### FILED 

## COURT OF APPEAL DIVISION 1l 2015 

### FEB I 0 

### AM 8: IN 

### THE COURT OF APPEALS OF THE STATE OF WASHINGT

# 1 \\\ 

# Falk, HMG

STATE OF WASHINGTON, DIVISION II
Respondent,

v. RAYMOND SAMUEL REYNOLDSON, Appellant. No. 44710 - 0 -II

UNPUBLISHED OPINION

WoRSwIcK, J. — Following the State' s successful appeal ofan order granting a new trial, 

### the trial court sentenced Raymond Reynoldson on his convictions for first degree kidnapping with sexual motivation,1 first degree attempted rape,2 and second degree assaultwith sexual 

### motivation.3 Reynoldson now appeals, arguing that (1) thetrial courtviolated his publictrial rights by holding a sidebar 

### during the State' s closing argument, (2) the prosecutor committed
misconduct 

### by vouching, (

### 3) trial counsel provided ineffective assistance by failing to objectto 

### thatvouching, and (4)jurors committed misconduct by considering extraneous information of Reynoldson' s prior convictions. We hold that Reynoldson has failed to establish a public trial 

### rightviolation, has waived his vouching claim, and has failed to meet his burden to show either ineffective assistance of counsel orjuror misconduct. Accordingly,we affirm.

1 Former RCW 9A.40. 020 ( 1975); former RCW 9.94A.030(37) ( 1999). 2 RCW 9A.44.045; former RCW 9A.28.020 ( 1994).
3 RCW 9A.36.021( 1)( f); former RCW 9. 94A.030(37).No. 44710 - 0 -II

FACTS A. 

### The Facts Established by Testimony

1. 

### DGM's Testimony ofthe Night ofthe Crime DGM4 testified that in 2000, Raymond Reynoldson approached her at a restaurant and solicited oral sex and vaginal intercourse from her in exchange for money. DGM agreed, and Reynoldson and DGM went to Reynoldson' s house in his vehicle.

Reynoldson parked the vehicle behind the house. DGM and Reynoldson walked around the house, entered through the house' s front door, and went to Reynoldson' s bedroom. Inside 

### the bedroom, Reynoldson unsuccessfully attempted to perform vaginal intercourse with DGM. Then, Reynoldson, against DGM's will,forcefully flipped her over on her stomach, ripped off her shirt and bra, bound her hands behind her backwith her bra,tied her feet up with her socks, 

### gagged her mouth with abandana secured by a socktied around her head, and twisted her nipples. Reynoldson again attempted to penetrate her, but failed.

Reynoldson then left the bed and walked out ofthe room. While Reynoldson was 

### walking around the house, DGM managedto untie herfeet. Still naked, andwith herarms and mouth bound, DGMjumped out ofa closed window bybreaking the glass with the force ofher 

### body. DGM testified she felt she hadtojump out ofthe closed windowbecause she was afraid ofbeing killed ortortured.

4 This opinion uses initials to protect the victim' s privacy.No. 44710 - 0 -II 

### Reynoldson, who was also naked,jumped out ofthe window and began punching DGM 

### and attempting to drag her . backto the house. A nearby neighbor, Deborah Tarnecki, ran overto help DGM. This act caused Reynoldson to flee around the house. DGM testified: " Thank God 

### the neighbors across the streetwere having a party. They heard the crash, the window crash." Verbatim Report of Proceedings (VRP) at 764; see also VRP at 765 ( DGM testifying: "[ T] hank 

### God the neighbors were having aparty. ").

2. 

### Tarnecki's Testimony ofthe Night ofthe Crime Tarnecki testified she was in her home when she heard glass break, and exited her home to investigate. Tarnecki saw DGM outside ofthe window, naked, in a fetal position, with her 

### mouth gagged and hands tied. She saw Reynoldson on top of DGM, attempting to drag her back 

### into the house. While Reynoldson was attempting to drag DGM backto the house, she was clinging to the grass and making muffled screams through the gag. 5 When Tarnecki ran over to DGM, Reynoldson ran into the house. Tarnecki took DGM 

### backto her nearby home. DGM wasterrified, and in a state ofsuch extreme shockthat she could not walk without assistance. DGM related to Tarnecki that 

### Reynoldson] was going to getaknife and finish heroff. She said, he wastorturing me, twisting my nipples. She said, I was in so much pain. She said that she heard 

### the knivesjingling in the kitchen,so she knewthat shewas goingto die. She knew that she had to

### jump out that window for her life. She kept saying over and over, 

### hewas goingto kill me. He is goingto kill me. She thoughtthat hewas still going to come after her because she was so scared. He had been torture raping her. VRP at 920. Tarnecki called 911. 

### 5 Tarnecki identified the manthat she saw attempting to drag DGM back into the house as Reynoldson. But Tarnecki also testified that "[ Reynoldson] does not look the same at all [as] what he looked [like around the time of the crime], but I can see the resemblance." VRP at 903.
3No. 44710 - 0 -II



### 3. Detective Kimberly Sheskey's Testimony ofHer Investigation Detective Kimberly Sheskey responded to the 911 call and met DGM at.Tarnecki' s 

### home. Detective Sheskey testified that DGM was visibly upset and had a socktied around her neck. Detective Sheskey wentwith DGM to the hospital, where medical professionals examined DGM and forensics technicians took photographs ofher injuries. Detective Sheskey was present for this, and stated in her police report that DGM had " cuts, scratches, [ and] bruises on her face, legs, arms, and back." VRP at 831. At the hospital on the night ofthe crime, DGM made statements to Detective Sheskey 

### that were inconsistent with hertrial testimony, including statements that DGM met Reynoldson 

### while hitchhiking for a ride to the Tacoma Dome, that Reynoldson took an unexpected detourto the house, that Reynoldson twisted her arm behind her back immediately upon exiting 

### Reynoldson's vehicle, that they entered the house through the back door, and that Reynoldson threw DGM down on the bed. At trial, DGM testified that these inconsistent statements were 

### lies that she told Detective Sheskey because she was afraid ofbeing arrested for prostitution. 

### After DGM' s exam, Sheskey searched Reynoldson' s house and found a condom in the bedroom. At trial, the parties stipulated that Reynoldson' s DNA (deoxyribonucleic acid) was on the condom' s interior and that DGM' s DNA was on the condom' s exterior.

4. 

### Tonya Bloomstine 's Testimony ofHer Medical Examination Nurse Tonya Bloomstine was one ofthe medical professionals who examined DGM on the night ofthe crime. Bloomstine testified that a physical exam confirmed that DGM had multiple abrasions and contusions to her lower back, mid - back, and extremities. DGM was

4No. 44710 - 0 -II 

### tearful and crying during the exam. DGM told Bloomstine thather arms, legs, and mouth had been bound and that she had been sexually assaulted. 5. DGM's Testimony as to Her Injuries 

### DGM provided further testimony describing the injuries she suffered from the crime. 

### DGM's testimonywas supported bythe forensictechnicians' pictures ofher injuries. The evidence showed that Reynoldson bruised DGM's eye and face by punching her, bruised her 

### neckby choking her, scratched her by attempting to drag herback into thehouse after she had jumped out ofthe window, and bruised her wrists by binding her. B. Reynoldson' s Extradition, Charges, and Trial Reynoldson left Washington State after the crime in 2000 and the State could not find him again until 2005, when the State discovered he was incarcerated in Oregon on unrelated charges. In 2006, the State charged Reynoldson with first degree kidnapping with sexual motivation, first degree attempted rape, and second degree assault with sexual motivation. But because the State was unable to extradite Reynoldson until 2009, he was not tried until 2010. The trial court granted the State' s motion to exclude witnesses from the courtroom. The 

### State elicited the testimony discussed above. Reynoldson rested without presenting any testimony. C. 

### The State' s ClosingArgument

1. Sidebar 

### In the middle ofthe State' s closing argument,the State requested and was granted a sidebar. The actual sidebar was not transcribed:

5No: 44710 - 0 -II

The State]: Your Honor, can I address the court forjust a moment? Trial Court]: At sidebar? The State] : Yes. Trial Court] :

### Okay.

Sidebar) Trial Court]: Okay, Ms. Ahrens, please continue. The State to the Jury]: 

### As I' mtalking, ladies and gentlemen, I want youto feel free to,just like throughout the trial, that ifyou feel like you may be nodding offor if 

### you are uncomfortable, you get up and move around and stretch your legs, ifyou need to. I have a lot to talk about. I don' t want to bore you, but there are things that I want to make sure that I want to cover. Iffor some reason you need to kind ofjolt your bodies, please feel free to do that. VRP at 1053. 2. Alleged Vouching 

### In its closing argument,the State made the following comments that Reynoldson alleges constituted vouching: 

### 1] You were paying attention to what each ofthese witnesses testified to. I would like to go back through at least we are all on the same page on what it is that the State believes that the information that was elicited from these witnesses. 2] He tries to pull her back into the house. And thank God for the neighbor Deborah Tarnecki. Deborah told you that she was seated in her home. She was 

### with her family. They heard this glassbreaking. 3] When she went in, she told those detectives exactly what it is that she told you. 

### She didn't keep along with that storythat she initiallytold Officer Sheskey about how it was that she and the defendant made contact. She told the truth. 

### 4] She told the truth as she told you the events that took place on that day while she was seated in that box for you to be able to witness and see how her demeanor as she described those events to you. 5] So the defendant is guilty — we believe that we have proven each of these elements beyond a reasonable doubt. At a minimum the rape in the — the AttemptedNo. 44710 - 0 -II
Rape in the Third Degree, but we believe that we have proven the Attempted Rape in the First Degree. 6] You take that information and decide whether or not you think these people are credible. Are they believable people? Does this make sense? Does it fit the elements ofthe crimes that are charged. Once you do, we believe that you should be or should have an abiding belief in the truth of the charge. You should be satisfied beyond a reasonable doubt as to the offenses charged against the defendant. 7] What I would submit to you is that when Donna testified to you, she was honest. She told you about her lifestyle then. She told you about her life now, howthat has changed. 

### She told you that she initially lied and why she lied. She told you what she had agreed upon with the defendant even though it is, clearly, embarrassing for her to tell you that. 

### 8] You heard from Officer Sheskey. Officer Sheskey told you, look, I don't recall everything that happened in this case. She needed her report to refresh her 

### recollection about a lot ofthings thathappened. She didn'tget up there andtry to make up things. She got up there and looked honest. She tried to lookthrough her report to answer any questions that were asked of her about the evidence that was found there. 9] You heard from Tonya Bloomstine, who treated [ DGM]; from Brett Reynoldson, who was a bit reluctantto tell you that his fatherwas actually staying in the home, but did; former Detective Ed Baker came in to talk to you; and you also heard from Detective Miller about his actions. Each one of these people 

### provided you with the information that they had so that you can make a decision. 

### These are crediblepeople. Thetestimonythatthey gave is in linewiththe evidence that you have —has been submitted to you. VRP at 1044, 1056, 1063, 1064, 1084, 1088 - 91 ( emphasis added). In its rebuttal to 

### Reynoldson' s closing,the State statedthe following:

10] [ DGM] can be believed. She told you that she lied. She came in here and told 

### you that. She told you the reasons why. She told you that she was ashamed. She told you to the best ofher ability her memory,what it was that took place. 

### 11] She told you what she did and what she didn't do that day. Shejust left it up to you to decide what happened. She didn't come in here with any false pretenses. She toldyou like it was.

7No. 44710 - 0 -II

VRP at 1123 -25 ( emphasis added). Ofthese eleven comments, trial counsel objected to only comment [3], 

### objecting that the prosecutor was commenting on matters not in evidence, rather 

### than vouching. The trial court overruled trial counsel' s objection, stating:

Well, the jury has been instructed that the lawyers' remarks, statements, and arguments are not the evidence and not the law. 

### They are the deciders of that. I will let them make that decision. VRP at 1063 -64. D. 

### Conviction,Juror'sAllegations ofJury Misconduct, and Order Granting a New Trial 

### Thejuryfound Reynoldson guilty offirst degree kidnapping,first degree attempted rape, and second degree assault. By special verdict form,thejuryfound that Reynoldson committed 

### first degree kidnapping and second degree assault with sexual motivation. Thejury was polled and eachjuror affirmed that he or she agreed with the verdict, and thatthe verdict was thejury' s unanimous decision. 

### After the verdict, one ofthejurors filed an affidavit alleging many irregularities in the 

### juryverdict process, including the following: There was discussion between several jurors who opined about how many other 

### times Mr. Reynoldson may have donethis and gotten awaywith it. There also was reference to the necessity of his 

### being locked up. 6 

### When thejury was polled I lied when I affirmed my "guilty" vote because I was convinced thatthejudge would send us all back into that room together and I would be subjected to further verbal abuse and ridicule. 

### 6 Reynoldson' s criminal history included four prior convictions, including two priorsecond degree rape (former RCW 9A.44.050 ( 1997)) convictions and one prior second degree kidnapping (former RCW 9A.40.030 ( 1975)) conviction. These offenses were not mentioned to the

### jury during trial.No. 44710 - 0 -II

Clerk' s Papers (CP) at 342. 

### Based on this affidavit, Reynoldson moved for a newtrial, arguing that he was deprived 

### ofhis righttojuror unanimity becausethe averringjurordid not actually agree with thejury's verdict, and because thejurors committed misconduct by erroneously considering extrinsic evidence. The trial court entered an order granting a mistrial, ruling that the verdict was not 

### unanimous because thejuror committed misconduct by lying when polled bythe trial court. The trial court' s order did not address whetherthejurors committed misconduct by considering
extrinsic evidence. E. 

### Appeal,Reversal ofOrder Granting a New Trial,Reinstatement ofVerdict,and Sentencing The State appealed the trial court' s order granting a newtrial and we reversed that order in State v. Reynoldson, 168 Wn.App. 543, 545, 277 P. 3d 700 ( 2012). When deciding Reynoldson, we first discussed the scope of our review: Here, the trial court found that the juror committed misconduct when she lied 

### during thejury poll. As Reynoldson notes, the trial court did not make findings of fact on or rule on any other aspect of the juror' s declaration. Therefore, the sole 

### question before us iswhetherwe mayconsiderthejuror'sstatements inheraffidavit that she lied when she was polled. Reynoldson, 168 Wn. App. at 548 ( internal citations omitted). We then reversed the trial court 

### on this narrow issue, holding courts cannot consider ajuror's statements that she lied when polled because such statements go to the reasoning behind hervote to convict which "clearly inheres in the verdict and is not subject to the trial court' s later review." 168 Wn. App. at 552. 

### We did not considerwhetherthejury committed misconduct by considering extrinsic evidence.

9No. 44710 - 0 -II


### Thetrial court reinstatedthejury's verdict without considering the other issues in Reynoldson' s original motion for a new trial. The trial court imposed a sentence of life imprisonment without the possibility ofparole pursuant to the persistent offender accountability act.7 Reynoldson appeals. ANALYSIS I. PUBLIC TRIAL RIGHT Reynoldson argues the sidebar conference during the prosecutor' s closing argument violated his public trial right. We disagree. Whether a violation ofthe public trial right has occurred is a question of law we review de novo. State v. Smith, 181 Wn.2d. 508, 513, 334 P. 3d 1049 ( 2014). Our state constitution and the United States Constitution guarantee both criminal defendants and the public the right to
open and public trials. U.S. CONST. amend. VI; WASH. CONST. art. I, §§ 10, 22. When analyzing whether a public trial right violation occurred, we now employ athree - 

### step framework adopted in Smith, which asks:

1) Does the proceeding at.issue implicate the public trial right? (2) If so, was the 

### proceeding closed?And (3) Ifso, was the closurejustified? 181 Wn.2d at 521. 

### Where we hold the answer to the first step' s question is negative, we need

not reach the subsequent steps. 181 Wn.2d at 519.

In Smith, our Supreme Court held that under the first step, " reasonable and traditional"
sidebars do not implicate the public trial right. 181 Wn.2d at 521. And the court cautioned:
7 Former RCW 9.94A. 120 ( 1999).

10No. 44710 - 0 -I1
M] erely characterizing something as a " sidebar" does not make it so. To avoid 

### implicating the public trial right, sidebars must be limited in content to their traditional subject areas, should be done only to avoid disrupting the flow oftrial, 

### and must either be on the record orbe promptly memorialized in the record. 181 Wn.2d at 516 n. 10. 

### Here,the conversation at sidebar, occurring in the middle ofthe prosecutor' s closing argument, was not memorialized in the record.8 The record reveals thatthe prosecutor requested

a sidebar for "just a moment," the request was granted, a sidebar occurred, and the prosecutor 

### then asked thejuryto maintain their concentration during his closing argument. See VRP at 1053. This appears to be the State' s response to ajuror' s inattentiveness. 

### The sidebar at issue here was clearly done to avoid disrupting the flow oftrial, and although neither conducted nor memorialized on the record, appears to be limited to a traditional 

### area: seeking the trial court's assistance in maintainingjuror attentiveness during closing arguments. We hold that a sidebar ofthe type conducted here did not implicate Reynoldson' s 

### publictrial right. Because the answerto the first step' s question is negative, we do not consider the other two steps. 181 Wn.2d at 519. II. PROSECUTORIAL MISCONDUCT: VOUCHING 

### We next consider Reynoldson' s argument thatthe prosecutor committed misconduct by 

### vouching. Reynoldson failed to preservethis argument for review.

8 We note thatto raise a public trial right claim for the first time on appeal, a defendant bears the 

### burden ofestablishing a manifest error by providing a record showing that a closure occurred. State v. Koss, 181 Wn.2d 493, 502 - 03, 334 P. 3d 1042 ( 2014); see RAP 2. 5( a)( 3). Because the sidebar was not memorialized, Reynoldson failed to provide a record showing that a closure occurred in this case. See Koss, 181 Wn.2d at 502 -03.
11No. 44710 - 0 -II 

### Prosecuting attorneys are quasi-judicial officers charged with the duty ofensuring that a defendant receives afairtrial. State v. Boehning, 127 Wn.App. 511, 518, 111 P.3d 899 (2005). Prosecutorial misconduct violates that duty and can constitute reversible error. State v. Davenport, 100 Wn.2d 757, 762, 675 P . 2d 1213 ( 1984); see Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 ( 1982). 

### A prosecutor commits misconduct by personally 

### vouching forawitness' s credibility. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 ( 1995). We will reverse a conviction when the defendant has met his burden ofestablishing (1) the State 

### acted improperly and (2) the State' s improper act prejudiced the defendant. State v. Emery, 174 Wn.2d 741, 756, 278 P. 3d 653 ( 2012). But a defendant who fails to object to the State' s improper act at trial waives any error, unless the act was so flagrant and ill-intentioned that an instruction could not have cured the resulting prejudice. State v. Thorgerson, 172 Wn.2d 438, 443, 258 P. 3d 43 ( 2011). In making that determination, we " focus less on whetherthe prosecutor' s misconduct was flagrant or ill - intentioned and more on whether the resulting prejudice could have been cured." 

### Emery, 174 Wn.2d at 762. Here, Reynoldson objected to only one ofthe statements, asserting the prosecutor 

### argued facts not in evidence. He did not lodge any objection based on the rule againstvouching. 

### Because Reynoldson did not objectto anyvouching, and because we focus on whetherthe 

### resulting prejudice could have been cured,we considerwhatwould have happened had Reynoldson objected to vouching. See 174 Wn.2d at 762 - 63. Here, had Reynoldson objected to the prosecutor's vouching, the trial court could have 

### cured anyprejudice resulting from the prosecutor's statements by giving thejury an instruction

12No. 44710 - 0 -II 

### directing them to disregardthe prosecutor' s remarks as to the witnesses' credibility. See In re Det.ofMcGary, 175 Wn.App. 328, 343, 306 P.3d 1005, review denied, 178 Wn.2d 1020 (2013); State v. Eastabrook, 58 Wn.App. 805, 817, 795 P.2d 151 ( 1990). Thus, because the resulting prejudice could have been cured had he objected, Reynoldson waived his claim that the State 

### violated his rightto afair trial byvouching forthe witnesses. See Thorgerson, 172 Wn.2d at 443. III. INEFFECTIVE ASSISTANCE OF COUNSEL

Reynoldson argues that he received ineffective assistance of counsel when trial counsel 

### failed to objectto the State' s vouching. We disagree. Whether a defendant received ineffective assistance of counsel is a mixed question of law 

### and fact, reviewed de novo. In re Pers. Restraint ofFleming, 142 Wn.2d 853, 865, 16 P.3d 610 2001). 

### In reviewing claims ofineffective assistance, we begin with a strong presumption of counsel' s effectiveness. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 ( 1995). To establish ineffective assistance ofcounsel, a defendant must satisfy the two-pronged test announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984). State v. Thomas, 109 Wn.2d 222, 225 -26, 743 P.2d 816 ( 1987). First, the defendant 

### must show that counsel' s performance was deficient, meaning that it fell below an objective
standard of reasonableness under all circumstances. 109 Wn.2d at 225 - 26. Ifthe defendant bases his ineffective assistance of counsel claim on trial counsel' s failure to object, the defendant 

### must showthatthe objection would likely have succeeded. State v. Gerdts, 136 Wn.App. 720, 727, 150 P. 3d 627 (2007).

13No. 44710 - 0 -II
Second, the defendant must show the deficient performance prejudiced the defendant' s

case. 

### Thomas, 109 Wn.2d at 225 - 26. Prejudice occurs if,taking all circumstances into account, 

### there is a reasonable probabilitythatthe result ofthe proceeding would have been different if that deficient performance had not occurred. 109 Wn.2d at 226. " 

### A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. A 

### failure to satisfy either prong is fatal to an ineffective assistance ofcounsel claim. 466 U.S. at 700. As discussed below, six ofthe prosecutor' s statements were not vouching, and the 

### remaining six statements caused Reynoldson no prejudice. Trial counsel was not deficientfor

not objecting to statements [ 1], [ 2], [ 5], [ 7], and [ 10] because an objection to these statements
would not have succeeded, and statements [ 3], [ 4], [ 6], [ 8], [ 9], and [ 11] did not cause prejudice 

### because, taking all circumstances into account, trial counsel' s failure to objectto these statements does not undermine confidence in the outcome of Reynoldson' s trial. A. Statements [ 1], [ 21 [ 5], [ 71 and [ 10]: No Deficiency 

### Whether awitness has testified truthfully is forthejuryto determine. State v. Ish, 170 Wn.2d 189, 196, 241 P. 3d 389 (2010) ( plurality opinion) (

### citing UnitedStates v. Brooks, 508 F.3d 1205, 1210 ( 9th Cir. 2007)). " 

### It is improper for a prosecutor personally to vouch forthe credibility of a witness." Brett, 126 Wn.2d at 175. 

### Impropervouching generally occurs ifthe 

### prosecutor expresses her personal beliefas to the witness' s credibility or indicates that evidence 

### not presented attrial supports the witness' s testimony. Thorgerson, 172 Wn.2d at 443.

14No. 44710 - 0 -II


### Butthe prosecutor "has wide latitude in closing argumentto draw reasonable inferences from the evidence and may 

### freely comment on witness credibility based on the evidence." State

v. Lewis, 156 Wn.App. 230, 240, 233 P.3d 891 ( 2010). The prosecutor has especially wide latitude when rebutting an issue the defendant raised in closing argument. 156 Wn.App. at 240. 

### Accordingly, closing argument does not constitute impropervouching forwitness credibility unless it is clearthatthe prosecutor is not arguing an inference from the evidence but, instead, is 

### expressing apersonal opinion aboutwitness credibility. State v. Warren, 165 Wn.2d 17, 30, 195 P. 3d 940 (2008). Trial counsel was not deficient for 

### failing to object to statements [ 1], [ 2], [ 5], 7], 

### and [ 10] because they did not constitute vouching. 

### 1] You were paying attention to what each ofthese witnesses testified to. I would like to go back through at least we are all on the same page on what it is that the State believes that the information that was elicited from these witnesses. VRP at 1044 ( emphasis added). 

### In this statement, the State informed thejurythat itwas aboutto state the information that it believed the witnesses had provided. This was not expressing a 

### personal opinion about a witness' s credibility, but ratherwas arguingthatthejury may infer certain information from the witnesses' testimony. Thus, because the prosecutor was not 

### expressing apersonal opinion aboutwitness credibility, statement [1] was not vouching.

2] He tries to pull her back into the house. And thank God for the neighbor Deborah Tarnecki. Deborah told you that she was seated in her home. She was 

### with her family. They heard this glass breaking. VRP at 1056 ( emphasis added). 

### In this statement, the prosecutor was referencing DGM' s 

### testimony, inwhich she thanked God thatneighborswere presentto assist her aftershe had thrown herselfthrough a window. This was not a statement of personal opinion as to DGM' s or

15No. 44710 - 0 -II 

### Tarnecki's credibility, but ratherwas areference to DGM'stestimony attrial. Because the prosecutor was not expressing a personal opinion about witness credibility, the statement was not vouching.

5] So the defendant is guilty — we believe that we have proven each of these elements beyond a reasonable doubt. At a minimum the rape in the — the Attempted Rape in the Third Degree, but we believe that we have proven the Attempted Rape in the First Degree. VRP at 1084 ( emphasis added). In this statement, the prosecutor was not expressing a personal 

### opinion as to the credibility ofawitness. Rather, the prosecutorwas arguing thatthejury could infer the State had met its burden to prove the crime beyond a reasonable doubt from the evidence. Thus, because the prosecutor was not expressing a personal opinion about witness credibility, statement [5] was notvouching.

7] What I would submitto you is thatwhen [DGM] testifiedtoyou,she was honest. She told you about her lifestyle then. She told you about her life now, how that has changed. She told you that she initially lied and why she lied. She told you what 

### she had agreed upon with the defendant eventhough it is, clearly, embarrassing for her to tell you that. VRP at 10.

89 ( emphasis added). In this statement, the prosecutor stated that she submitted to the 

### jurythat DGM was honestwhen she testified to thejury. This is notthe prosecutor's personal opinion as to thewitness' s credibility, but rather an argumentthatthejury could infer DGM's' credibility from DGM' s testimony. Thus, because the prosecutor was not expressing a personal opinion about witness credibility, statement [7] was not vouching.

10] [ DGM] can be believed. She told you that she lied. She came in here and told you that. She told you the reasons why. She told you that she was ashamed. She 

### told you to the best ofher ability her memory, what it was that took place.

16No. 44710 - 0 -II

VRP at 1056 ( emphasis added). In this statement, the prosecutor did not state a personal opinion 

### that DGM must be believed, but rather argued that thejury could infer DGM' s believability from DGM' s testimony. Thus, because the prosecutor was not expressing a personal opinion about witness credibility, statement [ 10] was not vouching.

Because statements [ 1], [ 2], [ 5], [ 7], 

### and [ 10] did not constitute vouching,they did not 

### constitute prosecutorial misconduct. Thus, any objection trial counsel may have made to the State' s comment would not have succeeded, and trial counsel' s performance was not deficient. 

### Accordingly, Reynoldson has failed to meet his burden to show ineffective assistance ofcounsel regarding these statements. B. Statements [ 31 [ 4], [ 6], [ 81 [ 9], and [ 11]: No Prejudice

We assume without deciding that trial counsel' s failure to object to statements [ 3], [ 4], 6], [ 8], [ 9], 

### and [ 11] constituted deficient performance. The State arguably vouched forthe 

### credibility ofwitnesses, as well as forthe truth ofthe charges. In fact,statements [ 8] and [9] 

### plainly were improper vouching. Buttaking all circumstances and evidence into account, Reynoldson cannot establish prejudice because this deficiency was not sufficient to undermine confidence in the outcome ofhis trial. 

### The parties stipulated thatthe condom found atthe house shortly afterthe crime had Reynoldson' s DNA on the interior and DGM' s DNA on the exterior. This establishes that Reynoldson and DGM were together in the bedroom.

17No. 44710 - 0 -II
DGM testified that while her hands were still tied behind her back and her mouth was 

### still gagged, shejumped through a closed window, breaking the glass. DGM testified that 

### Reynoldsonjumped out ofthe window after her, punched her, and attempted to drag her back into the house against herwill. DGM's testimony is supported by Tarnecki' s testimony. Tarnecki testified that she heard the glass break, ran outside ofher home, and saw DGM outside ofthe window, naked, in a fetal position, with her mouth gagged and her hands tied. Tarnecki testified that she saw Reynoldson attempt to grab DGM and force her back into the house, and that DGM was outside the window, giving muffled screams through the gag and clinging to the 

### grass to prevent Reynoldson from dragging her back into the house. DGM described her injuries in detail, including scratches and bruises Reynoldson caused 

### her. This testimony is supported by forensic technicians' photographs ofthose injuries, as well as the testimony ofDetective Sheskey and Bloomstine. DGM testified she felt she had tojump out ofthe closed window because she was afraid ofbeing killed ortortured. DGM' s mental state was supported by Tarnecki, Bloomstine, and Detective Sheskey, who all testified that DGM was emotionally upset afterthe alleged crime. 

### Tarnecki testified to DGM' s fears that Reynoldson was going to assault and rape her. Bloomstine and Tarnecki both testified that DGM claimed to have been sexually assaulted shortly after the crime. 

### Taking all circumstances into account, counsel' s failure to object does not undermine confidence in the outcome ofReynoldson' s trial. Thus, because Reynoldson has failed to

18No. 44710 - 0 -II
establish prejudice with these statements, he has failed to establish ineffective assistance of
counsel. IV. JUROR MISCONDUCT 

### Reynoldson arguesthatthejurycommitted misconduct by considering extrinsic evidence ofhis prior convictions. The State argues that the law ofthe case doctrine precludes 

### consideration of Reynoldson's argument because we have already held that the trial court erred 

### by granting a mistrial based onjury misconduct. The law ofthe case doctrine does not preclude consideration of Reynoldson' s claim, but Reynoldson has failed to meet his burden ofshowing juror misconduct. A. 

### Law ofthe Case Doctrine 

### Under the law ofthe case doctrine, we generally adhere to decisions declaring the applicable law in previous appeals ofthe same case, and refuse to consider issues that were decided, or could have been decided if raised, in a prior appeal. RAP 2. 5( c)( 2); Folsom v. 

### County ofSpokane, 111 Wn.2d 256, 263, 759 P.2d 1196 ( 1988). 

### In Reynoldson,the only question before us was whether courts could consider ajuror's
statement in her affidavit that she lied when polled. 

### 168 Wn.App. at 544. We held that because 

### thisjuror's statement necessarily wentto thejuror's mental processes leading to her decision,
courts could not consider it. 

### 168 Wn.App. at 544. 

### Reynoldson now argues thatthejury considered extrinsic evidence. Because this argument raises an issue concerning the possible introduction ofextrinsic evidence, ratherthan

19No. 44710 - 0 -II
thejuror's internal mental processes, it raises an issue we did not consider in Reynoldson, and we consider the issue here. B. " Consideration on the Merits 

### Reynoldson argues thatthejury committed misconduct by considering extrinsic evidence 

### ofhis prior convictions in reaching its verdict. We disagree.9 Ajury's consideration ofextrinsic evidence in its deliberations constitutes misconduct and can be grounds for a new trial. State v. Balisok, 123 Wn.2d 114, 118, 866 P.2d 631 ( 1994). Extrinsic evidence is evidence that was not subject to objection, cross - examination, explanation,

or rebuttal at trial. 123 Wn.2d at 118. But "[

### n]either parties norjudges may inquire into the internal processes through which thejury reaches its verdict." State v. Linton, 156 Wn.2d 777, 787, 132 P.3d 127 ( 2006). 

### The party allegingjuror misconduct has the burden to showthat misconduct occurred." State v. Earl, 142 Wn.

### App. 768, 774, 177 P. 3d 132 ( 2008). " A strong, affirmative showing of 

### misconduct is necessary in orderto overcome the policy favoring stable and certain verdicts and the secret, frank and free discussion of the evidence 

### by thejury." Balisok, 123 Wn.2d at 117 -18. 

### Here, thejuror's affidavit stated onlythatthejurors "opined about how many othertimes Mr. Reynoldson may have done this and gotten away with it." CP at 342. This presents


### 9 We generally review atrial court's investigation ofjurormisconduct for abuse ofdiscretion. State v. Earl, 142 Wn. App. 768, 774, 177 P. 3d 132 ( 2008). But here, the trial court did not 

### resolve this issue because it granted a new trial on a different basis. Thus, we reviewthis issue de novo.

20No. 44710 - 0 -II


### evidence that thejurors speculated that Reynoldson may have committed similar offenses in the past, but presents no evidence thatjurors had knowledge ofor considered Reynoldson' s actual 

### past offenses. No other evidence in the record suggests that thejury knew or considered 

### Reynoldson' s actual past offenses. Likewise, we should not inquire into thejury' s internal thought processes. Linton, 156 Wn.2d at 787. Thus, we hold that Reynoldson has failed to meet 

### his burden to showthatjuror misconduct by consideration ofextrinsic evidence actually
occurred. We hold that Reynoldson has failed to establish a public trial right violation, has waived 

### his vouching claim, and has failed to meet his burden to show either ineffective assistance of counsel orjuror misconduct. Accordingly, we affirm. 

### A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports but will instead be filed for public record in accordance with RCW 2. 06.040, it is so ordered.

We concur:

F Jrge A.C.).

Melnick, J , j

21 Worswick, J. 

# Cf