IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, 

### ) No. 76443-8-I 

### ) Respondent,
v. 

### ) UNPUBLISHED OPINION FISHER, CHARLES FRANK 

### ) DOB: 10/03/1957, Appellant. 

### ) FILED: March 25, 2019 SCHINDLER, J.

— Charles Frank Fisherseeks reversal ofthejury convictions of attempted rape in the second degree and attempted murder in the first degree. Fisher argues (1) prosecutorial misconduct during rebuttal closing argumentviolated his right to a fairtrial, (2) extrinsic evidence may have resulted in prejudice, (3) police officer testimonyviolated his Miranda1 rightto remain silent, and (4) cumulative error deprived him ofthe rightto a fairtrial. Fisheralso contends the court erred by imposing the $200 criminal filing fee.2 We affirm thejury convictions but remand to strike the criminal filing fee.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2We grant Fisher’s motion to file the supplemental assignment oferrorand supplemental brief challenging imposition ofthe criminal filing fee.No. 76443-8-112 FACTS

At around 3:00 p.m. on Sunday, June 26, 2016, C.V. drove to Marina Beach Park in Edmonds to beachcomb and lookforshells. Marina Beach Park is located south of the Edmonds Ferry Terminal. CV. walked along the beachto the end ofthe dog park
area. C.V. left a bag ofart supplies and a book neara fence atthe south edge ofthe dog park. C.V. walked “around the point” to a secluded and less populated area ofthe beach where the shoreline curves to the east. Train tracks run parallel to the beach located above an approximately 10-foot-tall rock and boulder embankment. There is an access road nearthe train tracks. On the otherside ofthe access road is a very steep hill with dense vegetation. C.V. knewthe “tide was coming in” but “wanted to walk south while I had the chance to beachcomb.” C.V. carried her cell phone and a “small sandwich-size Ziploc bag” forshells. As she walked along the beach, she sawfewer people. At approximately 5:10 p.m., 

### C.V. sent a text message to her spouse telling him that she found “a whole moon shell forthe firsttime.” C.V. decided to “turn around and head back.” As she was walking backtoward the dog park, C.V. saw a man, later identified as Charles Frank Fisher, walking toward her. C.V. noticed Fisherwas “older” with “grayish/silverish hair,” “wasn’twearing a shirt,” and “was wearing gray sweats.” 

### C.V. said Fisherstarted walking toward her “atwhat appeared to be a pretty brisk pace forthe beach.” When C.V. reached a “narrow path” along the beach where theywere “going to have to pass” one another at “pretty close proximity,” Fisher “kind ofopened up his stance a bit” like “he was going to hug” her. But instead, Fisher knocked her cell phone

2No. 76443-8-1/3

and the bag ofshells out of her hand and “punched” her in the face, hitting her in the eye and hard enough to knock herdown to the ground. When C.V. tried to get up, Fishercontinued to knock herdown to the ground by hitting or punching her. C.V. said Fisherwas relentlessly “pummeling” her. C.V. repeatedly asked Fisher, “‘Why are you hurting me?.

. . What do you want?’

“ Fisherdid not respond and “just kept punching” her. Her “eye was starting to close,” her “vision was blurry and narrowing,” and she was “really hurting” and “disoriented from a lot ofthe hits.” When C.V. pleaded with him, “‘Please don’t hurt me. You’re hurting me,’

“ Fishertold her,

“ ‘I wantto fuckyou.’

“ Fisher restrained C.V. from behind and lifted her skirt “to the pointto where he realized that itwasn’t actually a skirt” but shorts. C.V. told Fisher, “‘Okay.

. . . Butwe can’t do it here. We’ll have to go somewhere..

. else.’” C.V. hoped that by “moving locations,” she could get away or someone would see them and help her. But aftershe suggested they move to a different location, the “fury ofthe punches and the attack intensified.” C.V. “started screaming.” Fishertried to stop herfrom screaming “with choke holds or kind of pushing myface down,

. . . and then even covering

. . . my mouth with his hand.” Fisher continued to hit C.V. in the “head area,” but

## “[utwas a different punch, and Ijust knew I couldn’ttake many

— many more ofthose like that. It.

. .just really rocked me.” C.V. tried to keep her chin “on my neck” but Fisher got his hands around her neck and strangled herto the pointwhere her airwaywas “restricted. I can’t
scream. I can’t get enough airto scream. I’m trying to breathe.” Fisher put C.V. in a “choke hold” and squeezed her neck hard enough to leave “finger marks.”

3No. 76443-8-1/4

Fishertold C.V., “‘I changed my mind. I don’twantto fuckyou. I’m going to kill you.’” Fishersaid, “‘I know. I’ll drown you. How aboutthat?.

. . You won’t be able to
scream then. Yeah, I’ll drown you.’

“ Fishersaid, “‘Good-bye,’” and “dragged” her toward the water. The waterline was only “a couple of inches” away. CV. “really believed that he was going to kill me and intended to.” As Fisher pulled C.V. into the water, she was able to grab onto “a very big rock.” While hanging onto the rock facedown, Fisherwas above and behind her “trying to 

### pry my hands free.” C.V. “decided no matterwhat, I’m not letting go ofthis rock” because she believed going into the water“was certain death.” C.V. said Fisher “started hitting me with what I believed to be a rock or rocks on my back and the back of my head.” CV. believed Fisherwas using a rock “because itfelt different than his hand.” C.V. “let go ofthe rock” she was holding onto, “flipped over,” and began hitting Fisher. C.V. said thatshe “somehow slipped free of his grip” and “started running north down the beach

. . . as fast as I could,” screaming for help. C.V. saw a man and a woman “in the distance” walking “up
on the tracks” and screamed, “‘Help. Help. Call 911.’ Emily and Geoff Hovde heard “screaming” that “sounded like

. . . somebodywas seriously in trouble.” Theywalked across the train tracks to the edge ofthe rock embankment “to see down” to the beach. C.V. was “a little bit south,” “all the way down

• where the water metthe rocks.” C.V. yelled, “‘[A] man tried to.

. . beat me. Tried to kill me. And tried to rape me. I’ve been beat up. He attacked me. Please help.’” C.V. “pointed back behind her.

. . a few hundred feet, maybe,” and the Hovdes “saw a guy climbing up the rocks towards the [access] road.”

4No. 76443-8-1/5

The Hovdes told C.V. to climb up the rock embankment and “[w]e’ll call 911 Geoff3 said C.V. “was so out of breath she could almost hardlytalk” and “seemed all shook up. She was bleeding.” Emily said C.V. was exhausted, “scraped up” and “bloody,” and her clothing and hairwere disheveled. She was exhausted. I rememberthat. And I think she was trying to keep calm and trying to kind of process whatwas going on. She

— did notice that one side of herface was

. . . scraped up, itwas bloody. The white part of one of hereyes was

—you know, had a broken blood vessel or two. It definitely had something happen there. But I noticed thatthe back of

— her swimsuitwas kind of like a tankini~41 to there was a clip in the backthat had been undone. I noticed that her

— I think itwas both of her knees thatwere scraped up. They both looked bloody; I wouldn’t be able to sayforsure. Really, what mostlywas herface, maybe a little bit of blood in her hair. Her hair was

— itwas pretty

— pretty messed up, pretty disheveled. Geoffcalled 911 at 5:28 p.m. C.V. told the 911 operatorshe had been attacked and described Fisher. While on the phone with 911, C.V. and the Hovdes saw Fisher at the top ofthe rock embankment, “grabbing a bag.” C.V. said, “[lit seemed like he possibly reached down and grabbed a bag and then took, like, that last step up” onto the train tracks. Fisherstarted “speed-walking” on the access road in the opposite direction toward the dog park. Emily said it looked like Fisher “was trying to get away” and “trying to keep [us] from getting a good look at his face.” Geoffsaid Fisherwas “sweating” and “veryfatigued looking. You know, he wasn’t even running really fast. It
was kind of like a littlejog, almost, kind ofwith his head down.”

~We referto Emilyand Geoff Hovde bytheirfirst names forclarity.

~Atwo-piece swimsuit consisting of bikini briefs and atanktop.
5No. 76443-8-1/6

The Hovdes and C.V. began to “walk slowly.

. . backtowards the dog park[ 

### 1.” Theytried to keep Fisher in theirsight butwhen Fisher“went around” the bend in the road, they “couldn’t see him anymore.” Edmonds Police Officer Ross Sutton arrived within two to five minutes ofthe 911 call. C.V. “looked very upset, like she’d been crying.” C.V. had cuts, scrapes, blood, and wet sand on her body. C.V. told OfficerSutton that a man attacked her, “told her he wanted to fuck her,” and then tried to drown her. C.V. described Fisher and said he had “very blue or intense

. . . eyes.” Emily and Geoffsaid Fisher had gray hair, was wearing gray sweatpants, and was notwearing a shirt. Theysaid Fisherwas carrying “some sort ofa bag” or a “[s]weater orsomething.” Officer Sutton called medics and took photographs of C.V. Officer Brian Mcintyre and other officers arrived and wentto the dog parkto question witnesses. A man told Officer Mcintyre that his son saw a man “without a shirt
run off into thatwooded cliffarea” on the otherside ofthe train tracks. Julianne Vannoy told police thatwhile she was walking south along “a little path” nearthe fence that “separates the [dog] parkfrom the railroad tracks,” she saw Fisher“franticallytrying” to climb the steep hill above the train tracks through dense vegetation. Vannoy described Fisheras “an olderwhite male wearing gray sweats.” Vannoy said he “didn’t have a shirt on” and was holding “a white T-shirt in his hand” that “kept getting caught on brambles.” The police officers contacted Lynnwood Police K-9 OfficerJacob Hubby. When Officer Hubby and his dog arrived, Edmonds Police Officer Michael Bower used a patrol
car public-address system to announce the K-9 is “going to be deployed. Please come

6No. 76443-8-1/7

down.” After repeating the announcement and getting no response, Officer Hubby, the dog, Officer Bower, and Edmonds Police Officer Robert Peck climbed up the steep hill. Officer Bowerdescribed climbing up the hillside: That hillside has a pretty good grade on it. I mean, when we went up the hill, itwas not an easy climb. There was no pathwaythatwas preexisting. You could see thatthe vegetation was, like, mashed down by somebody that had obviouslyjust blazed theirown path up into the woods, and we’re following that path, it looked like.

. . . I mean, one ofthese things that we’re slipping and sliding on our boots. Officer Peck described the hillside as “extremely steep[ ]— ifyou were to stand up straight and put your arms out, you could touch the hillside. I mean, itwas that steep. It
was full of brush, trees, sticker bushes, you name itwas in there. Itwas super, super thick.” When the officers reached the wooded area about halfway up the hillside, Officer Bower heard a male voice say, “‘Here. I’m here. Come get yourdog.[’]” The dog had bitten his hand, arm, and leg. [H]e sounded pretty calm. I couldn’t see the dog from my position. And I thinkthe K-9 handlerwas trying to catch up to his dog because the brush was so thick. And you could hearthe dog. And we got up to where he was, I finally saw him, and I saw an older malewith gray hair, a grayish zip-up sweatshirt, gray sweatpants, and I think brown boots, in a sitting position in the woods, kind offacing us. Fisher looked at Officer Bower and said, “I knowyou.” Officer Bowerdid not reply. The man then “suddenly blurted out in front ofall of us, he said, That bitch. We
were smoking weed, and she yelled rape, and I gotthe fuck out ofthere.” Fishertold Officer Bower, “I knewthe dog and you guys were going to find me, or something along those lines.”

7No. 76443-8-1/8

Officer Hubby and Officer Peck placed Fisher in handcuffs and helped him get “back down” the hill. When they reached the access road, the officers took photographs of Fisher. The Hovdes identified Fisher as the man they saw earlier. C.V. “was frightened” and “really scared” and would not get out ofthe aid car. Officer Sutton asked C.V. ifshe recognized the person in custody. CV. “looked through the windows” ofthe aid car and said Fisher“matched” the “physical characteristics ofthe person that attacked her.” C.V. said the man who attacked her

“ ‘didn’t have that many clothes on.’

“ Butwhen Fishertook off “his top, a shirt orsweatshirt, tookthat off,

. . . that had a visible effect on her.

. . . She

—there wasn’t a lot ofquestion when he didn’t have his shirt on thatthatwas the individual.” Medics drove C.V. and Fisherto Swedish Medical Center in Edmonds. The next day, police officers and C.V. and herspouse wentto the beach to search for her cell phone. They arrived at around 3:30 p.m. when “the tide would be somewhere around the level thatthe tide was at the time ofthe incident.” C.V. identified the area where the attack occurred. Herspouse found the cell phone in the water nearby. The police took photographs. The State charged Fisherwith attempted rape in the second degree and attempted murder in the first degree. Fisher pleaded not guilty. The State called a numberofwitnesses to testify during the five-dayjurytrial, including C.V., herspouse, Emily and Geoff Hovde, Officer Sutton, Officer Bower, Officer Peck, K-9 Officer Hubby, Edmonds Police Detective Mark Froland, Swedish emergency room physician Dr. Gregg Miller, and Washington State Patrol Crime Laboratory (WSPCL) forensic scientists. Fisher did nottestify.

8No. 76443-8-1/9

The court admitted into evidence more than 120 exhibits. The parties stipulated to the admission of ‘Exhibits 1 to 118.” Exhibits 1 to 118 include a numberof photographs ofthe beach, rock embankment, railroad tracks, access road, and steep hillside area; photographs ofwhere the attack occurred on the beach and locating the cell phone; photographs ofthe injuries to C.V. and Fisher; photographs ofthe clothes CV. and Fisherwere wearing, Fisher in police custody, and green matterseized from Fisherwhen he was arrested; and copies oftext messages between C.V. and her spouse on June 26, 2016. The court also admitted into evidence a numberofother exhibits, including the 911 call recording; drone video footage of Marina Beach Park and the beach, rock embankment, railroad tracks, access road, and steep hillside area; and C.V.’sjournal entries describing the attack. The State played the 911 call and showed thejurythe drone video during trial. C.V. testified extensively aboutthe attack. C.V. said thatwhile Fisher continued to punch her, she kept asking him, “‘Why are you hurting me? You’re hurting me. Why
are you doing it,’ “while atthe same time she was “trying to defend” herself. I was doing a combination oftrying to defend myselfand hit him and hit back. I was

— I was trying to protect my head. The punch, the initial punch in my eye socket, really

— it hurt. It rocked me. I wanted to tryto protect my head. I ended up blocking a lot ofthe punches with my left upperarm, because that arm wasjust a solid contusion from my shoulderto my elbow from justthe multiple blows that I blocked thatway. C.V. testified, “I’ve been asked manytimes, ‘How manytimes did he hityou?’ And it’s been really hard to place a number on that, because I wasn’t counting, and it’s something that’s hard to keep track ofwhen you’re being hit.” C.V. testified there were at leastfour “rests.” “[un my notes I wrote

— I said, ‘Four maybe five.’ So I know itwas

9No. 76443-8-1/10

at leastfour. I had distinct memories offour, stopping while fighting for air, and taking a rest. So, like, that’s a much betterwayfor me to quantify how long it lasted.” C.V. testified that aftershe suggested moving locations, Fisher punched her hard again in her eye ortemple, knocking herto the ground, and “that really disoriented me.” I took a really big

—just another really big hitto the head that really disoriented me, and I

— scared me, and I thoughtthat if I got hit like that too many more times, I started to worry about losing consciousness. C.V. testified thatwhen Fisher said hewas going to kill herand said “good-bye,” he ‘twisted his head around and was looking right in my eyes. And I, again, definitely noticed his bright blue eyes at thattime.” C.V. believed he was going to kill her, and theywere “grappling” and “fighting” as “he’s pulling me towards the water” before she
was able to grab onto a rock.

Ijust grabbed

— in mythinking of no matterwhat, I can’t getto the water and thatwill be the end, I grabbed onto the rock

—a big rock, and it had a great little lip on it kind ofdown low, and it thankfullywas a very big rock, and itwas not

— itwas nottoo big to hold onto and big enough that it had a nice gripper, and a nice lip underneath and close, and itwas stuck in the sand. It didn’t move. So itwas

—that’s the lucky part. C.V. said Fisherwas behind her “still hitting me.”

I kind of leaptforthis rock.

. . . My head is facing east.

. . . Towards the railroad tracks. Q. Okay. A. So I’m on my belly..

. — Q. And where was he in relation to you? A. He was behind me. Q. Doing what? A. Well, he was still hitting me and it

— and atfirst I remember him trying to pry my hands free, and then I was screaming as I could. He’s trying to

. . . pry my hands free. I wasn’t letting him. Then he started hitting me with what I believed to be a rock or rocks on my back and the back of my head.

. . Q. Soyourface— A. Some ofthem missed but

— I only had, like, four

—four good, big lumps on the back of my head. So some ofthem must have, like,

10No. 76443-8-I/il missed orskiffed (sic) me, and I felt like itwas a rock because itfelt differentthan his hand. C.V. testified about her injuries and the “[a]brasions and scratches” “all over” her body. The State introduced photographs CV. tookduring the week afterthe attack. The photographs show a “deep gash” on her knee, the “blackness and swelling around both” of her “black eyes,” the “blood in

. . . both of my eyes,” scratches and bruising under her upper arms “from being grabbed and held,” “scrapes” on her elbow, and the marks on her neck and “a little half crescentfingernail mark” “from the choking and being restrained.” On cross-examination, CV. testified she had four bumps on the back of her head from Fisher hitting herwhile she was hanging onto the rock in the water. C.V. said she could not see what Fisherwas using to hit her, but

## “[utfell differentthan fists, and itfelt like a harder, blunt object.” C.V. said she could “actuallyfeel” the bumps on her head. C.V. was not sure that she told the emergency room doctor about the bumps on her head. “I may or may not have. I may have been more focused on my other injuries.

. I was verytraumatized, having had somebodyjust

### tryto kill me and rape me.” C.V. did not think she pointed out the bumps on her head to the sexual assault nurse because the nurse “was there to collect DNA.”5 C.V. testified she did not remember eitherthe
nurse orthe doctor examining her head. C.V. testified that on the day ofthe attack, aftershe had the “opportunityto look at [Fisher] and see him with his shirt undone,” she was “certain” that he was the man who attacked her.

~ Deoxyribonucleicacid.
iiNo. 76443-8-1/12

C.V. testified she could recall the details ofthe attack because she “immediately

• . wrote down what happened to me” in herjournal. [T]he private things I wrote, I

— immediately after it happened, wrote down what happened to me, simply because ofthatworry, because I knewthat

— I mean, the

— itwas such a vicious attack and that I was going to have

— I was worried about having problems remembering and such. So my answerto that is I did focus on the attack and what happened to me physically, and I wrote that down in great detail. I, however, didn’t detail my ER[6] visit, one, because personally, thatwas

— I don’twantto say “less important,” but I also knewthatthere were physical, written records of my ER visit. So if I needed to know anything about my ER visit, that’s all going to be in the medical records and all documented, but my attackwas not documented. On redirect, the court admitted C.V.’sjournal entries into evidence. CV. testified she was “reluctant” to turn over herjournal entries. “[M]y biggest concern was I had written itwithoutthinking that anybody else would read it so itwasjust a lot more about my innerthoughts and, like, private thoughts. I

—you know, I used cuss words in it, I
wasjust, like, sharing my raw emotions.” But C.V. said thatwhen she read thejournal entries forthe firsttime a few days before trial, she was “really surprised how accurate it
was and how much detail it did include.” Emily Hovde testified C.V. said she “needed help” and “someone had tried to rape herand was beating her up.” Emily said C.V. was “clearlyshooken up.” “She had blood on herface and sand on herface, I remembershe was trying to wipe kind of awayfrom hereyes, and breathing pretty heavily.” Geoff Hovde testified that C.V. “was extremelyfatigued” and was “so out of breath she could almost hardlytalk.” Geoffsaid C.V. was bleeding, had “scratches” on her knees and arms and “blood in her hair,” and “the backtop button” of C.V.’s top “was

6 Emergency room.
12No. 76443-8-1/13

undone.” Geofftestified C.V. said, “He attacked me.” As C.V. pointed “up the beach,” Geoff“saw a man climbing up overthe rocks.” Officer Sutton testified that because Fisher had a “jacket on,” C.V. was uncertain that he was the man who attacked her. “[S]he was very certain thatthe person who attacked herwasjustwearing gray sweatpants and didn’t have any.

. . shirt on.”

We were.

. . about 40 feet away, so itwas very hard to see any detail in the description. She commented that he matched the size, I guess, the physical characteristics ofthe person that attacked her. But she was unable to sayfor certain whether itwas him or not. Officer Sutton testified that as he was getting out ofthe aid car, C.V. “commented to me specificallywhat she did rememberaboutthe guywas howvery blue or intense his eyes were.” Officer Sutton walked overto Fisher. Officer Sutton testified, “[litwas my observation that his eyes were very intensely blue like [CV.] had described.” Swedish emergency room physician Dr. Gregg Miller examined C.V. on June 26, 2016. C.V. told Dr. Millera man attacked, beat, and strangled her atthe beach. C.V. told Dr. Millerthat as she was walking on the beach, “she saw a man coming towards her, who seemed to be approaching her in an unusual way.

. . . He came to, like, hug her, and she tried

— I think she said she tried to dodge him

. . . ,and then he assaulted her.” C.V. told Dr. Millershe “fought back, and he continued to assault her, and she continued to fight back.” Dr. Millertestified the attack “sounded like itwas a really prolonged

— I mean, itwasn’tjust a punch and then move on. It sounded like itwas a real struggle.” Dr. Miller noted C.V. was “really shaken up, obviously, after such a terrible incident.”

13No. 76443-8-l/14

Dr. Miller used photographs taken atthe hospital to describe the “multiple different areas [that] have been injured.” CV. had “a lot ofabrasions, and she mentioned a lot ofareas of pain, in particular herknee where she had a laceration.” Dr. Millertestified the “deep[] cut” on her right knee required stitches and she had a broken finger. Dr. Millertestified C.V. told him “she had been struck in the head

— orsomehow had her head struck, maybe itwas struck on the ground or maybe he struck her.” Dr. Millertestified C.V. suffered “blunt head trauma” and had been strangled.

Her head didn’t seem to

— her head itselfdidn’t seem to have sustained any majortrauma. Her eyes, she had kind ofa bloodshot right eye from some trauma or perhaps from the strangulation injury. Perhaps when you’re strangled, blood vessels can pop, and you see it in the eyes and the skin ofthe head

— orthe skin ofthe face where the capillaries rupture from being strangled. Dr. Millertestified C.V. had “what looked to me to be likely choke marks, she had bruising around her neck.” The linear bruising on her neckwas “very consistent with finger marks” and strangulation and showed “somebody had to grab her bythe neckto
cause thattype of injury.” Dr. Millertestified C.V. had “bruising” and “scrapes” on herface, “a lot of abrasions and scrapes

. . . scattered up and down her back,” and “a lot ofabrasions
on her extremities.” C.V. had scrapes and bruises on her arms and elbows, her inner and outerthighs, and above and below her left knee. Dr. Millertestified the injuries to C.V.’s face show “this wasn’tjust a single injury. Itwasn’t like she was struck one time. Itwasn’t like she had a single hit. This was a prolonged, vicious.

. . physical altercation here.” Dr. Miller said the injuries to her left arm were consistentwith “a defensive injury, somebody shielding themselves.” Dr. Millertestified the injuries were “absolutely”

14No. 76443-8-1/15

consistentwith C.V.’s account ofthe attack, “as well as the account ofthe incidentthat the paramedics had given.” Forensic nurse Jennifer Newmarch testified she conducted an examination of C.V., took photographs of her “multiple injuries,” and obtained swab samples from C.V.’s mouth, neck, chest, and fingernails for DNA testing. Newmarch also collected C.V.’s clothing. Forensic nurse Kristine Perrytestified about her examination of Fisheratthe hospital. Perrytook photographs of Fisher’s injuries from the dog bite wounds to his hand, arm, and leg and swabs from his mouth, hands, wrists, and fingernails for DNA testing. The photographs show Fisher had abrasions and bruising “pretty much over his whole body” and scratches on his face, including “a puncture mark on his upper left cheek” and “bruising to his right cheek bone with scattered abrasions to his face.” Fisher had an injuryto “the top of his nose” and “dried blood surrounding and inside his ear.” Perrytestified the “multiple areas ofabrasion” to Fisher’s upper bodywere “superficial” and “consistentwith” a person who has “crawled through blackberry bushes.” WSPCLforensic scientists testified thatthe DNA samples from C.V.’s neck and chest matched Fisher’s DNA. Forensic scientist Carol Vo testified, “[lit is 960 quadrillion times more likely” thatthe DNA profile is from Fisherthan from some random unknown person. DNAtesting also showed Fisherwas a contributorto the DNAfrom the swabs from C.V.’s fingernails. Forensic scientist Kristina Hoffman testified Fisher’s DNA profile obtained from C.V.’s “left hand fingernail sample.

. . would not be expected to occur more frequently than I in 8600 male individuals in the U.S. population.”

15No. 76443-8-1/16

The court instructed thejury on the charged crimes ofattempted rape in the second degree and attempted murder in the first degree. The court also instructed the jury on the lesser included offense ofattempted murder in the second degree. In closing argument, the prosecutor argued there is “no debate whatsoeverthat it
was the defendant atthe focus ofthis investigation.” The prosecutor asserted whether to convict Fisher ofattempted rape and attempted murderturned on whetherthejury believed C.V. “Do you believe what she said? Do you find hercredible?” The prosecutor reviewed the undisputed evidence that supported C.V.’s testimony. “Let’sjust look atwhat else we know aboutwhat happened in this case that is beyond any dispute.” The prosecutor argued there is no dispute the attack happened
on June 26, 2016 on the stretch of beach south ofthe Marina Beach Park dog park between the last text message CV. sent herspouse at approximately 5:10 p.m. and the 911 call at 5:28 p.m.

We know beyond any dispute whatsoeverthatthere was some kind of contact between the defendant and [CV.]. And we knowthat because ofthe defendant’s own brief statements to the police when theyfirst contacted him. And he said, We were down there, and she started crying rape and I ran away. No question from thatvery general statementthat he’s talking about an encounterwith [C.V.], underthe circumstances. The prosecutor argued the uncontroverted DNA evidence established physical contact between Fisher and CV., “person to person, bodyto body.” The prosecutor argued there is no dispute Fisher climbed “up a steep hillside at some great effort, through thicker bushes and thorns and up rocks and dirt, hiding from the police.”

16No. 76443-8-1117

The prosecutor pointed to other evidence that corroborated C.V.’s account ofthe attack, including the photographs showing her injuries. We have [C.V.] on the 26th, crying, bloody, sandy, disheveled. We have pictures of herfrom the hospital that daywith myriad scratches and bruises and cuts and scrapes, with a bloody eye, with scrapes on her throat.We have pictures ofa healing [CV.], days after, still black under both eyes, bruises all over her body. Bruises on herface from being struck; scratches on herface; a bloody eye; scratches on her neckthat are wider and still linear, consistent with being strangled, or“throttled” is what the doctortold us. The prosecutor argued the testimony of Dr. Miller, the testimony ofthe Hovdes, the 911 call, locating her cell phone the next day nearwhere the attack occurred, and C.V.’sjournal entries corroborated hertestimony about the attack. The prosecutor noted the Hovdes saw C.V. “running toward them, clearly shaken, screaming, crying, asking them to call 911 .“ When the Hovdes saw CV., “there
was only one other person in sight, and thatwas the defendant, coming from the area where [C.V.] had just been.” The prosecutor argued thejournal entries provided more corroboration. More corroboration ofwhat [C.V.] testified to is herjournal. I understand you haven’t had a chance to read ityet, it’s admitted into evidence. It’s available to you. It’s about 32 pages long. But I would encourage you to takethe time to review it carefully. Maybe have somebody read it ortake turns reading it out loud or read it all for yourselves it’s up to you. But rememberwhat she told you aboutthatjournal, that she wrote it shortly afterthe incident, the following day or a couple days later. Never intending for anybody else to ever see it. Certainly not intending itto be an official statement oraccount ofwhat happened to her. And I predictthatwhen you do read it, you will see how raw and how powerful her account is. It’s full ofemotion, it’s full ofself-reflection, it’s full offrustration and swearing and grit and dirt and will and detail and power.

17No. 76443-8-1/18

The prosecutor argued C.V.’s testimonywas “[n}otjust consistent in the accounts that she provided along the wayfrom the initial encounterwith the Hovdes to the police to the account she provided Dr. Millerat the hospital,” but “all the waythrough

— up through hertestimony” attrial. In closing argument, defense counsel conceded the State “has absolutely proved these two people had contact” and C.V. was injured. Two people were atthe beach, [C.V.], Charles Fisher. We both knowthey were there; we knowthey had contact. And let me back up: We knowtheywere both there because [C.V.] talked to the Hovdes, she then contacted the police. She was contacted atthe beach. Charles Fisherwas also contacted atthe beach. Theywere both there. We knowthatthese two people had contact. We absolutely know this. There was DNA, you heard from the forensic scientists. They absolutely had contact. We also knowthat [C.V.] was injured. How do we knowthis? Her husband didn’ttell you she was injured that morning. She had no injuries. She went to the beach, and she leftthe beach injured. So we absolutely knowthat she was injured atthe beach. Defense counsel argued no one knewwhat happened and certain details were nottrue.

I want to spend some time talking about details. I wantto talkto you aboutthe things thatwe actually know happened, what is true, what no one can say did not happen. And I want to spend some time talking to you aboutthings thatwe know are nottrue, details. And then I wantto spend some time talking aboutthings that arejust simply unexplainable. After pointing out inconsistencies in C.V.’s testimony aboutwhat happened, defense counsel argued C.V. was not credible and hertestimony did not supportfinding Fisher guilty ofattempted rape in the second degree or premeditated attempted murder in the first degree. Thejuryfound Fisherguilty ofattempted rape in the second degree and attempted murder in the first degree.

18No. 76443-8-1119

Before the sentencing hearing, the defense submitted a number of letters from family and friends in support ofan exceptional sentence downward. At sentencing, the court rejected the request and imposed a standard range sentence.

You received a fairtrial. Twelvejurors who considered all ofthe evidence concluded beyond a reasonable doubt thatyou’re guilty ofthe attempted rape in the second degree and attempted murder in the first degree. It’s inexplicable ifyou weren’t responsiblewhyyou would run away when the police were summoned and find you offon a hillside trying to avoid apprehension. I don’t question that, apartfrom some problems with alcohol, you’ve been a hard working man, a good father, and a good friend to many. And alcohol ordrugs don’t seem to have been involved here in anyway. So what caused you to act out of character may never be known or understood.

. I don’t have any explanation forwhat happened. I don’t know ifthis was planned orsimplya crime ofopportunity. The victim was simply out fora beach walk on a nice day. She didn’t knowyou, and you didn’t know her. The attackwas unprovoked from every bit ofevidence thatwas produced here in court. It is probably everywoman’s nightmareto be sexually assaulted by a complete stranger. It’s the sort ofthing that people think can’t happen, particularly in a community like Edmonds, but it can, and, unfortunately, it did. ANALYSIS Fisherseeks reversal ofthejury convictions ofattempted rape in the second degree and attempted murder in the first degree murder. Fisher claims (1) prosecutorial misconductviolated his right to a fairtrial, (2) extrinsic evidence may have resulted in prejudice, (3) police officertestimonyviolated Miranda7 and his right to remain silent, and (4) cumulative errordeprived him ofthe right to a fairtrial. Fisheralso challenges imposition ofthe criminal filing fee.

~ Miranda v. Arizona, 384 

### u.s. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
19No. 76443-8-1/20

(1) Prosecutorial Misconduct Fisher contends prosecutorial misconduct during closing rebuttal argument violated his constitutional rightto a fairtrial. “The rightto a fairtrial is a fundamental liberty secured bythe Sixth and Fourteenth Amendments to the United States Constitution and article I, section 22 ofthe Washington State Constitution.” In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 703, 286 P.3d 673 (2012). We review allegations of prosecutorial misconduct during closing argumentfor abuse ofdiscretion. State v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125 (2014). To prevail on a claim of prosecutorial misconduct, the defendant must “showthat in the context ofthe record and all ofthe circumstances ofthe trial, the prosecutor’s conduct
was both improper and prejudicial.” Glasmann, 175 Wn.2d at 704; State v. Thorcierson, 172 Wn.2d 438, 442, 258 P.3d 43(2011). The prosecutor has wide latitude in closing argumentto draw reasonable inferences from the evidence and express such inferences to thejury. State v. Maqers, 164 Wn.2d 174, 192, 189 P.3d 126 (2008); State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997). A defendant establishes prejudice ifthere is a substantial likelihood the misconduct affected thejury’s verdict. State v. Emery, 161 Wn. App. 172, 192, 253 P.3d 413 (2011). Fisher contends the prosecutor improperly expressed a personal opinion and appealed to the passion and prejudice ofthejury in rebuttal argument. An appeal to the passion and prejudice ofthejury is improper. State v. GreQorv, 158 Wn.2d 759, 808, 147 P.3d 1201 (2006), overruled on other grounds by State v. W.R., 181 Wn.2d 757, 336 P.3d 1134 (2014). A prosecutor cannot express a personal opinion as to the

20No. 76443-8-1/21

credibility ofa witness or appeal to the passion and prejudice ofthejury. Lindsay, 180 Wn.2d at437; In re Pers. Restraint of Cross, 180 Wn.2d 664, 724-25, 327 P.3d 660 (2014), abrogated on other grounds by State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018). However, there is no prejudicial error “unless it is clear and unmistakable that counsel is expressing a personal opinion.” State v. Warren, 165 Wn.2d 17, 30, 195 P.3d 940 (2008). During cross-examination, defense counsel questioned C.V. aboutthe number of times she was hit during the attack. “I thinkyou indicated you were hitwell over 100 times?” C.V. testified she could not “quantify” the number oftimes she was hit.

So let’s talk about the attack. You’re hit repeatedly. A. Correct. Q. I thinkyourword is “pummeled.” A. That’s one ofthem, uh-huh. Q. I can think ofsome others you used, butwhy don’t you tell us some others. Howwould you describe that attack? It sounds absolutely vicious. A. Itwas absolutelyvicious, yeah. Q. I thinkyou indicated you were hitwell over 100 times? A. Yeah, I

— I thinkthat I indicated that somewhere, but I’m not sure where. I was

— I think itwas the detectives were really pressing me for how manytimes, and that is a really hard thing to quantify, as I mentioned in mytestimony. Q. Butyou can actually quantify it, because there were at leastfour separate portions ofthe attack. A. The rests that he took helped with quantifying the length, yeah. Yes. In closing argument, defense counsel told thejury C.V.’s testimony aboutwhat happened was not credible because “[sjhe was not hit over a hundred times in the head” and her injuries were not consistentwith that account.

Shejust simplywas not hit over a hundred times. She was simply not hitwith a rock ora blunt object. Unexplainable. You’re beating someone, you take a rest. You beatthem with renewed fury, you take a rest.

21No. 76443-8-1/22 Somehow he has heron the ground, somehow he’s choking her. You beat her again, you take another rest. According to her, there were at leastfour rests. This was a lengthy, sustained, vicious attack. What she’s telling you isjust simply

— I can’t put it as nottrue, but it’s unexplainable. In rebuttal, the prosecutor responded to the defense closing argument. The defense attorney did not objectto the following argument ofthe prosecutor:

Let me offer a couple quick responses to things that [defense counsel] talked to you about. Questions aboutthe accuracy of [C.V.]’s recollection or account about how manytimes she was hit. Who asked that question in the first place? Itwasn’t me. It’s a classically designed no-win question. When you asksomebody under [C.V.]’s circumstances, How manytimes do you thinkyou were hit?just think aboutthat question for a second. Think aboutyourself underthe circumstances, and ifsomeone asks you that question, you can’twin with whatever answeryou give. And, frankly, from your perspective, she can’twin either. Ifshe would have said

—justthink about howthis would play out. If he asked heron the witness stand, How manytimes do you thinkyou were hit in total from beginning to end? what ifshe had taken a moment, looked up, and pondered it and said, 73? Whatwould you be thinking asjurors ifyou heard that? You would think, Really? BS.[81 And she told you why. She was asked the question on the stand and she said, you know, Notthe kind ofthing you’re really keeping track of. Just imagine that, on the ground being pummeled one, one, two, that’s three, fourfive six, seven. Ridiculous. You can see I don’t need to spin this out anyfurther how ridiculous that line ofquestioning is. Where, as here, defense counsel does not object attrial, any error is waived unless the conduct is “so flagrant and ill intentioned that an instruction could not have cured the resulting prejudice.” State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d 653

8 BulIshit.
22No. 76443-8-1/23

(2012).~ Underthis “heightened standard,” the defendant must show “(1) ‘no curative instruction would have obviated any prejudicial effect on thejury’ and (2) the misconduct resulted in prejudice that ‘had a substantial likelihood ofaffecting thejuryverdict.’ Emery, 174 Wn.2d at 761 (quoting Thorgerson, 172 Wn.2d at455). When evaluating whether misconduct is flagrant and ill intentioned, we “focus less on whetherthe prosecutor’s misconductwas flagrant or ill intentioned and more on whetherthe resulting prejudice could have been cured.” Emery, 174 Wn.2d at 762. Forthe firsttime on appeal, Fisher contends the prosecutor committed misconduct by expressing his personal opinion thatthe defense argumentwas “ridiculous” and appealed to the passion and prejudice ofthejury by asking thejurors to “[t]hink aboutyourself underthe circumstances.” State v. Pierce, 169 Wn. App. 533, 280 P.3d 1158 (2012), is distinguishable. In Pierce, the court held itwas improperforthe prosecutorto invite thejurors “to imagine themselves in the position of being murdered in their own homes.” Pierce, 169 Wn. App. at 556. Here, the prosecutor did not askthejuryto place themselves in C.V.’s position. The prosecutorasked thejuryto considerthe possible answers C.V. could

~TheWashington Supreme Court in In re Personal Restraint of Phelps, 190 Wn.2d 155, 170-71, 410 P.3d 1142 (2018), notes: We have found prosecutorial misconduct to be flagrant and ill intentioned in a narrow set ofcaseswhere we were concerned aboutthejury drawing improper inferences from the evidence, such as those comments alluding to race or a defendant’s membership in a particular group, orwhere the prosecutorotherwise comments on the evidence in an inflammatory manner. See State v. Monday, 171 Wn.2d 667, 257 P.3d 551 (2011); State v. Belparde, 110 Wn.2d 504, 508, 755 P.2d 174 (1988) (holding a prosecutorcommitted flagrant and ill-intentioned misconduct bytelling thejury the defendant in a murdertrial was “ ‘strong’” with the American Indian Movement (AIM) and calling AIM a” ‘deadly group of madmen’ “and “‘butchers that kill indiscriminately’ “); Glasmann, 175 Wn.2d at 701-02 (holding itwas flagrant and ill-intentioned misconductfora prosecutorto present slides ofthe defendant’s booking photograph with words like
“ ‘GUILTY’” and “‘WHY SHOULD YOU BELIEVE ANYTHING HE SAYS ABOUTTHE ASSAULT?’” superimposed overthe photograph in bold red letters). 23No. 76443-8-1/24

give aboutthe numberoftimes Fisherstruck her. The prosecutor argued that asking C.V. to quantifythe number of blows placed her in a “no-win” situation because it is “[n]otthe kind ofthing you’re really keeping track of.” Fisher cannot overcome the burden ofshowing any misconductwas so flagrant and ill intentioned that a timely objection and curative instruction could not have obviated any prejudice. Further, even if improper, in the context ofthe entire record and the defense cross-examination attrial, the prosecutor’s statements in rebuttal were a fair response to the defense argument. Improper remarks bythe prosecutor are not grounds for reversal

“ ‘iftheywere invited or provoked by defense counsel and are in replyto his or her acts and statements, unless the remarks are not a pertinent reply or are so prejudicial that a curative instruction would be ineffective.’” State v. Weber, 159 Wn.2d 252, 276-77, 149 P.3d 646(2006) (quoting State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994)). “[lit is not misconductfor a prosecutorto argue the evidence does not supportthe defense theory; prosecutors are entitled to respond to defense counsel’s arguments.” In re Pers. Restraint of Phelps, 190 Wn.2d 155, 167, 410 P.3d 1142 (2018) (citing Russell, 125 Wn.2d at 87). Unlike in Lindsay, the argument that itwas “ridiculous” to expect CV. to count each blow during the attackwas in response to the defense argument. See Lindsay, 180 Wn.2d at 43810 (“An isolated use ofthe term ‘ridiculous’ to describe a witness’s testimony is not improper in every circumstance. But labeling testimony ‘the most ridiculous thing I’ve ever heard’ is an obvious expression of personal opinion as to [witness] credibility.”).

10 Emphasis in original.
24No. 76443-8-1/25

Fisher contends the prosecutordenigrated the role ofdefense counsel by characterizing the defense argument as “a trap” and suggesting defense “counsel had ‘ill intent.’” When the prosecutor argued that “to attack her answerwas similarly ridiculous. It’s a trap said set up bythe defense. I don’t mean to suggest any ill intent,” the defense attorney objected, “I thinkthis is misconduct.” The court overruled the objection but instructed thejuryto “disregard anything which itfeels is opinion evidence bythe prosecutor.” A prosecutor may not impugn the role or integrity ofdefense counsel. Lindsay, 180 Wn.2d at431-32. Characterizing the defense cross-examination as “a trap.

. . set up bythe defense” is improper. See Lindsay, 180 Wn.2d at 433-34. The prosecutor improperly characterized the cross-examination question as “a trap” but expressly stated, “I don’t mean to suggest any ill intent.” The court also instructed thejuryto disregard the prosecutor’s remarks and we presume thejuryfollows the court’s instructions. State v. Dent, 123 Wn.2d 467, 486, 869 P.2d 392 (1994). (2) Extrinsic Evidence Forthe firsttime on appeal, Fisher contends he may have been prejudiced bythe jury’s consideration ofextrinsic evidence thatwas not admitted attrial. It is “misconduct forajuryto consider extrinsic evidence and if it does, that may be a basis fora new trial.” State v. Pete, 152 Wn.2d 546, 552, 98 P.3d 803 (2004). ‘ ‘[E]xtrinsic evidence is defined as information that is outside all the evidence admitted at trial, eitherorally or by document.’” Pete, 152 Wn.2d 55211 (quoting State v. Balisok, 123 Wn.2d 114, 118, 866 P.2d 631 (1994)). “This type of ‘evidence is improper because it is not subject to

~1 Emphasis in original; internal quotation marks omitted.
25No. 76443-8-1/26

objection, cross examination, explanation or rebuttal.’” Pete, 152 Wn.2d 553 (quoting Balisok, 123 Wn.2d at 118). Where “thejury received evidence that it should not have seen, the critical question that remains is whetherthejury’s receipt ofthis evidence prejudiced” the defendant. Pete, 152 Wn.2d 554. In Pete, the trial court inadvertently allowed thejuryto reviewtwo unadmitted documents, the written and signed statementthat Pete gave the police after his arrest and a police reportthat included other contradictory statements. Pete, 152 Wn.2d 553. The court concluded, “The submission ofthe two documents to thejury seriously undermined this defense and nothing short ofa newtrial can correctthe error.” Pete, 152 Wn.2d 554-55. The court expressly rejected the assertion that its decision established a perse rule that required a newtrial everytime ajury is improperly presented with evidence: We have not endorsed a perse rule by ourdecision here. We continue to apply the long-standing rule that “consideration ofany material by ajury not properly admitted as evidence vitiates a verdictwhen there is a reasonable ground to believe thatthe defendant may have been preiudiced.” Pete, 152 Wn.2d at 555 n.412 (quoting State v. Rinkes, 70 Wn.2d 854, 862, 425 P.2d 658 (1967)); see also Glasmann, 175 Wn.2d at 705. Here, the court admitted into evidence approximately 130 exhibits. Atthe beginning oftrial, the parties stipulated to the admission of Exhibits 1 to 118. Exhibits I to 118 include photographs of Fisher; aerial map photographs of Marina Beach Park and the beach, rock embankment, access road, and steep hillside; photographs of CV. and her injuries; photographs of Fisher in police custody and his injuries; photographs of

12 Emphasis in original.
26No. 76443-8-1127

the clothing ofCV. and Fisher; and photographs ofother evidence, such as a photograph ofgreen matter, a glass pipe, C.V.’s cell phone after itwas recovered, and text messages. During the testimony of Geoff Hovde and without objection, the court admitted a CD13 that contained the 911 call, “Exhibit 127.” The State played the 911 call forthe jury. The court also admitted a CD ofa drone video ofthe beach and hillside, “Exhibit 133.” The State played the drone footage video forthejury. Jury instruction 1 states, “The exhibits that have been admitted will be available to you in thejury room.” In closing argument, the prosecutortold thejury, “[AJIl ofthe evidence, all ofthe exhibits thatwere admitted into evidence, you’ll get back in thejury room.” You’ll actually have physical access to all the pictures; we’ll provide you with the abilityto watch the drone video ifyou choose; we’ll have [C.V.]’sjournal; we have the 911 call. All the things thatyou’ve heard published in courtwill be accessible to you. The record does not reflect any discussion beforejury deliberations about providing equipment to thejuryto listen to the 911 call orviewthe drone video. See State v. Castellanos, 132 Wn.2d 94, 97-100, 935 P.2d 1353 (1997) (trial court has discretion to allowjuryto have unlimited access to tape recordings or require thejuryto requestto replay any recordings to prevent undue influence). Forthe firsttime on appeal, Fisher points outthat Exhibit 127, the 911 call CD, contains folders and subfolders with photographsthatwere not admitted attrial.14 Fisher argues the photographs of him in handcuffs, photographs of his injuries and his

13Compactdisc. 14The record indicates neitherthe prosecutor northe defense attorneywere aware ofthe additional photographs on the 911 CD. 27No. 76443-8-1/28

face, the photograph ofa leafy green substance with a scale, and the two photographs of his driver’s license are prejudicial and require reversal. We disagree. Exhibit 127 includes a folder labeled “Photos sentto pros on 070516.” The “Photos sentto pros on 070516” foldercontains foursubfolders: the “Richardson” subfolder, the “scene” subfolder, the “scene Bower” subfolder, and the “Temporary Burn Folder” subfolder.15 There are approximately 265 photographs in the four subfolders. Because thejury did not request equipment to listen to the 911 CD, the record does not support the argument thatthejury saw any ofthe photographs in the four subfolders. In any event, almost all ofthe photographs are duplicative of photographs admitted into evidence and testimony at trial. The only photographs in the subfolders thatwere not duplicative are two photographs of Fisher’s driver’s license, a photograph ofgreen vegetable matterwith a scale showing 2.02 grams, and 34 photographs of evidence bags and C.V.’s clothing. Without objection, witnesses testified attrial aboutthe evidence bags and the clothing of C.V. and the court admitted photographs of Fisher in handcuffs with police officers standing nextto him. The uncontroverted testimony at trial established the police arrested Fisherat the beach, took him into custody, and placed him in handcuffs. Officer Hubbytestified that he took Fisher into custody and handcuffed him. Officer Bower, Officer Sutton, and the Hovdes also testified that Fisherwas in custody and in handcuffs. Officer Hubby also testified that because the K-9 dog bit Fisher, he took a

15 Fisher refers to the “Temporary Burn Folder” subfolderas the “Wet evidence photos” folder.
28No. 76443-8-1/29

number of photographs of Fisher and his injuries. The court admitted photographs showing the injuries to Fisher. The court also admitted photographs showing Fisher in a hospital bed. The parties stipulated to admission ofa photograph ofa red and black glass pipe, “Exhibit 33,” and a photograph ofa small dark canister and green leafy matter next to the canister, “Exhibit 34.” One photograph in a subfolder on the 911 CD shows 2.02 grams ofa green leafy matter on a scale. The unadmitted photograph shows a similar amount ofgreen leafy matteras Exhibit 34. There was no testimony attrial about the green leafy matter. Assuming the green leafy matter is marijuana, the unadmitted photograph is not prejudicial. The photograph supports the testimonythat Fishersaid he and C.V. were smoking marijuana when she started screaming “rape.” The two photographs of Fisher’s driver’s license are not duplicative of exhibits admitted attrial. Fisher contendsthe photographs are prejudicial because his driver’s license includes his height, weight, the colorof his eyes, and his address. The physical description of Fisherwas not in dispute. Fisher contends the driver’s license information that his eyes are blue and he lives in Edmonds corroborates C.V.’s testimony. C.V. testified she told Officer Sutton that Fisher has “bright” blue eyes. Officer Sutton testified thatwhen he looked at Fisher, he had “intensely blue” eyes. Detective Froland testified that he “had occasion to actually go to [Fisher’s] house” and that Fisher lived in Edmonds. Fisher also argues prejudice because the photographs are unduly cumulative and inflammatory. State v. Crenshaw, 98 Wn.2d 789, 806-07, 659 P.2d 488 (1983).

29No. 76443-8-1/30

Fisher contends the unflattering photographs showing him in handcuffs, dirty, and injured are prejudicial. The photographs are consistentwith the testimony attrial. Although repetitious, none ofthe unadmitted photographs are inflammatory. Fisheralso speculates that one photograph that shows him smiling atthe beach
was prejudicial. June 26, 2016 was a bright, sunny day and Fisher appears to be squinting in all the photographs. The State argues his expression could be attributed to the direction ofthe photograph. As the State notes, Fisher is not smiling or showing his teeth in the other photographs. We conclude there are not reasonable grounds to believe that Fisher may have been prejudiced bythe photographs in the subfolders on the 911 CD exhibit. Fisherargues thejurywas also improperly exposed to the extrinsic evidence of telephone calls he made from jail. Attrial, the prosecutor played the drone footage video ofthe beach and hillside on a laptop computer. Outside the presence ofthejury, defense counsel told the court he could briefly see a separate folderon the screen of the laptop labeled “Jail Phone Calls.”16 Your Honor, I wanted to bring to the Court’s attention something that Ijust saw. I don’t in anywaythinkthis was intentional. It appears to simply be an accident. Butwhen the drone video was not playing, when itwas stopped for maybe a quarter ofa second

— itwas very brief

— I could see whatwas on [the prosecutorj’s laptop, and all ofthe folders were labeled “Jail Phone Calls.” That’s at leastwhat I saw. It appeared to me thatthe jurywas still looking atthat. So nowthey have seen what appears to be at least some information that has not been admitted. I understand itwill not be admitted in the State’s case in chief, and I do have a concern about whatthey saw. Itwas there very briefly. I don’tthink itwas intentional, but something was put up on the video.

16The Jail Phone Calls” folder is not partof Exhibit 133, the drone footage video CD.
30No. 76443-8-1131

The court ruled that even ifthejury sawthe folder label, there was no prejudice, but defense counsel could renewthe objection. Well, I doubt if itwas particularly noticed bythejurors. Itwasn’t something that drew my attention to it, and I don’t see ifthe phone calls themselves aren’t being admitted, thatthere is any particular prejudice. It’s clearthe defendantwas taken into custody, which would imply that he wenttojail. And ifsomeone injail is making phone calls, I think thatwould be something to be expected in the common course of someone who is being detained. So I don’tthink it reflects nowto suggestthat he is in custodyor in jail, and it certainly doesn’t provide any substantive information about any calls that may have been placed to orfrom thejail or received or placed by him. So your concern is noted. You’ve made the record. Ifyou feel that there comes a time when there is something else that relates back to that briefglimpse, you can renewthat objection and help explain howthat may be relevantto something thatyou feel is objectionable. The prosecutortold the court he would “make sure thatthose folders aren’t in the background” when he played the drone video forthejury afterthe noon recess. Defense did not renewthe objection, request a curative instruction, or claim the exposure was grounds fora mistrial. There are no reasonable grounds to believe Fisherwas prejudiced bythejury momentarily seeing a folderon the laptop labeled “Jail Phone Calls.” (3) RAP 2.5(a)(3) Forthe firsttime on appeal, Fisherargues the testimony of K-9 Officer Hubby violated Miranda and his constitutional right to remain silent. The State contends Fisher waived the rightto challenge the testimonyforthe firsttime on appeal on the ground that he cannot establish manifest error. Under RAP 2.5(a), we “may refuse to review any claim oferrorwhich was not raised in the trial court.” But “a party may raise

. . . manifest error affecting a

31No. 76443-8-1/32

constitutional right” forthe firsttime on appellate review. RAP 2.5(a)(3). This exception recognizes that “[c]onstitutional errors are treated specially because they often result in serious injustice to the accused.” State v. Scott, 110 Wn.2d 682, 686, 757 P.2d 492 (1988). But “the exception is not intended as a method ofsecuring a newtrial whenever there is a constitutional issue thatwas not raised at trial.” State v. Lamar, 180 Wn.2d 576, 582, 327 P.3d 46 (2014). [Tb qualify as a claim of manifest error affecting a constitutional right, the defendant must identifythe constitutional error and showthat it actually affected his or her rights at trial. The defendant must make a plausible showing thatthe error resulted in actual prejudice, which means thatthe claimed error had practical and identifiable consequences in the trial. Lamar, 180 Wn.2d at 583. “[Tb determine whether an error is practical and identifiable, the appellate court must place itself in the shoes ofthe trial courtto ascertain whether, given what the trial court knew atthattime, the court could have corrected the error.” State v. O’Hara, 167 Wn.2d 91, 100, 217 P.3d 756 (2009). “Ifthe trial court could not have foreseen the potential error,” the alleged error is not manifest. State v. Davis, 175 Wn.2d 287, 344, 290 P.3d 43 (2012), abrogated on othergrounds by State v. Schierman, Wn.2d 415 P.3d 106 (2018); Gregory, 192 Wn.2d 1. The Washington Supreme Court draws a distinction between the requirements of RAP 2.5(a)(3) and harmless error.

The requirements under RAP 2.5(a)(3) should not be confused with the requirements forestablishing an actual violation ofa constitutional right orforestablishing lack of prejudice under a harmless error analysis if a violation ofa constitutional right has occurred. The purpose ofthe rule is different; RAP 2.5(a)(3) serves a gatekeeping function thatwill bar review ofclaimed constitutional errors to which no exception was made

32No. 76443-8-1/33

unless the record shows thatthere is a fairly strong likelihood that serious constitutional erroroccurred. Lamar, 180 Wn.2d at 583. Before trial, Officer Bower, Officer Peck, and Edmonds Police Officer Samuel Gagnertestified at a CrR 3.5 hearing. Officer Hubby did not. Officer Pecktestified that afterthey “got offthe hillside,” he advised Fisher of his Miranda rights and Fisher invoked his rightto remain silent. Officers searched Fisherand took photographs of him. While Fisherwas in the aid car, Officer Bower asked Fisherwhere he parked his vehicle and Lynnwood Police Sergeant Brault asked Fisherquestions aboutthe K-9 dog injuries. The court ruled the statements Fisher made to police when he was on the hillside
were unsolicited voluntary statements thatwere admissible attrial.17 The court ruled the statements Fisher made after officers brought him down the hill and he invoked his right to remain silentwere inadmissible in the State’s case in chief.18 Attrial, Officer Hubbytestified that after“Fisherwas brought down [the hill] bythe otherofficers after me,” he went up to Fisherand asked, “‘Dude, did you hearthe announcements?’” Officer Hubbytestified that he was “frustrated” because “we had

17 Finding offact 7states, “The defendant made several unsolicited statements to the officers as theywere extracting him from the underbrush and escorting him down the hillside. These statements were not in response to any questions orstatements by officers.” Conclusion of law2 states, “The statements the defendant made atthe time he was first contacted by police on the hillside were unsolicited and not in response to any questions orstatements by the officers.

. . . Those statements are admissible attrial.”

18 Conclusion of law4 states, “The statements the defendant made to Officer Bowerwhile in the back ofthe aid carwere in response to questions from the officerand occurred afterthe defendant had previously invoked his right to remain silent. Those statements are inadmissible in the State’s case-in chiefattrial.” Conclusion of law 5 states, “The statements the defendant made to Sergeant Braultwhile in the back ofthe aid carwere in response to questions from the officerand occurred afterthe defendant had previously invoked his right to remain silent. Those statements are inadmissible in the State’s case in-chiefattrial.” 33No. 76443-8-1/34

just climbed this steep hill. You know, I was scared going up that hill, quite frankly. It

— you don’t knowwho

—you know, when you don’t knowwho you’re dealing with, that
can be a little bit scary attimes.” Officer Hubbytestified, “And I remember him saying something to the effect of, ‘Yeah, I did.’

I said, “Whydidn’tyou come out? Like, why didn’t you call outto us?” And Mr. Fisher responded that

— atthat point, and I have it quoted, but I don’twantto mess it up, but something to the effect of, “Because she was yelling rape.” Fisher concedesthe statement Fisher made that C.V. yelled “rape” was cumulative and admissible. Fisher claims Officer Hubby’s statementthat he heard the police but did not respond “showed consciousness ofguilt.” Butthe record shows Officer Bower and Officer Pecktestified to similaradmissible statements. Officer Bower also testified thatwhen theyfound Fisher on the hillside, Fisher said, “I knewthe dog and you guys were going to find me” and, “That bitch. We were smoking weed, and she yelled rape, and I gotthe fuck out ofthere.” Officer Peck testified thatwhen he and the otherofficers were “roughly halfway up the hillside,” he heard a male voice say, “Here I am. And Come getyourdog.” Officer Pecktestified that Fisher said he “knewthe K-9 and officers would find him, and then he also said that he had been with a female and asked ifshe wanted to smoke, and that she had yelled rape. So he went up the hillside.” Because the statements Fisher made to Officer Hubby occurred after he invoked his rightto remain silent, Officer Hubby’s testimony implicates the Fifth Amendment right to remain silent. U.S. CONST. amend. V. However, Fisher cannot showthe error had practical and identifiable consequences attrial.

34No. 76443-8-1/35

(4) Cumulative Error Fisher contends the cumulative error doctrine warrants reversal. Cumulative
error maywarrant reversal even ifeach errorstanding alone would otherwise be considered harmless. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). But where, as here, the errors have little or no effect on the outcome ofthe trial, the doctrine does not apply. Weber, 159 Wn.2d at279. Legal Financial Obligations Fisherfiled a supplemental assignment of errorto strike the $200 criminal filing fee. In 2018, theWashington State Legislature amended the legal financial obligation statutes. LAWS OF 2018, ch. 269. The amended criminal filing fee statute states: Upon conviction or plea ofguilty, upon failure to prosecute an appeal from a court of limitedjurisdiction as provided by law, or upon affirmance ofa conviction by a court of limited jurisdiction, an adult defendant in a criminal case shall be liable fora fee oftwo hundred dollars, exceptthis fee shall not be imposed on a defendantwho is indigent as defined in RCW 10.101.010(3) (a) through (c). RCW 36.18.020(2)(h). In State v. Ramirez, 191 Wn.2d 732, 747, 426 P.3d 714 (2018), the Washington Supreme Court held the 2018 amendments to the legal financial obligation statutes applyto cases “pending on direct review and thus notfinal when the amendments were enacted.” Because the record establishes Fisherwas indigent atthe time of sentencing, we remand to strike the $200 criminal filing fee from thejudgment and sentence.

35No. 76443-8-1/36

We affirm thejury convictions ofattempted rape in the second degree and attempted murder in the first degree but remand to strike the $200 criminal filing fee.



### ~Qi_cQ9~o~ WE CONCUR: 

# i~Q~

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