the police. On November 19, 2019, the State 

charged Zwald with one count of third degree child molestation, one count of 

second degree child molestation, and one count of second degree child rape of 

T.R. 

A jury trial began in October 2022. T.R. testified in detail about her

nonexistent relationship with her biological father and her strained relationship 

with her mother during her childhood. T.R. described M.C. as “a very closed-off 

person” and said that she and M.C. “would fight a lot.” T.R. admitted that she 

“act[ed] out quite a lot,” including running away from home. T.R. also said that 

after they moved in with Zwald, she “just kind of stopped getting along with 

everyone in my family,” including Zwald, because “[h]e was molesting me.” T.R. 

testified that after she disclosed the abuse, she moved in with her grandma and 

had not spoken to her mother in the three years since.

 

1 Formerly known as T.M.

2 M.C.’s oldest daughter, K.C., also moved in with Zwald but left the home when 

she graduated high school. 

3 Formerly known as Tracee Smith.
No. 84950-6-I/3

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T.R. then testified about the assaults, which “happened almost on a daily 

basis, . . . either in [her] room or [Zwald’s].” T.R. said that she did not disclose 

the abuse sooner because she feared no one would believe her. But she did tell

her then-boyfriend, D.H., and he eventually encouraged her to disclose the 

abuse to her school counselor, Mullen. On cross-examination, defense counsel 

tried to impeach T.R.’s credibility by questioning her “chronic running away,”

stealing money from M.C. and Zwald, and “sneaking out to spend time with 

[D.H.].” 

The State called Mullen to testify about T.R.’s disclosure and explain that 

as a mandatory reporter, she had to report the abuse to CPS and the high 

school. The State also called several law enforcement officers. Former Everson 

Police Department Officer Jordan Bryant testified that he responded to the high 

school’s initial call to police. Officer Bryant interviewed T.R. and then transferred

the case to the Whatcom County Sheriff’s Office. Whatcom County Sheriff’s 

Office Detective Erik Francis testified that he interviewed T.R. several days later, 

which he “audio video recorded.” Detective Francis explained that he tried to 

contact T.R.’s brother, J.C., but he did not respond, and that he did not try to 

interview T.R.’s former boyfriend, D.H. 

Zwald challenged both officers’ investigations on cross-examination. 

Defense counsel criticized Officer Bryant for not interviewing witnesses other 

than T.R., including D.H., J.C., and one of T.R.’s friends. And he criticized 

Detective Francis’ investigation for the same reason, eliciting testimony that 

along with D.H. and J.C., Detective Francis did not interview another high school 
No. 84950-6-I/4

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counselor or high school teachers. Zwald testified on his own behalf and denied 

ever touching T.R. in an inappropriate manner. 

The trial court instructed the jury before closing arguments. Over Zwald’s 

objection, it gave a no-corroboration instruction that stated, “In order to convict a 

person of child molestation in the second degree or rape of a child in the second 

degree, it is not necessary that the testimony of the alleged victim be 

corroborated.”4

In closing, the prosecutor focused on how Mullen and law enforcement 

helped T.R. “find her voice” and how the State is “going to tell her story” to the 

jury. In his closing argument, defense counsel told the jury that T.R. had a “truth 

problem” and that she was motivated to lie because she wanted to leave home to 

be with D.H. And he claimed that the police investigation was inadequate 

because the officers failed to interview several potential witnesses. In rebuttal, 

the prosecutor argued that the potential witnesses did not have “material”

information and noted that he would not “be happy with law enforcement out 

there talking to people that they don’t need to be talking to.”

The jury convicted Zwald as charged. The court sentenced Zwald to a 

170-month indeterminate sentence and imposed several LFOs, including the

$500 victim penalty assessment (VPA), the $100 DNA5 collection fee, and $450 

in court costs. 

 

4 The court did not include the third degree child molestation charge in the 

instruction, and the parties did not address the issue at trial. During deliberations, the 

jury asked whether the no-corroboration instruction also applied to the third degree child 

molestation charge. The trial court declined to answer the question directly and told the 

jury to “consider the instructions as a whole.” 

5 Deoxyribonucleic acid. 
No. 84950-6-I/5

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Zwald appeals. 

ANALYSIS

Zwald argues that the trial court erred by giving a no-corroboration jury 

instruction and that the prosecutor committed misconduct during closing 

argument. He also asks us to remand to the trial court to strike the 

nonmandatory LFOs due to his indigency. We address each argument in turn.

1. No-Corroboration Jury Instruction

Zwald argues that the trial court’s no-corroboration instruction was an 

unconstitutional comment on the evidence, requiring reversal, and that it violated 

his due process rights. 

A. Comment on the Evidence

Zwald argues that the trial court unconstitutionally commented on the 

evidence by instructing the jury that the State need not corroborate T.R.’s 

testimony. We disagree. 

Article IV, section 16 of our state constitution provides, “Judges shall not 

charge juries with respect to matters of fact, nor comment thereon, but shall 

declare the law.” This is so a judge does not influence a jury by conveying “the 

court’s opinion of the evidence submitted.” State v. Elmore, 139 Wn.2d 250, 275, 

985 P.2d 289 (1999). A jury instruction that does no more than accurately state 

the law pertaining to an issue does not amount to an impermissible comment on 

the evidence. State v. Woods, 143 Wn.2d 561, 591, 23 P.3d 1046 (2001). We 

review whether a jury instruction amounts to a judicial comment on the evidence 
No. 84950-6-I/6

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de novo and in the context of the instructions as a whole. State v. Levy, 156 

Wn.2d 709, 721, 132 P.3d 1076 (2006). 

To determine whether a trial court’s statement amounts to a comment on 

the evidence, we “look to the facts and circumstances of the case.” State v. 

Jacobsen, 78 Wn.2d 491, 495, 477 P.2d 1 (1970). The fundamental question 

underlying our analysis is whether the mention of a fact in a jury instruction 

“conveys the idea that the fact has been accepted by the court as true.” Levy, 

156 Wn.2d at 726. Article IV, section 16’s prohibition on such comments “forbids 

only those words or actions which have the effect of conveying to the jury a 

personal opinion of the trial judge regarding the credibility, weight or sufficiency 

of some evidence introduced at the trial.” Jacobsen, 78 Wn.2d at 495. 

In 1907, the legislature enacted Remington & Ballinger’s Code section

2155, which required the State to corroborate a victim’s testimony in sex cases. 

LAWS OF 1907, p. 396, § 1; see State v. Gibson, 64 Wash. 131, 132, 116 P. 872 

(1911). But even before the legislature passed the 1907 act, our Supreme Court 

repeatedly held that corroboration of the prosecuting witness in sex cases is 

unnecessary. State v. Morden, 87 Wash. 465, 468, 151 P. 832 (1915). Then, in 

1913, the legislature repealed the corroboration statute under Remington & 

Ballinger’s Code section 2443. LAWS OF 1913, ch. 100, § 1; see Morden, 87 

Wash. at 467. Since then, corroboration of a prosecuting witness in sex cases 

has not been required by law. State v. Thomas, 52 Wn.2d 255, 256, 324 P.2d 

821 (1958). 
No. 84950-6-I/7

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After several amendments, our legislature codified the no-corroboration 

common law rule in former RCW 9.79.150 (1975). LAWS OF 1975, 1st Ex. Sess., 

ch. 14, § 2. That statute says, “In order to convict a person of any crime defined 

in this chapter it shall not be necessary that the testimony of the alleged victim be 

corroborated.” Former RCW 9.79.150(1). The legislature uses that same 

language in the current statute, RCW 9A.44.020(1). See LAWS OF 1979, Ex. 

Sess., ch. 244, § 17 (recodifying former RCW 9.79.150 as RCW 9A.44.020). 

For decades, trial courts have been asked to instruct juries in sex cases 

that the law does not require corroboration of an alleged victim’s testimony. Our 

Supreme Court addressed whether a no-corroboration jury instruction amounts to 

a comment on the evidence 75 years ago in State v. Clayton, 32 Wn.2d 571, 202 

P.2d 922 (1949). In that child sexual assault case, the trial court told the jury:

“You are instructed that it is the law of this State that a person 

charged with attempting to carnally know a female child under the 

age of eighteen years may be convicted upon the uncorroborated 

testimony of the [victim] alone. That is, the question is distinctly 

one for the jury, and if you believe from the evidence and are 

satisfied beyond a reasonable doubt as to the guilt of the 

defendant, you will return a verdict of guilty, notwithstanding that 

there be no direct corroboration of her testimony as to the 

commission of the act.”

Id. at 572. The defendant argued that the instruction was an improper comment 

on the evidence, but our Supreme Court held that the instruction 

expressed no opinion as to the truth or falsity of the testimony of 

the [victim], or as to the weight which the court attached to her 

testimony, but submitted all questions involving the credibility and 

weight of the evidence to the jury for its decision. 

Id. at 573-74. 
No. 84950-6-I/8

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Since our Supreme Court decided Clayton, we have consistently held that 

a no-corroboration jury instruction does not amount to a judicial comment on the 

evidence. See State v. Chenoweth, 188 Wn. App. 521, 537, 354 P.3d 13 (2015) 

(because sex crimes “ ‘are rarely[,] if ever[,] committed under circumstances 

permitting knowledge and observation by persons other than the accused and 

the complaining witness,’ . . . it is permissible to instruct the jury that there is no

corroboration requirement,” and it does not amount to a comment on the 

evidence)

6

(quoting State v. Galbreath, 69 Wn.2d 664, 669-70, 419 P.2d 800 

(1966)); State v. Zimmerman, 130 Wn. App. 170, 181-82, 121 P.3d 1216 (2005) 

(holding that under Clayton, a no-corroboration instruction “correctly stated the 

law and was not an improper comment on the evidence”), remanded on other 

grounds, 157 Wn.2d 1012, 138 P.3d 113 (2006). 

Zwald tries to distinguish the instruction in his case from that given in 

Clayton. In Zwald’s trial, the court instructed the jury in accordance with RCW 

9A.44.020(1) that “[i]n order to convict a person of Child Molestation in the 

Second Degree or Rape of a Child in the Second Degree, it is not necessary that 

the testimony of the alleged victim be corroborated.”7 Zwald points out that in 

 

6 First and second alterations in original. 

7

In response to Zwald’s objection to the instruction, the trial court said that it 

“[must] give that instruction” because it is the “current law.” Zwald does not challenge 

that statement, so we do not address it here. But we note that the trial court has broad 

discretion to give or refuse a jury instruction that correctly states the law. See State v. 

Stacy, 181 Wn. App. 553, 569, 326 P.3d 136 (2014). Jury instructions are read as a 

whole and need not be given if the subject matter is adequately covered elsewhere in 

the instructions. State v. Ng, 110 Wn.2d 32, 41, 750 P.2d 632 (1988). Indeed, the 

Washington Supreme Court Committee on Jury Instructions recommends against giving 

the no-corroboration instruction. 11 WASHINGTON PRACTICE: WASHINGTON PATTERN 

JURY INSTRUCTIONS: CRIMINAL 45.02, at 1004 (5th ed. 2021).
No. 84950-6-I/9

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Clayton, the trial court also told the jury in the same instruction that “ ‘the 

question is distinctly one for the jury,’ ” who must return a verdict of guilty “ ‘if you 

believe from the evidence and are satisfied beyond a reasonable doubt as to the 

guilt of the defendant.’ ” Clayton, 32 Wn.2d at 572. 

According to Zwald, his no-corroboration instruction was different than 

Clayton and insufficient because it “did not emphasize that the jury’s job was to 

determine guilt beyond a reasonable doubt.” But the trial court did instruct the 

jury that it must be satisfied beyond a reasonable doubt to convict Zwald. In jury 

instruction 2, it told the jury that “[t]he State is the plaintiff and has the burden of 

proving each element of the crimes beyond a reasonable doubt.” And in 

instruction 1, the court told the jurors that they “are the sole judges of the 

credibility of each witness” and “of the value or weight to be given to the 

testimony of each witness.” It is immaterial that these admonishments do not 

appear in the same instruction because we review jury instructions as a whole

and presume the jury follows the court’s instructions. See State v. Wiebe, 195 

Wn. App. 252, 256, 377 P.3d 290 (2016). 

Zwald also argues that “[e]ven if Clayton were on point, it is no longer 

good law” under State v. Brush, 183 Wn.2d 550, 353 P.3d 213 (2015). In Brush, 

the jury considered whether abuse over a two-month period amounted to “an 

ongoing pattern of psychological abuse of the victim ‘manifested by multiple 

incidents over a prolonged period of time.’ ” Id. at 554-55 (quoting RCW 

9.94A.535(3)(h)(i)). Using a pattern jury instruction, the trial court instructed the 

jury that the term “prolonged period of time” means “ ‘more than a few weeks.’ ” 
No. 84950-6-I/10

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Id. Our Supreme Court determined that the instruction amounted to an improper

comment on the evidence because it told the jury that abuse over a time period

longer than a few weeks meets the definition of a “ ‘prolonged period of time.’ ” 

Id. at 559. As a result, the instruction resolved a contested factual issue for the 

jury. Id. 

The instruction here is different. Unlike the instruction in Brush, the trial 

court did not resolve a factual issue for the jury. That is, the court did not tell the 

jury that the testimony offered by T.R. was sufficient to satisfy the elements of the 

charged crimes. Instead, the instruction told the jury only that it need not 

corroborate T.R.’s testimony to convict Zwald of second degree child molestation 

and second degree rape of a child. Brush does not overrule Clayton.

The trial court did not comment on the evidence by giving a nocorroboration jury instruction.

B. Due Process

Zwald argues that the no-corroboration jury instruction violates due 

process because it highlights a victim’s testimony over other witnesses, including 

the defendant’s, and suggests that the victim’s testimony is subject to a different 

test for credibility. Because Zwald did not object to the instruction on those 

grounds, we decline to address the issue.

Zwald cites several out-of-state cases to support his due process 

argument. See State v. Kraai, 969 N.W.2d 487, 493 (Iowa 2022); State v. 

Stukes, 416 S.C. 493, 499, 787 S.E.2d 480 (2016); Gutierrez v. State, 40 Fla. 

Weekly S359, 177 So.3d 226, 232-33 (2015); Ludy v. State, 784 N.E.2d 459, 461 
No. 84950-6-I/11

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(Ind. 2003). And he says that “Clayton did not address any due process claim.” 

But Zwald did not object to the no-corroboration instruction because it unduly

highlights the victim’s testimony. Instead, he argued that “we do take exception 

to [the no-corroboration instruction] to be inappropriate burden-shifting and 

unconstitutional on those grounds.” 

A party who fails to object to a jury instruction in the trial court waives any 

claim of error on appeal unless he can show manifest constitutional error. State 

v. Edwards, 171 Wn. App. 379, 387, 294 P.3d 708 (2012); RAP 2.5(a). And 

Zwald makes no effort to show manifest constitutional error. As a result, we do 

not address Zwald’s due process argument.8

We reject Zwald’s challenge to the no-corroboration jury instruction.

2. Prosecutorial Misconduct

Next, Zwald argues the prosecutor committed misconduct in closing 

argument by vouching for the State’s witnesses and improperly appealing to the 

jury’s emotions, arguing facts not in evidence, and denigrating defense counsel. 

To prevail on a claim of prosecutorial misconduct, Zwald must establish 

that the prosecutor’s conduct was both improper and prejudicial in the context of 

the entire record and the circumstances at trial. State v. Thorgerson, 172 Wn.2d 

438, 442, 258 P.3d 43 (2011). “Prejudice” means that there is a substantial 

likelihood that the misconduct affected the jury’s verdict. Id. at 442-43. But 

when, as here, a defendant does not object to the alleged misconduct below, he 

 

8 Zwald also argues in passing that the no-corroboration jury instruction violates 

due process because it tells the jury that it may not acquit based on the absence of 

evidence. But Zwald did not object on that basis below, and he does not support the 

argument with legal analysis on appeal. So, we also decline to address that issue. 
No. 84950-6-I/12

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waives any error on appeal unless he can show that the conduct was “ ‘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 

(quoting State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994)).

Generally, we reverse convictions based on flagrant and ill-intentioned 

misconduct in only “ ‘a narrow set of cases where we [are] concerned about the 

jury drawing improper inferences from the evidence.’ ” State v. Loughbom, 196 

Wn.2d 64, 74, 470 P.3d 499 (2020) (quoting In re Pers. Restraint of Phelps, 190 

Wn.2d 155, 170, 410 P.3d 1142 (2018)). Our analysis focuses on “ ‘whether the 

defendant received a fair trial in light of the prejudice caused by the violation of 

existing prosecutorial standards and whether that prejudice could have been 

cured with a timely objection.’ ” Id. at 75 (quoting State v. Walker, 182 Wn.2d 

463, 478, 341 P.3d 976 (2015)).

A. Amplifying T.R.’s Voice

Zwald argues that the prosecutor committed misconduct in his closing 

argument because he vouched for T.R.’s credibility and appealed to the passion 

and prejudice of the jury when he argued that he and other public servants 

amplified T.R.’s “voice.” We disagree. 

It is misconduct for a prosecutor to express a personal belief in the 

veracity of a witness. State v. Ish, 170 Wn.2d 189, 196, 241 P.3d 389 (2010) 

(plurality opinion). Vouching occurs if a prosecutor either (1) places the prestige 

of the government behind the witness or (2) suggests that information not 

presented to the jury supports the witness’ testimony. State v. Robinson, 189 
No. 84950-6-I/13

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Wn. App. 877, 892-93, 359 P.3d 874 (2015). But prosecutors may “argue 

reasonable inferences from the evidence, including evidence respecting the 

credibility of witnesses.” Thorgerson, 172 Wn.2d at 448. We will not find 

prejudicial error unless it is “ ‘clear and unmistakable’ ” from the record that 

counsel expressed a personal opinion. State v. Brett, 126 Wn.2d 136, 175, 892 

P.2d 29 (1995) (quoting State v. Sargent, 40 Wn. App. 340, 344, 698 P.2d 598 

(1985)). 

Prosecutors also commit misconduct when they use arguments designed 

to incite the passions or prejudices of the jury. In re Pers. Restraint of Glasmann, 

175 Wn.2d 696, 704, 286 P.3d 673 (2012) (plurality opinion). These kinds of 

arguments create a danger that the jury may convict for reasons other than the 

evidence produced at trial. State v. Ramos, 164 Wn. App. 327, 338-39, 263 P.3d 

1268 (2011) (citing United States v. Solivan, 937 F.2d 1146, 1153 (6th Cir. 

1991)).

Here, during closing argument, the prosecutor pursued a theme of 

amplifying T.R.’s voice: 

I stand here toward you one of a long line of public servants 

who have served and provide the voice of [T.R.]. Because in cases 

like these, cases where the alleged victim is a child of inappropriate 

sexual contact, there are no other witnesses, there is nobody else 

to tell [T.R.]’s story. There is no video cameras to tell [T.R.]’s story. 

There is no DNA to tell [T.R.]’s story. There is no forensic analysis 

to tell [T.R.]’s story. Why? Why? Because the alleged victims of 

child sex cases have no other witnesses. They are the only other 

person in the room when these acts occur and they are children. 

They are children being violated by the people they trust the most. 

How does a child find their voice in that set of circumstances? How 

does a child find the ability to come forward with their story? 

 
No. 84950-6-I/14

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The prosecutor described how T.R. first disclosed the abuse to her school 

counselor, Mullen: 

[T.R.] disclosed to her school counselor . . . in response to the 

school counselor saying have you suffered from sexual abuse. 

That is when everything changed for [T.R.]. That is when she had 

an opportunity to find her voice. To tell somebody what happened 

to her.

The prosecutor argued that by contacting CPS, Mullen “began the chain of public 

service [that was] going to serve to amplify [T.R.]’s voice.” 

The prosecutor then described how law enforcement investigated T.R.’s 

abuse. He said that the officers testified “how really their job is to give that child 

a voice, to let them tell their story.” And he told the jury that law enforcement 

created a “safe space for [T.R.] to tell her story,” and that “[a]fter years of 

suffering abuse at the hands of [Zwald], . . . [law enforcement was] going to 

listen to her and let her tell her story.” 

Finally, the prosecutor told the jury, “I’m going to tell [T.R.]’s story to the 

individuals that finally opened up to her. I’m going to tell her story to the people 

who were willing to listen and to now come before you, 12 people she has never 

seen before.” As the prosecutor described T.R.’s testimony, he commented that 

Zwald “took . . . away” T.R.’s choice to consent and questioned, how is “that girl 

going to find her voice? She doesn’t at first. She keeps it in.” The prosecutor 

argued that T.R. did not immediately disclose the abuse to avoid upsetting her 

mother. And he argued that T.R. showed “courage” by disclosing it to Mullen and 

then law enforcement and by testifying at trial. 
No. 84950-6-I/15

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First, Zwald contends the prosecutor’s arguments amount to vouching for 

T.R.’s credibility. He likens this case to the prosecutor’s comments in Sargent. 

In that case, we reversed based on the prosecutor’s statement to the jury, “ ‘I 

believe [the witness]. I believe him when he tells us that he talked to the 

defendant.’ ” 40 Wn. App. at 353, 343.9 We held that those statements were 

both improper and prejudicial because they bolstered the credibility of the only 

witness directly linking the defendant to the crime, and all the other evidence 

against the defendant was circumstantial. Id. at 345. 

This case is different. While we view the prosecutor’s argument as selfaggrandizing and dramatic, he did not tell the jury that he believed T.R.’s 

testimony. Instead, the prosecutor argued that it was the job of public servants, 

including T.R.’s school counselor and law enforcement, to relay to the jury what 

T.R. told them. And it was his job as prosecutor to bring T.R.’s testimony to the 

jury. At the same time, the prosecutor affirmed to the jury that is was their “job”

to “determine the credibility of the witnesses.” As much as the prosecutor argued 

that the public servants “amplif[ied]” T.R.’s voice, he appears to be emphasizing 

their roles in the judicial process and how those roles brought the evidence 

before the jury. 

Zwald fails to show that the prosecutor expressed his personal belief in 

T.R.’s allegations during closing argument. So, the prosecutor’s argument did

not amount to vouching. 

 

9 Emphasis omitted. 
No. 84950-6-I/16

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Zwald also argues that the prosecutor’s argument sought to enflame the 

passions and prejudices of the jury. Zwald likens his case to State v. BautistaCaldera, 56 Wn. App. 186, 194, 783 P.2d 116 (1989). In Bautista-Caldera, the 

prosecutor stated, “ ‘[D]o not tell that child that this type of touching is okay, that 

this is just something that she will have to learn to live with. Let her and children 

know that you’re ready to believe them and [e]nforce the law on their behalf.’ ” 

Id. at 194-95.10 We determined the prosecutor impermissibly asked the jury to 

send a message to society by convicting the defendant. Id. at 195. 

Zwald argues his case is similar to Bautista-Caldera because the 

prosecutor took on the role of T.R.’s “personal advocate,” and he tried to align 

the jury with the State as public servants with a responsibility to protect T.R. But 

the prosecutor did not tell the jury he was a personal advocate for T.R. or that 

they should convict for any reason other than the evidence presented at trial. 

And, in any event, Zwald did not object to the argument and fails to show that the 

court could not cure any prejudice with a timely objection. 

The prosecutor did not vouch for T.R.’s credibility or impermissibly appeal 

to the passions and prejudices of the jury during closing argument. 

B. Law Enforcement Investigation

Zwald argues the prosecutor improperly relied on facts not in evidence 

regarding law enforcement’s investigation and vouched for their credibility. We 

agree, but Zwald does not show prejudice.

 

10 Emphasis omitted; second alteration in original. 
No. 84950-6-I/17

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A prosecutor may not suggest that evidence not presented at trial provides 

additional grounds for finding a defendant guilty. Russell, 125 Wn.2d at 87. But 

a prosecutor may argue that the evidence does not support the defendant’s 

theory. Id. And prosecutors may make a fair response to the arguments of 

defense counsel. Id. Further, a prosecutor has wide latitude in closing argument 

and may draw reasonable inferences from the evidence. Thorgerson, 172 Wn.2d 

at 448. We consider a prosecutor’s comments in the context of the entire case. 

Id. at 443.

In closing, Zwald’s attorney argued that law enforcement should have 

interviewed additional witnesses: 

[Mullen], school counselor, she filed a report. That’s what she was 

supposed to do. She was not tasked, and I am not alleging she 

failed a task, she is not tasked with doing an investigation. She met 

her obligation. Box was checked. [T.R.] said, yes, I was sexually 

assaulted or whatever the phrase was, she called people, law 

enforcement responded, CPS responded. [Mullen] did her job. 

Interesting, law enforcement didn’t interview her. [Officer] Bryant 

did not interview [Mullen]. Detective Francis did not interview 

[Mullen]. . . . Nobody talked to [another high school counselor]. . . .

. . . .

As I said, how hard would it be with this level of allegation, 

this much penalty in play, how hard would it be to go to the school 

and talk to the teachers? Hey, what do you think about [T.R.]? Did 

she show up? Is she a good student? Does she tell the truth? 

Nobody talked to [D.H.]. Nobody talked to [D.H.]. That’s 

remarkable. It should be offensive to you that you are stuck with 

this emotional testimony and nothing to support it and you are left 

with the prosecutor saying [M.C.] is a bad mom, so you should 

convict.

In the prosecutor’s rebuttal, he argued:

You know, in every case you can say should have talked to 

this person. Should have talked to this person. Should have taken 

that photo. Should have taken . . . that photo. What matters, we 

went through this on the stand, is if there is evidentiary value from 
No. 84950-6-I/18

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what law enforcement sees and you heard from Detective Francis, 

yeah, I reached out to this person, I reached out to that person, 

they didn’t get back to me and none of these people that defense 

counsel are suggesting should have been talked to were present. 

Right. They don’t have information as to what really transpired in 

those rooms over those years. They don’t have that information. 

They are not going to give us that information. What are we going 

to get from [D.H.]? (Unintelligible) an ex-boyfriend. It is not 

material value. We rely on our law enforcement investigators to 

make that determination, to use their time and resources efficiently. 

This is not the only case they’re investigating. They are judicious 

with what they are doing, and I can tell you, I am not going to be 

happy with law enforcement out there talking to people that they 

don’t need to be talking to, that’s not going to be valuable to the 

presentation of our case.

Zwald argues that the prosecutor argued facts not in evidence by 

asserting that law enforcement did not interview certain witnesses because their 

testimony was “not [of] material value.” He is correct. Neither party presented 

evidence at trial about the content of the other witnesses’ testimony. So, his 

argument improperly referenced facts not in evidence. See State v. Teas, 10 

Wn. App. 2d 111, 128, 447 P.3d 606 (2019) (a prosecutor commits misconduct 

by asking the jury to decide a case based on evidence outside the record). And 

the State concedes that “[t]he prosecutor’s isolated reference that he would not 

be happy if investigators were talking to people that are not materially valuable to 

the case” amounts to improper vouching. We accept the State’s concession; the 

comment was improper. 

Still, Zwald did not object to the prosecutor’s argument, and he fails to 

show that the court could not have alleviated any prejudice through a curative 

instruction. So, Zwald fails to show that the prosecutor’s comments were so 

flagrant and ill intentioned that they caused an enduring and resulting prejudice 
No. 84950-6-I/19

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that the trial court could not have cured by an admonition to the jury. Any error is 

waived.

C. Denigration of Counsel

Finally, Zwald argues that the prosecutor improperly denigrated defense 

counsel during his rebuttal argument. We agree in part, but again, Zwald does 

not show prejudice.

In general, it is improper for the prosecutor to disparagingly comment on 

defense counsel’s role or impugn the defense lawyer’s integrity. Thorgerson, 

172 Wn.2d at 451. Here, the prosecutor argued: 

We talked about truth issues, you know, tragedy alleged victim is a 

classic defense tactic and I’m sorry it happened in this case, but, 

you know, essentially, what he is trying to do is call her a liar. 

Right. That’s his game. Right. I’m going [to] tell you guys she is 

lying. That’s what he is trying to do. They bring up her past as a 

child. Okay. A child struggling with a broken home, struggling with 

not having a biological father there, struggling with the issues that 

have been presented with her and her mom. The child has truth 

issues. The child has family issues. She is acting out in ways that 

children do.

Zwald argues that the comments mischaracterized and impugned his 

attorney. The State characterizes the comments as “summarizing Zwald’s 

argument that the victim was a liar who should not be believed.” But because the 

prosecutor appears to make a personal reference to defense counsel, calling the

trial strategy “his game,” we tend to agree with Zwald. Still, again, because

Zwald did not object to the argument and a curative instruction could have 

alleviated any potential prejudice, he waives any error. 

We reject Zwald’s argument that we must reverse his convictions due to 

prosecutorial misconduct.
No. 84950-6-I/20

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3. LFOs

Finally, Zwald argues we should remand to the trial court to strike his 

LFOs based on indigency. The State agrees remand is necessary to allow the 

court to consider whether Zwald has the ability to pay the nonmandatory LFOs. 

We agree with the State.

When the court sentenced Zwald in January 2023, it imposed the $500 

VPA, $100 DNA collection fee, $200 criminal filing fee, and $250 jury demand 

fee. At that time, the $500 VPA and $100 DNA collection fee were mandatory 

under former RCW 7.68.035(1)(a) (2018) and former RCW 43.43.7541 (2018). 

But while Zwald’s appeal was pending, the legislature amended both statutes, 

eliminating those LFOs for indigent defendants. LAWS OF 2023, ch. 449, §§ 1, 4. 

And the amended statutes apply prospectively to cases pending appeal at the 

time of the amendments. State v. Ellis, 27 Wn. App. 2d 1, 16, 530 P.3d 1048 

(2023) (citing State v. Ramirez, 191 Wn.2d 732, 748-49, 426 P.3d 714 (2018)). 

Further, under RCW 10.01.160(3), the court may not order an indigent 

defendant to pay court costs. At the time of Zwald’s sentencing, the court did not 

inquire about his ability to pay the LFOs. But on appeal, the trial court found him 

indigent and allowed him to proceed at public expense. We remand for the trial

court to determine whether Zwald is indigent and reconsider imposition of the 

LFOs. See Ellis, 27 Wn. App. 2d at 16-18.

In sum, the trial court did not err by giving a no-corroboration jury

instruction in accordance with RCW 9A.44.020(1). And we reject Zwald’s 

argument that we must reverse his case due to prosecutorial misconduct. We 
No. 84950-6-I/21

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affirm Zwald’s convictions but remand for the trial court to consider whether he 

has the ability to pay his nonmandatory LFOs.

WE CONCUR: