IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, Respondent,

v. MICHAEL ANDREW HECHT, Appellant. No. 71059-1-

PUBLISHED OPINION FILED: February 18,2014 C23 t*8 jr- ^33 -rj rn m""* CO CO -C>~ 33. §-of 

### fer1 ac 2>o U5 OT a> a-<: 

### Verellen, J. — A prosecutor improperly appeals to the passion and prejudice of 

### a jury by using graphics in closing argument that show the defendant's face with the 

### word "GUILTY" superimposed in red.1 Michael Hechtwasconvicted offelony harassment and patronizing a prostitute. During closing argument, the prosecutor used 

### multiple slides showing Hecht's photographwith a large red "GUILTY" superimposed over his face. There is no legitimatepurpose forsuch images in a criminal trial. Such 

### misconduct was flagrant and ill-intentioned, and the prejudicial impact could not have been cured by a jury instruction. We reverse and remand for a new trial.
FACTS 

### In2008, Hecht was elected to a superior courtjudge position for Pierce County, 

### defeating incumbentJudge Sergio Armijo. During the campaign, shopkeeperAlbert Milliken told Armijo's son Morgan that Hecht patronized Tacoma street prostitutes. 

### Milliken suspected Hecht patronized Joseph Pfeiffer. Milliken talked to Pfeiffer, then

In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 707-10, 286 P.3d 673 (2012).No. 71059-1-1/2 provided Morgan's telephone number to Pfeiffer and Pfeiffer's to Morgan. Morgan contacted Pfeiffer, investigated the rumors surrounding Hecht, and reported his findings 

### topolice. Pfeiffer notified Hecht aboutthese exchanges.2 Pfeiffer also told Hecht that he suspected Joey Hesketh had spoken about Hecht patronizing prostitutes. Hecht and Pfeiffer found Hesketh and Michael Mundorffwalking in an alley. Hecht drove his car quickly toward the two men, stopping inches from Hesketh. Hecht told Hesketh, "You better not be talking about me. IfIfind out you are 

### talking about me, Iamgoing tokill you."3 Hesketh tookthe threatseriously. Following the Tacoma Police Department's investigation ofthe allegations, the 

### State charged Hecht withone count of felony harassment pursuant to RCW 9A.46.020 and one count of patronizing a prostitute pursuant to RCW 9A.88.110. The case was tried to a jury. At trial, Hesketh and Mundorff testified that Hecht threatened to kill Hesketh. Pfeiffer testified that Hecht had not threatened Hesketh. Pfeiffer, Hesketh, John Marx, and Edward Smith testified about multiple instances when Hecht picked them up in downtown Tacoma, took them to his law office for sex, and then paid them. Hecht testified that he occasionally picked up transients to give them work in his office or on his campaign. He denied paying anyone for sex. Hecht acknowledged that he knew Pfeiffer and occasionally gave him money or clothing. Hecht acknowledged that he met Hesketh inAugust of 2008, but denied threatening him. Hecht testified that he had never seen Marx or Smith. 

### 2Detective Bradley Graham recovered telephone recordsshowing callsbetween Hecht and Pfeiffer between August 2008 and January 2009. 

### 3Report of Proceedings(Oct. 15, 2009) at 693.No. 71059-1-1/3 

### In closing argument, the prosecutoremployed a slideshow showing images of trial evidence, quotes from witnesses at trial, and titles and commentary reflecting the prosecutor's argument. Slide 85 was titled "PATRONIZING A PROSTITUTE" and 

### showsHecht's driver's license photo nextto a booking photo ofPfeiffer.4 Theword "GUILTY" appears in red, diagonally across Hecht's face. Slide 65, titled "COUNT I



### HARASSMENT" shows Hecht's license photo nextto abooking photo ofHesketh.5 Again, the word "GUILTY" appears in red, diagonally across Hecht's face. Slide 84 bore the title "DEFENDANT'S CREDIBILITY," asked "Ifhe's not truthful about the littlethings



### . . . [w]hy should you believe him when he denies the big things?" and answered "YOU SHOULDN'T."6 

### The juryconvicted Hecht on both counts. The trial court imposed community service in lieu of jail time for the harassment conviction, and suspended the sentence for the solicitation conviction. Hecht appeals. ANALYSIS Hecht first contends that the prosecutor's use ofslides in closing argument 

### showing the word "GUILTY" superimposed over a photograph of Hecht's face violated his right to a fairtrial. We agree, and reverse his convictions.



### 4Clerk's Papers at 526. Division Two of this court granted appellant's motion to 

### supplementthe record with the slides used during the State's closing argument, finding they were "visual adjuncts to the verbatim report ofclosing arguments," notadditional evidence. Clerk's Papers at 440. 

### 5Clerk's Papers at 506. 

### 6Clerk's Papers at 525.No. 71059-1-1/4 The right to a fair trial is a fundamental liberty secured by the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 22 ofthe Washington 

### State Constitution.7 "'A "[fjairtrial" certainly implies a trial in which the attorney representing the state does not throw the prestige of his public office

. . . and the 

### expression ofhis own beliefofguilt into the scales againsttheaccused.'"8 Aprosecutor may make use ofgraphics in closing argument to highlight relevant evidence and generally has wide latitude to argue reasonable inferences from the evidence, but 

### prosecutorial misconduct may deprive adefendant ofhis constitutional rightto afairtrial.9 To prevail on a claim ofprosecutorial misconduct, a defendant must show that 

### theprosecutor's conductwasboth improper and prejudicial.10 To show prejudice, a defendant must demonstrate a substantial likelihood that the misconduct affected the 

### jury verdict.11 BecauseHechtfailed toobject attrial to theargument andgraphics, heis required to establish that the misconduct was so flagrant and ill-intentioned that it caused an enduring and resulting prejudice that could not have been neutralized by an 

### admonition to thejury.12 In In re Personal Restraint of Glasmann, our Supreme Court recently addressed a claim ofprosecutorial misconduct based on similar slides used in closing argument: At least five slides featured Glasmann's booking photograph and a 

### caption. Inone slide, the booking photo appeared above the caption, "DO 7 Glasmann. 175 Wn.2d at 703. 

### 8jd. at 704 (alterationsin original) (internal quotation marks omitted) (quoting State v. Monday, 171 Wn.2d 667, 677, 257 P.3d 551 (2011)). 

### 9jd, at 703-04. 10 id, at 704. 11 kL 12 Id.No. 71059-1-1/5 YOU BELIEVE HIM?" In another booking photo slide the caption read, "WHY SHOULD YOU BELIEVE ANYTHING HE SAYS ABOUT THE ASSAULT?" Near the end ofthe presentation, the booking photo appeared three more times: first with the word "GUILTY" superimposed diagonally in red letters across Glasmann's battered face. In the second slide the word "GUILTY" was superimposed in red letters again in the opposite direction, forming an "X" shape across Glasmann's face. Inthe third slide, the word "GUILTY," again in red letters, was superimposed 

### horizontally overthepreviously superimposed words.l13] The court reversed Glasmann's convictions, finding that the prosecutor's slides and argument were flagrant and ill-intentioned misconduct. The court noted: Our courts have repeatedly and unequivocally denounced the type of conduct that occurred in this case. [W]e have held that it is error to submit evidence to thejury that has not been admitted at trial. The "long standing rule" is that "consideration ofany material by a jury not properly admitted as evidence vitiates a verdict when there is a reasonable ground to believe that the defendant may have been prejudiced."
Here, the prosecutor intentionally presented thejury with copies of Glasmann's booking photograph altered by the addition ofphrases calculated to influence thejury's assessment ofGlasmann's guilt and 

### veracity. . . . There certainly was no photograph inevidence that asked "DO YOU BELIEVE HIM?" There was nothing that said, "WHY SHOULD YOU BELIEVE ANYTHING HE SAYS ABOUT THE ASSAULT?" And there were no sequence ofphotographs inevidence with "GUILTY" on the face or "GUILTY, GUILTY, GUILTY." Yet this "evidence" was made a part 

### ofthe trial bythe prosecutorduring closing argument.[14] The Supreme Court also stressed that existing case law and professional standards forprosecutors preclude the expression ofpersonal opinions of the defendant's guilt and "clearlywarned against" such use of the slides in closing 

### argument.15 The courtemphasized that a prosecutor has the duty to "'seekconvictions
13175 Wn.2d 696, 701-02, 286 P.3d 673 (2012) (citations omitted). 

### 14 Id at 704-06 (citations omitted) (internal quotation marks omitted) (quoting State v. Pete, 152 Wn.2d 546, 555 n.4, 98 P.3d 803 (2004)). 15 Id. at 707.No. 71059-1-1/6 

### basedonly onprobative evidence and sound reason.'"16 Consistentwith this duty, a prosecutor "'should not use arguments calculated to inflame the passions or prejudices 

### ofthejury.'"17 Thecourt concluded that the pervasive misconduct could not becured by

an instruction. The slides of Hecht's photograph with a large red "GUILTY" printed across his face were at odds withthe prosecutor's duty to ensure a fair trial. No legitimate purpose 

### is served by a prosecutor showing the jury a defendant's photograph with the word 

### "GUILTY" superimposed over his face. Such images are the graphic equivalent of 

### shouting "GUILTY."18 "A prosecutorcould never shout in closing argumentthat'[the 

## defendant] is guilty, guilty, guilty!' and itwould be highly prejudicial to do so."19 The prosecutor argues that the driver's license photo of Hecht was not equivalent to the booking photo of Glasmann's battered face. Butthe prosecutor's graphics, 

### though arguably less severe than those at issue in Glasmann, were clearly improper. Moreover, the prejudicial impact of the word "GUILTY" was magnified bythe fact it was written in capital letters, in red, and on a diagonal, obvious graphic devices for 

## drawing the eye, implying urgency ofaction, and evoking emotion.20 This manipulation unfairly injected inflammatory extrinsicconsiderations into the argument.



### 16 ]d at 704 (quoting State v. Casteneda-Perez, 61 Wn. App. 354, 363, 810 P.2d 74(1991)). 

### 17 Jd. (quoting American Bar Association, Standards ForCriminalJustice std. 3-5.8(c) (2d ed. 1980)). 

### 18 \± at 709-10 ("The prosecutor's impropervisual 'shouts' ofGUILTY urged the jury to find Glasmann guilty as charged."). 

### 19 id at 709. 20 See id.
6No. 71059-1-1/7 

### Individuals retain and processinformation in differentways.21 Graphics can be a legitimate tool to summarize detailed information or to highlight express quotes from the record. But as in Glasmann, the prosecutor presented images implying his opinion that Hecht was guilty. And slide 84, which stated that "YOU SHOULDN'T [believe Hecht]" appears to state the prosecutor's personal opinion that Hecht lacked credibility. The significance of this slide in isolation is debatable; however, the cumulative impact ofthe "YOU SHOULDN'T" slide and the slides proclaiming Hecht "GUILTY" is substantial. 

### Although the prosecutor's verbal argument was largelytemperate, that does not diminish the dramatic impact ofthe improper graphics. As in Glasmann, the use ofthe multiple slides "may well have affected thejurors' 

### feelings about the need to strictly observe legal principles and the care it must take in 

### determining [the defendant's] guilt."22 The harassment charge against Hecht required thejury to assess Hecht'scredibility and toweigh it against the credibility ofPfeiffer, Hesketh and Mundorff. Similarly, the prostitutioncharge required the jury to weigh the credibility of Hecht and Pfeiffer. 

### We conclude that the prosecutor's slides undermined Hecht's right to a fair trial 

### bycreating the substantiallikelihood of a verdict improperly based on passion and prejudice. "The impact of such powerful butunquantifiable material on the juryis

21 See id. at 708-09 ("'[VJisual arguments manipulate audiences by harnessing 

### rapid unconscious or emotional reasoning processes and byexploiting the fact that we do not generally question the rapid conclusions we reach based on visually presented information.'" (alteration inoriginal) (quoting Lucille A. Jewel, Through a GlassDarkly: Using Brain and Visual Rhetoric toGain a ProfessionalPerspective on Visual Advocacy, 19 S. Cal. Interdisc. L.J. 237, 289 (2010))). 22 Id. at 706.No. 71059-1-1/8 

### exceedingly difficulttoassess"23 but, as in Glasmann, we conclude thatthemisconduct

was so flagrant and ill-intentioned that itcaused an enduring and resulting prejudice that could not have been neutralized by an admonition to thejury. The prosecutor's misconduct necessitates reversal of both convictions and remand for a new trial. None ofthe remaining issues raised by Hecht merit appellate relief. We address them because they may surface on retrial. ER 404(b) Evidence 

### Over objection, the trial court allowed the State to call Smith and Marx to testify about their sexual encounters with Hecht. The trial court ruled pretrial that Marx could 

### testify that Hecht paidhim for sex on 10 to 15 occasions between 2001 and 2002, and that Smith could testify about Hecht paying him forsex on multiple occasions. The court admitted the evidence under ER 404(b) as evidence of a common scheme or 

### plan.24Hecht contends thatthe trial court abused its discretion by allowing Smith and 

### Marx totestify about hisprior uncharged acts ofsoliciting prostitutes. His argument is
not persuasive. ER 404(b) provides: 

### Evidence ofother crimes, wrongs, or acts is not admissible to prove the 

### character of a person in order to show action in conformity therewith. It 

### may, however, be admissible for other purposes, such as proofofmotive, 

### opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.



### 23 id at 712. 24 The trial court admitted Hesketh's testimony to establish Hecht's motive and the reasonableness ofHesketh's fear Hecht would carry out his threat to kill. Hecht did not contest that Hesketh's testimony was admissible for these purposes. 8No. 71059-1-1/9 To be admissible under ER 404(b) to demonstrate a common scheme or plan, the evidence must be "'(1) proved by a preponderance ofthe evidence, (2) admitted for the purpose of proving a common scheme or plan, (3) relevant to prove an element of 

### the crime charged or to rebut a defense, and (4) moreprobative than prejudicial.'"25 The evidence must reveal "that the person 'committed markedly similar acts of 

### misconduct againstsimilarvictims under similar circumstances.'"26 Atrial court's ruling under ER 404(b) isreviewed for an abuse ofdiscretion.27 The common scheme or plan rationale for admitting evidence frequently appears in sex offense cases involving a defendant's "grooming" behavior, and such cases are 

### helpful here by analogy.28 Forexample, in Statev. DeVincentis,29 our Supreme Court held that prior misconduct may be admissible to show a common scheme or plan where the prior crime and the present crime were committed in a similar way and under similar circumstances, without requiring proof ofany overarching plan or any unusual techniques that might constitute the defendant's "signature" characteristic. Here, the State demonstrated a common scheme or plan by providing evidence that Hecht committed markedly similar acts ofmisconduct under similar circumstances. The similarities between Smith's, Marx's, Hesketh's, and Pfeiffer's accounts are 

### 25 State v. DeVincentis, 150Wn.2d 11, 17, 74 P.3d 119 (2003) (quoting State v. Lough, 125 Wn.2d 847, 852, 889 P.2d 487 (1995)). 

### 26 State v. Carleton. 82Wn. App. 680, 683, 919 P.2d 128 (1996) (quoting Lough. 125Wn.2dat852). 27 DeVincentis, 150 Wn.2d at 17. 

### 28 See 5 Karl B.Tegland, Washington Practice: Evidence: Lawand Practice § 404.20 n.13, at 541 (5th ed. 2007) (citing State v. Krause. 82 Wn. App. 688, 919 P.2d 123 (1996) (holding the key distinction under Rule 404(b) is between "evidence of a disposition," barred by the rule, and "evidence of a design," allowed by the rule)). 

### 29150Wn.2d 11, 17, 74 P.3d 119(2003).No. 71059-1-1/10 abundant. Each witness described Hechtfrequenting a specific area ofdowntown Tacoma where male prostitutes were known to meet customers. Each testified that Hecht would drive through the same small area in the late afternoon or early evening, several days a week, over years. Each testified that Hecht picked up individuals in this

area on repeated occasions, drove them to his office, engaged in similar sex acts, drove them back to where he picked them up, and paid them in cash as he dropped them off. In addition, each testified that they were homeless and drug-addicted, relying on the cash from prostitution to buy drugs. The trial court's determination that these events 

### were proved by a preponderance of the evidence is amply supported bythe record. The trial court's ruling to admit Smith's and Marx's testimony was based on 

### tenable grounds and careful consideration of the evidence. Contrary to Hecht's assertions, there were marked similarities between his prior misconduct and the 

### charged count ofprostitution, demonstrating a commonscheme or plan. Moreover, Hecht's common scheme and plan to solicit prostitutes in downtown Tacoma was 

### probative as to whether Hecht's payments to Pfeifferwere forprostitution rather than 

### gifts Hecht claimed he gave as a "grandfatherfigure." Thetrial courtensured that the prosecutor used the evidence only for the permissible purpose ofarguing against the defense theory by demonstrating a recurring scheme or plan. Hecht was not unfairly prejudiced by the admission of Marx's and Smith's 

### testimony. The trial court repeatedly cautioned the jury that its consideration of the 

### testimonywas limited to the issue of a commonscheme or plan. Jurors are presumed 

### tofollow the court's limiting instructions.30 And although thetestimony concerned illegal

30 Lough. 125Wn.2dat864.
10No. 71059-1-1/11 

### acts, jurors were repeatedlyinstructed not to consider the evidence as proofofHecht's criminal propensity. The trial court did not abuse its discretion in admitting Marx's and Smith's 

### testimony about their encounters with Hecht. Jury Instructions Hecht contends his conviction must be reversed because the State failed to set forth the element of a true threat inthe information and to-convict instruction defining 

### the offense offelony harassment. Consistentwith Hecht's concession at oral argument, 

## this issue is controlled byourSupremeCourt's recentdecision in Statev. Allen.31 In Allen, the court held that the true threat is not an essential element requiredin 

### eithertheinformation ortheto-convictjury instruction.32 Acharging documentalleging 

### felony harassmentis sufficientifit alleges thatthe defendantknowingly threatened the victim.33 And thejury instructions for felony harassment are sufficient ifthejury instructions contain thedefinition of"true threat."34 Here, theamended information 

### alleged that Hecht knowingly threatened tokill Hesketh, and thejury instructions contained the definition of"true threat." Hechtfails to demonstrate any basis for reliefin light of Allen.

31 176Wn.2d 611, 294 P.3d 679 (2013). 

### 32 id at 630. 

### 33 id at 627. 34 Id at 627-28. A "true threat" is "'a statement made in a context or under such 

### circumstances wherein a reasonable personwould foresee that the statementwould be 

## interpreted

... as aserious expression ofintention to inflictbodily harm upon orto take thelife' ofanotherperson." Id at626 (alteration in original) (quoting Statev. Kilburn, 151 Wn.2d 36, 43, 84 P.3d 1215 (2004)). 11No. 71059-1-1/12 Sufficiency ofEvidence Hecht argues that the evidence was insufficient to support his harassment conviction because itfailed to support any inference that Hesketh had a reasonable fear that Hecht would carry out his threat, or that Hecht could have foreseen that Hesketh might view his statements as a true threat. "Aclaim of insufficiency admits the truth ofthe State's evidence and all 

### inferences thatreasonably can bedrawn therefrom."35 Theevidence isreviewed in the light most favorable to the State to determine whether any rational trier offact could 

### havefound the essential elements ofthecrime beyond a reasonabledoubt.36 The 

### appellate courtwill not reassess credibility.37 Taking the evidence ofrecord inthe light most favorable to the State, the evidence amply supports the inferences that Hesketh was afraid, that Hecht could foresee that Hesketh would consider the threat to be a true threat, and that the threat

was a true threat. Sufficient evidence supports the elements offelony harassment. Statement ofAdditional Grounds Finally, Hecht argues in his statement of additional grounds that his participation inthe ongoing Commission of Judicial Conduct proceedings effected a violation of his rightagainst self-incrimination and his right to prepare a defense and not disclose his 

### attorney's work product. Butevidence outside the trial record is not properly considered



### 35 State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). 36 State v. Joy. 121 Wn.2d 333, 338, 851 P.2d 654 (1993). 37 State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
12No. 71059-1-1/13 in this direct appeal. Typically, such information would be reviewed as part of a 

### personal restraint proceeding.38 Hecht's arguments all depend on matters outside of the trial record on appeal, regardless of Hecht's attachment of such materials to his statement of additional grounds. Hecht's challenges to the adequacy of his defense counsel's performance are also without merit. Many of Hecht's allegations concern matters outside the trial record. Other issues are treated only in passing, without citation to authority. The record on appeal is wholly inadequate to permit resolution of these issues. CONCLUSION Because of prosecutorial misconduct, the convictions are reversed and
remanded for a new trial.

WE CONCUR: 

## *U-adK C^ 

# 0

38 State v. Bugai. 30Wn. App. 156, 158,632 P.2d 917 (1981); State v. King. 24 Wn. App. 495, 505, 601 P.2d 982 (1979).

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