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

JESSE THOMAS FULLER, Appellant. No. 74143-8-1 DIVISION ONE UNPUBLISHED OPINION

FILED: December 27, 2016 

### Appelwick, J. — Fullerappeals his conviction for two counts of rape of a 

### child in thefirst degree. The six yearold victim was a key witness attrial, but her in-court testimony was difficult to hear. Fuller argues that the trial court erred by 

### allowing atranscriptofthevictim's testimonyto beread tothejury. He alsoalleges that the prosecutorcommitted misconduct in closing argument. Weaffirm.
FACTS A.M.F. told her mother that her father, Jesse Fuller, had been making her 

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

### At trial, A.M.F. testified about the sexual abuse. The testimonywas difficult 

### to hear, and the prosecutor had to askA.M.F. numerous times to speak up. TheNo. 74143-8-1/2 court provided A.M.F. with a microphone. The court noted that thejurors and the court alike had difficulties hearing her testimony. During deliberations, the jury asked, "Can we get a copy of the transcript of [A.M.F.j's testimony because we had a very hard time hearing her." Instead ofproviding the jurywith a copy of the 

### transcript, the trial court ordered a transcript ofA.M.F.'s testimony be read to the jury a single time by a bailifffrom another chambers. 

### The jury found Fuller guilty on two counts of rape of a child in the first degree. Fuller appeals. DISCUSSION 

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

### allowing a transcript of the victim's previous testimony to be read to the jury. 

### Second, he argues that the prosecutor committed misconduct during closing 

### arguments. Finally, heargues thateven ifthesetwo errors do notwarrantreversal on their own, they amount to cumulative error. I. Reading testimony to jury 

### Fullerfirstarguesthatthetrial courterred byordering atranscriptof A.M.F.'s 

### testimony to be read to thejury due to the difficulty in hearing A.M.F.'s original testimony.1 He contendsthatthis overemphasized thechild victim's testimony and denied Fuller the right to a fair and impartial jury.

1The State also admitted as exhibits two videos of A.M.F. Inone video, she tells 

### her mother about Fuller sexually abusing her. The second video is her interview 

### with a child interview specialist. Thejury was permitted to review them in thejury room. But, Fuller has not alleged any error regarding the jury's review of those 

### videos in thejury room. Wetherefore limit ouranalysis to only the trial court's decision to have a transcript of A.M.F.'s testimony read to the jury.No. 74143-8-1/3

We will overturn a trial court's decision to allow a jury to review testimony only if we find that the trial court abused its discretion. See State v. Morqensen, 148 Wn. App. 81, 87, 197 P.3d 715 (2008). Reviewing testimony during deliberations is disfavored, and must be weighed against the danger that the jury 

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

### stage of the trial. State v. Koontz, 145 Wn.2d 650, 654, 41 P.3d 475 (2002). But, whether a jury may rehear testimony is dependent on the particular facts and circumstances of a case. ]d. 

### Fuller relies primarily on twoWashingtoncases. First, he relies on Koontz. In that case, our Supreme Court held that replaying video of three witnesses' 

### testimony was reversible error because of the possibility of"undue emphasis" on certain portions oftestimony. \_± at 660-61, 657. TheCourt reasoned thatcourts should balance the needs forreviewing the testimonywith procedural safeguards, 

### such as limiting theamountoftimes thejury canreview thevideo, topreventjuries from overemphasizing theevidence. Id at 657. And, theCourtwas careful tonote 

### that the "unique nature ofvideotaped testimony" madereplaying video for thejury 

### especially concerning, and motivated its decision toreverse. Id, at657, 659-61 Fullerargues that, underKoontz, reading atranscriptto thejury is "apoorer substitute" than reviewing live testimony via video, and therefore reading a 

### transcript should raise greaterconcern than thejury reviewing a video. But, this 

### directly contradicts theKoontz reasoning, "Reviewing videotaped testimony raises 

### greater concerns than reading from a transcript because videotaped testimonyNo. 74143-8-1/4 allows the jury to hear and see more than the factual elements contained in a transcript." lcLat655. 

### Although Koontz establishes that rereading transcribed testimony is less 

### concerning than replaying video, any second presentation of testimony is "disfavored." jU at 654. But, Koontz does not say it is prohibited. SeejU And, in such situations, it is important for the trial court to take "the proper precautions to address the concerns raised in Koontz." Morqensen. 148 Wn. App. at 88-89 

### (holding thattrial court "tooktheproperprecautions," such as inviting authority and 

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

### deciding tohave thetestimony reread, thetrial court specifically reminded thejury that itmust take into account all of the evidence presented, and not just the reread testimony: 

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

### Afterconsulting with the attorneys, Iamgranting your request. 

### In making this decision, Iwant to emphasize that I'm making no comment on the value or weight to be given to any particular 

### testimony in this case. Thetestimony you requestedwill be read to you here in the courtroom. You will hearit only onetime. After you've heard the testimony, you will return to the jury room to resume deliberations. When you - when you do, remember 

### thatyour deliberations must take into account all oftheevidence in the case, notjust the testimony thatyou have asked to rehear.No. 74143-8-1/5 And, it did not grant the jury's initial request to "get a copy of the transcript," but instead took the more careful approach of allowing the transcripts to be read to the jury a single time in open court. The trial court applied the types of protections that Koontz contemplates. Fuller also relies on in State v. Monroe, 107 Wn. App. 637, 27 P.3d 1249 

### (2001). There, a jurywas permitted to read a witness's transcribed testimonywhile 

### in thejury box, but was notallowed to reference the transcriptin deliberations, jd. at 640. The court reversed Monroe's conviction, because the trial court expressed 

### no concern for the possibility of undue emphasis of the testimony, jd. at 645-46. And, the manner of review—review in the jury box—overemphasized that 

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

### thejury in Monroe could review the transcripts atwill in thejury box, but in this case the testimony was read to thejury oncefrom a transcript, jd, at 640. And, the Monroe trial court did not find "any logical basis" for disallowing the jury to 

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

### implemented the safeguards discussed above. jU at 645. Monroe is factually distinct and does not control.2 Fuller also relies on United States v. Binder, 769 F.2d 595 (9th Cir. 1985), overruled on other grounds by United States v. Morales, 108 F.3d 595, 602 (9th
2 The Monroe court based its decision on the Court of Appeals' Koontz 

### decision. Monroe, 107Wn. App. at 643 ("We believe that fState v. IKoontzf, 102 

### Wn. App. 309, 6 P.3d 124 (2000),] should control."). We note that the Supreme Court later reversed the Court ofAppeals' Koontz decision. State v. Koontz, 145 

### Wn.2d 650, 661, 41, P.3d 475 (2002). Because we hold that Monroe is factually 

### distinguishable from theinstantcase, wedecline to addresswhethertheSupreme Court's Koontz decision affected Monroe's validity.No. 74143-8-1/6

Cir. 1985), which Koontz cited favorably. Koontz. 145 Wn.2d at 655. Inthat case the Ninth Circuit held that the trial court abused its discretion by allowing the jury to review videotaped testimony in thejury room. Binder. 769 F.2d at 600-01. The court perceived that replaying the video risked unduly emphasizing that testimony. Id Binder is criticallydifferent than this case: there, thejury was allowed to review the videotaped testimony in the privacy of the jury room. Id But, here, the trial court allowed the transcript to be read to the jury in open court. And, Koontz explicitly notes that replaying video raises greater concern than reading a transcript. Koontz. 145 Wn.2d at 655. Binder is not dispositive. Fuller also argues that the trial court should have given instructions with more detail, such as the jury instructions given in United States v. Montgomery. 

### 150 F.3d 983 (9thCir. 1998),which Koontz citedfavorably. Koontz. 145Wn.2d at 654. In Montgomery, the trial court allowed a jury to review testimony transcripts 

### in thejury room. 150F.3d at 999. Thecourtfound no abuse ofdiscretion because the trial court gave a lengthy instruction that reminded the jury not to emphasize the transcripts over the other evidence: 

### "I want you to bear in mind that the testimony at trial is the evidence, not the transcripts. The transcript is not authoritative. If you remember something different from what appears in the transcripts, 

### your collective recollection is controlling. In other words, the transcripts may notserve as a substitute for the collective memories 

### of the jury or take the place of the assessment of the credibility of witnesses subject to the usual rules. . . . Finally, as the court has 

### previously instructedyou, you must weigh all of the evidence in the case and not focus on any one portion ofthe trial." ]d at 999-1000 (alteration in original).No. 74143-8-1/7

Here the trial court gave a limiting instruction that explicitly reminded the jury that it must consider all evidence, not just the transcripts. Admittedly, it did not make the same admonitions as Montgomery regarding the transcript not being authoritative and regarding reliance on their collective recollections ifdifferentfrom the transcript. But, Fuller has never suggested that the transcript was not an accurate statement ofthe testimony given. It is not clear such an admonition was
necessary. The trial court allowed the transcript to be read aloud only a single time, did not allow the jury to bring a transcript into thejury room, and cautioned the jury to consider all of the evidence. This aligns with the Koontz and Morgensen courts' emphasis on procedural safeguards. Koontz. 145 Wn.2d at 654-55; Morgensen. 

### 148 Wn. App. at 88-89. There is little else that the court could have done in this
case to guard against potential undue emphasis. Forthese reasons, we cannot 

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

an abuse of discretion.

II. Prosecutorial Misconduct 

### Fuller next argues that the prosecutor committed misconduct during his closing argument. The defendant bears the burden of proving that the prosecutor's alleged misconduct was both improper and prejudicial. State v. Emery. 174 Wn.2d 741, 756, 278 P.3d 653 (2012). The burden to establish prejudice requires the 

### defendant to prove that there is a substantial likelihood that the instances of misconduct affected the jury'sverdict. State v. Thorgerson. 172Wn.2d 438, 442-No. 74143-8-1/8 43, 258 P.3d 43 (2011). The failure to object to an improper remark constitutes a waiver of error unless it is so flagrant and ill-intentioned that itcauses an enduring 

### and resulting prejudice that could not have been neutralized by an admonition to thejury. Id at 443. Fullerdid not object to any ofthese statements. His arguments on this issue are therefore waived unless the remarks were flagrant, ill-intentioned, and unable to be cured by a supplemental instruction, jd A. Appeal To Jurors' Passions 

### Fullerfirst argues that the prosecutor committed misconduct bymaking an 

### improper appeal tothejurors' passions. Fullerpoints totheprosecutor asking the 

### juryto "[t]hinkfor a moment aboutthe powerlessness ofthat little girl." He argues this errorwas compounded when the prosecutor elaborated on these statements 

### by analogizing thevictim's willingnessto share herstoryto achildtesting thewater for danger before swimming in unknown waters. By theprosecutor's analogy, as the victim became more comfortable, she began to share more, which explained 

### thechild victim's inconsistentwillingness to share herstory. In response, the State 

### contendsthattheprosecutor's commentswerenotanimproperappealtoemotion, but rather inferences "reasonably drawn from the evidence." 

### Aprosecutor may not appeal to thepassions ofthejury so as toencourage a verdictbased on emotion rather than evidence. State v. Berube, 171 Wn. App. 

### 103, 118-19, 286 P.3d 402 (2012). This court reviews a prosecutor's allegedly 

### improperremarks inthe contextofthetotal argument. Statev. Russell. 125Wn.2d 24, 85-86, 882 P.2d 747 (1994). Here, the prosecutor made the "powerlessness" commentin the context ofexplaining to the jury how and when A.M.F. told herNo. 74143-8-1/9

mother about her father's conduct. The prosecutor's next sentence addressed A.M.F. "trying to articulate to her motherwhatwas happening." A.M.F.'s credibility

was a key issue at trial. A prosecutor has "wide latitude" to comment on and explain its evidence in closing arguments. See Thorgerson. 172 Wn.2d at 453. Based on the context, the prosecutor referenced A.M.F.'s "powerlessness" to explain A.M.F.'s reluctance to describe the sexual abuse and her delay in alerting her mother. And, we are not persuaded that a limiting instruction would have been inadequate. With respect to the swimming analogy, Washington courts have upheld prosecutors' use ofanalogies and metaphors before. See State v. Fuller, 169 Wn. App. 797, 828, 282 P.3d 126 (2012). For example, in Fuller, we upheld a prosecutor's puzzle analogy forthe evidence introduced because the analogy "did not minimize the State's burden of proof because it did not purport to qualify the level of certainty to satisfy the beyond a reasonable doubt standard nor did it minimize or shiftthe burden of proof to the defendant inthe context ofthe argument
as a whole and the trial court's correctjury instructions." ]d at 826. And, in State

v. Barajas, we affirmed a conviction when the prosecutor compared the defendant to a "mangie [sic], mongrel mutt." 143 Wn. App. 24, 39-40, 177 P.3d 106 (2007) (alteration in original). There, though the court found this obviously adverse metaphorfor the defendant improper, itdid not find that the metaphorwas flagrant, ill-intentioned, and incurable such that reversal was warranted. ]d 40. A swimming analogy for the victim's thought process is notas prejudicial as the analogy upheld in Barajas. The swimming analogy did not comment on theNo. 74143-8-1/10

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

even relate to proving the elements ofthe crime charged like the puzzle analogy in Fuller. Itwas merely the prosecutor's attempt at a metaphor that presented the evidence favorably. Fuller has not carried his burden to show that the remarks

were flagrant, ill-intentioned misconduct. B. Mischaracterization of the burden of proof 

### Second, Fullerargues that the prosecutor committed misconduct byshifting the burden of proof. He points to a handful of the prosecutor's statements as 

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

### is enough in this case for you to find the defendant guilty." Later, she stated, [T]he last pointIwant to make in my closing is the State's burden, 

### proof beyond a reasonable doubt. You have an instruction telling 

### you about what that means. But in a case like this, it'ssimple, ifyou believe [A.M.F.] when she tells you what her father did, you are satisfied beyond a reasonable doubt. 

### The State responds that it gave a "properstatement of the law" in its statements 

### aboutsatisfying the burden. According to the State, it was merely reminding the 

### jury that a victim's testimony alone can satisfy the beyond a reasonable doubt standard without any corroborating evidence, physical or otherwise. 

### Fulleranalogizesto State v. Fleming. 83Wn. App. 209,213,921 P.2d 1076 

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

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

### argued that thejury may acquit only ifit did not believe awitness's testimony. ]d But, here, the prosecutor told thejury that the prosecution had carried its burden

10No. 74143-8-1/11

to convict if it believed the victim-witness. The former misstated the burden because itrequired the defendant to prove something just to support acquittal. Here, the prosecutor merely reminded the jury that belief in A.M.F.'s testimony alone satisfied that burden because her uncontradicted testimony covered all the elements ofthe crime. Rape of a child inthe first degree is defined

as follows: "Aperson is guilty of rape of a child in the first degree when the person has sexual intercourse with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least twenty-four months older than the victim." RCW 9A.44.073(1). A.M.F. testified that Fuller had engaged in sexual intercourse with her, and that A.M.F. was less than twelve years old. This satisfied the statutory elements ofthe crime, and therefore, mere belief in A.M.F.'s truthfulness was indeed sufficient to find Fuller guilty. The prosecution therefore did not shift the burden of proof. The prosecutor later made the following comment about why rape of a child does not require proof of a specific date: "this kind of crime notably does not require the State to prove the specific date. And that makes sense, doesn't it? Because what child could or would keep track ofdates?" She later stated, "The law doesn't require corroboration. The law doesn't require medical evidence. The lawdoesn't require eyewitnesses." Fuller argues that these comments are prohibited under this court's recent decision in State v. Smiley, 195 Wn. App. 185, 379 P.3d 149 (2016), review denied, 2016 WL 7466613. In Smiley, the prosecutor's closing argument included a lengthy explanation about why it is good policy to not require corroborating evidence of sexual assault victims' testimony. Id at 191. Most

11No. 74143-8-1/12 notably, the Smiley prosecutor stated that ifvictim testimony alone was insufficient to support a conviction, " 'we'd have to tell the kids, sorry ... we can't hold your abuser responsible.' " Id at 192 (alteration in original). This court found the prosecutor's comments improper because "the implication was clear: ifthe jury agreed with defense counsel and refused to convict without corroborating evidence, other children are in danger." Id at 194. However, the court did not reverse, id at 197. Smiley did not object at trial, and the court found that the resulting prejudice would have been curable upon objection. Id In Smiley, the improper statements to the jury were focused on policy 

### implications of a notguilty verdict on other cases. But, the prosecutor here made
no statements that rise to the level of" '[w]e couldn't hold the majority of sexual 

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

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

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

### keep track of dates?" But, this explanation did not implicate the impact of the decision ofthisjury on other sexual assault cases orfuture policy implications like the Smiley statements. The statements in Smiley were more prejudicial than the 

### prosecutor's statements here, yettheydid notwarrant reversal underthe "flagrant, ill-intentioned" standard that we must apply here, jd at 197; Thorgerson. 172 

### Wn.2d at 443. The policy statements discussed here were not flagrant, illintentioned misconduct.

12No. 74143-8-1/13

C. Comment on witness' truthfulness Third, Fuller argues that the State personally vouched for A.M.F.'s credibility. During closing arguments, the prosecutor stated, "I think you knew that she was telling you what happened." Later, the prosecutor also told the jury that 

### "you'll look back and knowwhat [A.M.F.] said is what happened to her." The State contends that these statements were merely a "summation" that amounted to no more than "a permissible inference drawn from the evidence." 

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

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

### (2006), affd, 165 Wn.2d 17, 195 P.3d 940 (2008). But, a prosecutor enjoys wide latitude to argue draw reasonable inferences from the concerning witness credibility, id 165 Wn.2d at 30. 

### Here, based on the context, the prosecutor's allegedlywrongful statements 

### merely stressed A.M.F.'s credibility. One sentence after the prosecutor states 

### "you'll lookbackand know," she asks thejurytoconsiderA.M.F.'s demeanorwhen judging hercredibility. This is a "reasonable inference from thefacts concerning witness credibility" that the prosecutor is allowed to make, id 

### Moreover, none of the allegedly wrongful statements expressed the 

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

### statements to the jury were that "you'll look back and know she was telling you 

### what happened" and "I think vou knew" thevictim wastelling thetruth. (Emphasis

13No. 74143-8-1/14 added.) The prosecutor did not state something along the lines of "I know" or "I guarantee" A.M.F. was telling the truth. Fuller has not carried his burden to show that these comments were flagrant, ill-intentioned misconduct.

III. Cumulative Error Fuller argues that the foregoing issues amount to cumulative error. The cumulative error doctrine applies when there have been several trial errors that standing alone do not warrant reversal, but when combined deny a defendant a fair trial. State v. Greiff. 141 Wn.2d 910, 929, 10 P.3d 390 (2000). But, because
we find no error in the rereading of A.M.F.'s testimony and no prosecutorial misconduct, we find no cumulative error. Affirmed.

WE CONCUR: 

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