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

v. EBRIMA SUSOHOR, Appellant. NO. 68675-5-1 DIVISION ONE

UNPUBLISHED OPINION
FILED: November4, 2013 Leach, C.J.

— Ebrima Susohor appeals his convictions for two counts-^Qf second degree rape of a child. He contends thatthe court's instruction to thejury regarding a third charge of violation of a sexual assault protection order constituted an impermissible comment on the evidence regarding the jury's factual determination of whether Susohor raped his stepdaughter. Assuming, without finding, that the challenged instruction did impermissibly comment on the evidence, the jury received overwhelming, untainted evidence supporting Susohor's conviction. We affirm. FACTS In 2006, Ebrima Susohor married A.R. and moved in with her and her 

### daughter, A.R.C. The child, then nine years old, began to call Susohor "daddy." She suffers from pervasive developmental disease and mildmental retardation.NO. 68675-5-1 / 2

In late 2008, when A.R.C. was almost 12 years old, Susohor and A.R.'s 

### relationship deteriorated. Susohor moved out of the home. Shortly after this separation, A.R. learned she was pregnantwith Susohor's child, and he returned to live with them. Due to complications with her pregnancy, A.R. checked into 

### the hospital for a few days leading up to the birth of her child. During this time, Susohor raped A.R.C. "more than one time" on "more than one night." While she


### was visiting the hospital, A.R.C. reported these incidents to her mother. A.R. notified police. After A.R.C. described multiple incidents of vaginal, oral, and anal contact with Susohor, police arrested him on suspicion of rape of a child. Several weeks later, a court issued a pretrial sexual assault protection order 

### prohibiting Susohor from contacting A.R.C. directly, indirectly, or through a third 

### party. Despite this order, Susohor sent a signed letter to A.R. that contained a message for A.R.C. 

### A jury convicted Susohor of two counts of rape of a child in the second degree (counts Iand II) and one count ofmisdemeanorviolation of a court order 

### (count III). The jury also found as an aggravating factor for sentencing that A.R.C. was a particularly vulnerable victim. Susohorappeals.NO. 68675-5-1 / 3

ANALYSIS 

### Susohor argues that the trial court improperly commented on the 

### evidence by giving two instructions that referred to a sexual assault victim. We reviewjuryinstructions denovo and inthe contextofthe instructions as awhole. Article IV, section 16 of the Washington State Constitution provides, 

### "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." This provision prohibits a judge from 

### "conveying tothejuryhis orherpersonal attitudestoward the merits ofthe case" orinstructing ajury that "matters offact have been established as a matter of law."2 Thecourt's personal feelings on an element of the offense need not be 

## expresslyconveyed; itissufficientiftheyaremerelyimplied.3 "Thus, anyremark that has the potential effect ofsuggesting that thejury need not consider an 

### element of an offense could qualify as judicial comment."4 Because the constitution expressly prohibits anyjudicial commenton the evidence, aclaimed error based upon such a comment involves a manifest constitutional error that 

## mayberaisedforthefirsttimeonappeal.5

1State v. Lew. 156 Wn.2d 709, 721, 132 P.3d 1076 (2006). 2State v. Becker, 132Wn.2d 54, 64, 935 P.2d 1321 (1997). 3State v. Jackman, 156 Wn.2d 736, 744, 132 P.3d 136 (2006). 4Lew. 156Wn.2dat721. 5Lew. 156 Wn.2d at 719-20. -3-NO. 68675-5-1 / 4

Susohor contends that instructions 17 and 18 impermissibly commented
on the evidence because they implied that the court believed A.R.C.'s version of events. Both instructions dealt with the elements the State had to prove for the jury to find Susohorguilty ofviolation of a court order. Instruction 17 read, A person commits the crime of violation of a court order when he or she knows of the existence of an order issued for the protection of a sexual assault victim, and knowingly violates: restraint provisions ofthe order prohibiting contact with a protected party or a provision of the order excluding the person from a residence or school or a provision of the order prohibiting the person from knowingly coming within or remaining within a specified distance of a location. Instruction 18 listed the elements ofviolation ofa court order as follows: To convict the defendant of the crime of violation of a court order as charged in Count III, each ofthe following elements ofthe crime must be proved beyond a reasonable doubt: (1) That on or about a time intervening between December 2, 2009 and December 9, 2009, there existed an order issued for the protection of a victim of sexual assault applicable to the defendant. Susohor claims that the use of the term "sexual assault victim" in these instructions told the jury, in regard to counts I and II, that the court believed a sexual assault had occurred, improperly removing the factual issue from the 

### jury's consideration. To supportthis claim, hecites Statev. Jackman.6 in which
our Supreme Courtfound thatjury instructions stating the victims' birth dates was



### 6156 Wn.2d 736, 744, 132 P.3d 136 (2006). -4-NO. 68675-5-1 / 5 

### an impermissible judicialcommentwhere the victims' minority was a major issue
in the case. 

### He also relies on State v Becker7 and State v. Lew8 In Becker, the court found that jury instructions that referred to a school, "'to-wit: Youth Employment Education Program [YEP] School,'" was an impermissible judicial comment 

### where the Statehad a burden toprove thatthe program was, in fact, a school.9 The court in Lew confronted a similar challenged instruction. On the charge of 

### first degree burglary, the court instructed the jury that in order to convictLevy, it must find that he "entered or remained unlawfully in a building, to-wit: the building of Kenya White" and that in so doing he "was armed with a deadly 

### weapon, to-wit: a .38 revolver or a crowbar."10 Our Supreme Court rejected these "to-wit" references, finding that the instructions improperly implied that an 

### apartment is a building and a crowbar is a deadly weapon as a matter of law, 

### ratherthan as afactual inquiry beforethejury.11 For purposes of this appeal, we assume, without deciding, that the 

### language used in instruction 17, referring to A.R.C. as a sexual assault victim, was an impermissiblejudicial comment. "Judicialcomments are presumed to be
7 132Wn.2d 54, 935 P.2d 1321 (1997). 8 156 Wn.2d 709, 132 P.3d 1076 (2006). 9Becker. 132 Wn.2d at 64. 10 Lew. 156Wn.2dat716. 11 Lew, 156Wn.2d at 721-22. -5-NO. 68675-5-1 / 6 

### prejudicial, and the burden is on the State to show that the defendant was not prejudiced, unless the record affirmatively shows that no prejudice could have resulted."12 To do so, the State must demonstrate that "overwhelming untainted 

### evidence" supportstheverdict.13 In Statev. Lane.14the courtclarified application of this rule in the contextof judicialcomments on the evidence, explaining, 

### "[Ejven if the evidence commented upon is undisputed, or 'overwhelming,' a comment by the trial court, in violation of the constitutional injunction, is reversible error unless it is apparentthat 

### theremarkcould not haveinfluenced thejury."[15] Susohor contends that the State cannot overcome the presumption of prejudice. 

### He argues that the record contains nophysical evidencelinking him to the crime and that he successfully challenged A.R.C.'s credibility bypointing out her mental deficits and her apparent dislike of him. To the contrary, strong DNA 

### (deoxyribonucleic acid) evidence linked him to the crime. According to the forensic expert, semen found in A.R.C.'s underpants had a 1 in 180 billion chance of beingfrom someone not related to Susohor. During a sexual assault examination immediately after A.R.'s report to the police, A.R.C. provided 

### graphic, detailed description of the events. At trial, A.R.C. testified repeatedly

12 Lew. 156Wn.2dat723. 13 State v. Lane. 125 Wn.2d 825, 839, 889 P.2d 929 (1995) (citing State v. Gulov. 104 Wn.2d 412, 426, 705 P.2d 1182 (1985)). 14 125 Wn.2d 825, 889 P.2d 929 (1995) 

### 15 Lane. 125 Wn.2d at 839 (quoting State v. Boqner. 62 Wn.2d 247, 252, 382 P.2d 254 (1963)). -6-NO. 68675-5-1 / 7
and consistently about the details of the rapes. Overwhelming, untainted evidence supports each challenged conviction. CONCLUSION Assuming the impropriety ofchallenged instructions, no prejudice resulted because the State presented overwhelming, untainted evidence that Susohor committed the charged sexual assaults on A.R.C. We affirm. 

# A^t <?• ^

WE CONCUR: 

# \/)ff/yvQ^, J . 7^ //