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UNPUBLISHED OPINION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. — Fuller appeals his conviction for two counts of rape of a

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

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

allowing a transcript ofthe victim's testimony to be read tothe jury. He alsoalleges

that the prosecutorcommitted misconduct in closing argument. We affirm.

FACTS

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

engage in sex acts with him. A.M.F. was four years old at the time. The King

County Sheriff's Office was notified, and Fuller was charged with two counts of

rape of a minor in the first degree.

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

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

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

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

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

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

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

jury a single time by a bailiff from another chambers.

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

degree. Fuller appeals.

DISCUSSION

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

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

Second, he argues that the prosecutor committed misconduct during closing

arguments. Finally, he argues that even if thesetwo errors do not warrant reversal

on their own, they amount to cumulative error.

I. Reading testimony to jury

Fuller first arguesthatthe trial court erred by ordering a transcript ofA.M.F.'s

testimony to be read to the jury due to the difficulty in hearing A.M.F.'s original

testimony.1 He contends that this overemphasized 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. In one video, she tells

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

with a child interview specialist. The jury was permitted to review them in the jury

room. But, Fuller has not alleged any error regarding the jury's review of those

videos in the jury room. We therefore limit our analysis to only the trial court's

decision to have a transcript of A.M.F.'s testimony read to the jury.
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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 twoWashington cases. First, he relies on Koontz.

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

testimony was reversible error because of the possibility of "undue emphasis" on

certain portions oftestimony. \_± at 660-61, 657. The Court reasoned that courts

should balance the needs for reviewing the testimonywith procedural safeguards,

such as limiting the amount oftimes the jury can review the video, to prevent juries

from overemphasizing the evidence. Id at 657. And, the Court was careful to note

that the "unique nature ofvideotaped testimony" made replaying video for the jury

especially concerning, and motivated its decision to reverse. Id, at 657, 659-61

Fuller argues that, under Koontz, reading a transcript to the jury is "a poorer

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

transcript should raise greater concern than the jury reviewing a video. But, this

directly contradicts the Koontz reasoning, "Reviewing videotaped testimony raises

greater concerns than reading from a transcript because videotaped testimony
No. 74143-8-1/4

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

transcript." lcLat655.

Although Koontz establishes that rereading transcribed testimony is less

concerning than replaying video, any second presentation of testimony is

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

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

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

(holding thattrial court "took the proper precautions," such as inviting authority and

arguments from the parties on balancing the concerns raised in Koontz, and

replaying audio only once instead of giving the jury a transcript during

deliberations.). Here, the trial court first invited the parties to submit authority on

the issues so that its decision on the jury's request was properly informed. After

deciding to have the testimony reread, the trial court specifically reminded the jury

that 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.].

After consulting with the attorneys, Iam granting 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. The testimony you requested will be read to

you here in the courtroom. You will hear it only one time.

After you've heard the testimony, you will return to the jury

room to resume deliberations. When you - when you do, remember

that your deliberations must take into account all ofthe evidence in

the case, notjust the testimony that you have asked to rehear.
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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 the jury box, but was not allowed to reference the transcript in deliberations, jd.

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

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

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

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

the jury in Monroe could review the transcripts at will in the jury box, but in this

case the testimony was read to the jury once from a transcript, jd, at 640. And,

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

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

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

distinct and does not control.2

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

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

2 The Monroe court based its decision on the Court of Appeals' Koontz

decision. Monroe, 107 Wn. 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 of Appeals' Koontz decision. State v. Koontz, 145

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

distinguishable from the instant case, we decline to address whether the Supreme

Court's Koontz decision affected Monroe's validity.
No. 74143-8-1/6

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

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

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

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

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

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

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

explicitly notes that replaying video raises greater concern than reading a

transcript. Koontz. 145 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 cited favorably. Koontz. 145Wn.2d at

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

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

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

the transcripts over the other evidence:

"I want you to bear in mind that the testimony at trial is the evidence,

not the transcripts. The transcript is not authoritative. If you

remember something different from what appears in the transcripts,

your collective recollection is controlling. In other words, the

transcripts may not serve as a substitute for the collective memories

of the jury or take the place of the assessment of the credibility of

witnesses subject to the usual rules. . . . Finally, as the court has

previously instructed you, you must weigh all of the evidence in the

case and not focus on any one portion of the trial."

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

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

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

make the same admonitions as Montgomery regarding the transcript not being

authoritative and regarding reliance on their collective recollections ifdifferent from

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

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

necessary.

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

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

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

emphasis on procedural safeguards. Koontz. 145 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. For these reasons, we cannot

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

an abuse of discretion.

II. Prosecutorial Misconduct

Fuller next argues that the prosecutor committed misconduct during his

closing argument.

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

misconduct was both improper and prejudicial. State v. Emery. 174 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's verdict. State v. Thorgerson. 172 Wn.2d 438, 442-
No. 74143-8-1/8

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

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

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

the jury. Id at 443. Fullerdid not object to any 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

Fuller first argues that the prosecutor committed misconduct by making an

improper appeal tothe jurors' passions. Fuller points tothe prosecutor asking the

jury to "[t]hink for a moment about the powerlessness of that little girl." He argues

this errorwas compounded when the prosecutor elaborated on these statements

by analogizing the victim's willingness to share her story to a child testing the water

for danger before swimming in unknown waters. By the prosecutor's analogy, as

the victim became more comfortable, she began to share more, which explained

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

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

but rather inferences "reasonably drawn from the evidence."

Aprosecutor may not appeal to the passions ofthe jury so as to encourage

a verdict based 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

improper remarks in the context of the total argument. State v. Russell. 125 Wn.2d

24, 85-86, 882 P.2d 747 (1994). Here, the prosecutor made the "powerlessness"

comment in the context of explaining to the jury how and when A.M.F. told her
No. 74143-8-1/9

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

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

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

explain its evidence in closing arguments. See Thorgerson. 172 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 of analogies and metaphors before. See State v. Fuller, 169 Wn.

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

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

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

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

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

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

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

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

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

metaphor for the defendant improper, itdid not find that the metaphor was flagrant,

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

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

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

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

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

in Fuller. 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 by shifting

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

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

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

[T]he last point I want to make in my closing is the State's burden,

proof beyond a reasonable doubt. You have an instruction telling

you about what that means. But in a case like this, it'ssimple, if you

believe [A.M.F.] when she tells you what her father did, you are

satisfied beyond a reasonable doubt.

The State responds that it gave a "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.

Fuller analogizesto State v. Fleming. 83 Wn. App. 209, 213, 921 P.2d 1076

(1996). In Fleming, this court reversed when the prosecutor told the jury that it

must find that the defendants were lying or mistaken in their testimony in order to

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

argued that the jury may acquit only if it did not believe a witness's testimony. ]d

But, here, the prosecutor told the jury that the prosecution had carried its burden

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No. 74143-8-1/11

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

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

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

testimony alone satisfied that burden because her uncontradicted testimony

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

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

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

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

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

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

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

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

did not shift the burden of proof.

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

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

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

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

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

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

this court's recent decision in State v. Smiley, 195 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

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No. 74143-8-1/12

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

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

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

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

agreed with defense counsel and refused to convict without corroborating

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

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

resulting prejudice would have been curable upon objection. Id

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

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

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

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

explanation that a victim's testimony alone can be sufficient to support the

elements necessary to convict. The prosecutor discussed the policy behind why

rape ofa child requires only a charging date range rather than the specific date of

the crime: "And that makes sense, doesn't it? Because what child could or would

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

decision ofthis jury 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 not warrant 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.

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No. 74143-8-1/13

C. Comment on witness' truthfulness

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

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

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

"you'll look back and 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 look back and know," she asks the jury to consider A.M.F.'s demeanor when

judging her credibility. This is a "reasonable inference from the facts concerning

witness credibility" that the prosecutor is allowed to make, id

Moreover, none of the allegedly wrongful statements expressed the

prosecutor's personal view as to whether the victim was credible. Rather, the

prosecutor's statements were mere suggestions that the jury would, upon

reflection, find A.M.F. to be a credible witness. The two allegedly wrongful

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

what happened" and "I think vou knew" the victim wastelling the truth. (Emphasis

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No. 74143-8-1/14

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

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

that these comments were flagrant, ill-intentioned misconduct.

III. Cumulative Error

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

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

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

fair trial. State v. Greiff. 141 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:

^sG/Ufry, h(^}

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