### FILED 

## COURTOFAPPEALS DIVISION II 2615 

### FEB 24 

### AM 9: 25 

### STATE OF WASHINGTON BY IN THE COURT OF APPEALS OF THE STATE OF WIA YNGTON. DIVISION II STATE OF WASHINGTON,Respondent,

v. LEANNE MICHELLE BECHTEL, Appellant. No. 44337 - 6 -II

UNPUBLISHED OPINION

MAxA, J. — Leanne Bechtel appeals her conviction for second degree murder for the death ofher former boyfriend' s daughter, AF.1 She argues that the trial court erred underthe

Frye2 test and ER 702 by allowing the State' s biomechanics expert to testify. She also argues 

### thatthetrial court erred by allowing the expert to showthejury an illustrative reenactment of Bechtel' s account ofhow AF' s injuries occurred and by denying her motion for a newtrial on 

### grounds that thejury committed misconduct regarding the playback ofa 911 recording admitted into evidence. 

### We hold that (1) the expert' stestimony was based on generally accepted principles in the relevant scientific field, and Bechtel' s challenge to his specific conclusions did not implicate the Frye test; (2) the trial court did not abuse its discretion by determining that the expert' s opinion


### 1 AF is a minor and is referred to by her initials.
2 Frye v. United States, 293 F. 1013 ( D.C. Cir. 1923).44337 - 6 -II

was helpful to thejury under ER 702; (

### 3) the trial court did not abuse its discretion by allowing the expert' s reenactment as demonstrative evidence; and (4) the trial court did not abuse its 

### discretion by denying Bechtel's motion fora newtrial based on allegedjuror misconduct. Accordingly, we affirm Bechtel' s conviction. FACTS In April 2008, Bechtel lived with her boyfriend, Chris Franks, his two young children, 

### and a large dog. One ofthose children was AF, a 3-year - old girl. One morning, while Bechtel and AF were home alone, Bechtel called 911 and reported thatthe dog had knocked AF offa 

### couch, causing AF to hit her head against the ground. Bechtel said thatAF was unresponsive, 

### which was soon confirmed by emergency responders. AF was taken to the hospital,where doctors found signs ofbrain damage, a massive skull fracture, intracranial bleeding, and severe 

### cerebral swelling. Bechtel repeated the story about the dog knocking AF offthe couch to Franks, doctors, a social worker, and the police. AF died as a result ofher injuries. 

### The doctors who treated AF suspectedthat her injuries were not caused by accidental contactwith a dog. Even while AF was in the hospital, police were investigating the possibility 

### ofchild abuse by interviewing Bechtel and searching the apartment. Nearlythree years later,the State charged Bechtel with second degree murder on afelony murdertheory stemming from
assault of a child. 

### Throughout the resulting trial, Bechtel maintained through her attorney thather story 

### aboutthe dog knocking AF from the couch was true. Bechtel argued that her storywas at least plausible enough to give rise to reasonable doubt that she harmed AF. However, Bechtel did not testify at trial.
244337 - 6 -II Because the State had no direct evidence that Bechtel assaulted AF, the State relied 

### heavily on experttestimony attrial. One ofthe State' s experts was biomechanics professor Dr. Wilson Hayes, who held an opinion that AF' s injuries were caused by a tremendous impact, one 

### much strongerthan would be expected to result from even an accelerated fall from acouch.3 Bechtel moved pretrial to exclude Hayes' testimony on grounds that it was unhelpful and 

### unduly prejudicial. Inthe alternative, Bechtel requested thatthe trial court hold aFrye hearing to determine whether Hayes' methods were reliable. The trial court declined to conduct a Frye 

### hearing and ruled that Hayes could testify as to the biomechanics ofthe defense theory ofevents. Butthe trial court excluded under ER 702 testimony on a concept Hayes called the "factor of
risk," which quantified whether a particular injury was more probable than not under certain conditions. Report of Proceedings at 167. At trial, Hayes testified as to whether the events Bechtel described could produce AF' s 

### injuries. He reconstructed the events using Bechtel' s account to police, the laws ofphysics, and studies ofthe forces required to produce certain injuries in adult populations. He compared those 

### reconstructed events to AF' s documented injuries. He used slides to visually demonstrate his 

### analysis to thejury, and the slides included illustrations ofhis reconstructions. He ultimately testified that in his opinion, Bechtel' s version of events was incompatible with AF' s documented. 

### injuries. On cross -

examination, Bechtel attacked Hayes' analysis, focusing especially on the potential issues with using general population data in his analysis.
3 The State also called as witnesses attrial the physicians in AF' s treating medical team, the 

### physician who conducted AF' s autopsy, and a renowned forensic pathologist from Philadelphia. These experts also believed that AF' s injuries were inconsistent with Bechtel' s version ofthe incidefit. 344337 - 6 -II The defense called its own biomechanics expert, Dr. Colin Daly. Dalytestified that 

### Hayes used formulae and tests commonly used in the field ofbiomechanics, but also that Hayes erred in his application ofthose formulae and tests. Daly admitted that Hayes had based his 

### analysis on data generally accepted in the field ofbiomechanics. But Daly challenged the accuracy ofHayes' analysis. 

### After closing arguments, the parties agreed thatthejury could listen to an audio recording 

### ofBechtel' s 911 call during deliberations. The trial court arranged to have the recording played in the courtroom adjacent to thejury deliberation room, but closed the courtroom to everyone except thejurors. The door remained open between the courtroom and thejury deliberation room during playback. 

### Following deliberations, thejury found Bechtel guiltyas charged. After thejury delivered its verdict, Bechtel' s counsel spoke withjurors who stated that some jurors were in the 

### courtroom and some were in thejury deliberation room during playback ofthe 911 recording. 

### Bechtel moved for anew trial based on her attorney' s affidavit describing what thejurors told him. The trial court denied the motion. Bechtel appeals her conviction and the trial court' s denial ofher motion for a new trial. ANALYSIS A. ADMISSIBILITY OF EXPERT TESTIMONY Bechtel concedes that Hayes was a qualified expert in the field ofbiomechanics. 

### However, she argues thatthe trial court erred in admitting his testimony regarding the likelihood thatAF' s injuries were caused by being knocked offthe couch by the dog because ( 1) Hayes'

444337 - 6 -II 

### opinions were not generally accepted in the scientific community, and (2) the testimony was not 

### helpful tothejury andtherefore was inadmissible under ER 702. We reject both arguments.

1. General Principles Expert testimony generally is admissible if ( 1) the witness is qualified as an expert, (2) 

### the expert relies on theories that are generally accepted in the scientific community, and (3) the 

### testimonywould be helpful to the trier offact. Johnston - Forbes v. Matsunaga, 181 Wn.2d 346, 352, 333 P. 3d 388 ( 2014). The second requirement involves application ofthe Frye test, and the third requirement involves application of ER 702. See Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909, 918, 296 P.3d 860 (2013). The Frye test and ER 702 address different aspects ofadmissibility, but work together to regulate expert testimony. " Frye excludes testimony based on novel scientific methodology until a scientific consensus decides the methodology is reliable; ER 702 excludes testimony where the
expert fails to adhere to that reliable 

### methodology." Lakey, 176 Wn.2d at 918 -19.

2. General Acceptance of Expert' s Theories 

### Bechtel argues that Hayes formed his opinion using methodologies not generally accepted in the field of biomechanics. Therefore, she argues that the trial court should have 

### excluded his testimonybased on a Frye'analysis. We disagree.

a. Application of Frye 

### Ifan expert'stestimony is based on a novel scientific theory,trial courts employthe Frye test to determine whetherthe testimony is admissible. Anderson v.Akzo Nobel Coatings, Inc., 172 Wn.2d 593, 600 - 02, 260 P. 3d 857 ( 2011). Under this test, the trial court determines whether

544337 - 6 -II 

### the theory and the underlying methodology have been generally accepted in the relevant scientific community. Id.at 601, 603. However, the Frye test focuses on general scientific theories, not particular opinions based on those theories. Our Supreme Court has emphasized that " Frye does not require every deduction drawn from generally accepted theories to be generally accepted." Anderson, 172 Wn.2d at 611. Ifan expert' s specific opinions are grounded in generally accepted science, Frye is not implicated. Id. at 611 -12. " [ l] he application of accepted techniques to reach novel

conclusions does not raise Frye concerns." Lakey, 176 Wn.2d at 919. 

### We review de novo questions ofadmissibility under Frye. Anderson, 172 Wn.2d at 600. 

### We also review de novo atrial court' s denial ofa Frye hearing, because denial ofthe hearing is tantamountto a decision thatthe Frye test either has been satisfied or does not apply as a matter of law. In re Det. ofBerry, 160 Wn.App. 374, 378, 248 P.3d 592 (2011).

b. Opinions Based on Biomechanics 

### Biomechanics analysis is commonly accepted by Washington courts, and the underlying 

### science is not novel. See, e.g.,Johnston-Forbes, 181 Wn.2d at 353; Ma'ele v.Arrington, 111 Wn.App. 557, 560 - 61, 45 P. 3d 557 (2002). And Hayes based his analysis on biomechanics 

### studies and the laws ofphysics, all ofwhich are generally accepted in the field ofbiomechanics. Bechtel argues that even ifthe general biomechanical analysis Hayes used to determine 

### the connection between impact force and injuries is generally accepted in the scientific 

### community, Hayes' methodology in this case is not generally accepted as required under Frye. Br of Appellant at 24. 

### Specifically, Bechtel focuses on Hayes' use ofadult skull force tolerance datato render opinions regarding the effect offorce on a young child' s skull. Bechtel points out 644337 - 6 -II that some biomechanics researchers have warned against drawing conclusions about pediatric injuries from data traditionally used to assess adult injuries. She argues that major limitations 

### existwhen comparing adult skulls to pediatric skulls and thatthe literature indicates that the mechanical properties ofpediatric skulls are unknown.4 Therefore, Bechtel claims that opinions 

### based on a biomechanical analysis involving a pediatric skull cannot be made with scientific certainty. 

### However, Hayes testified that his methodology for developing his opinions was grounded in settled biomechanics principles. Because there is insufficient data on the force tolerance of
pediatric skulls, Hayes derived his data 

### by scaling available adult data, " accounting for 

### geometric and material property differences specificto cranial sutures "5 at different ages. Clerk' s Papers at 167. In his report, Hayes cited to a biomechanics textbook that describes in detail those 

### geometric and property differences atthe various stages ofskull development and outlines the methods used to scale the data. See Narayan Yoganandan et al., Pediatric Biomechanics, in ACCIDENTAL INJURY: BIOMECHANICS AND PREVENTION, 564 - 579 ( Alan M. Nahum & John W. Melvin eds., 2000). 

### Bechtel has not shown that Hayes' scaling methods departed from the



### 4 Bechtel similarly argues that Hayes inappropriately incorporated into his analysis datafrom studies that included potentially relevant design limitations. But Bechtel does not question the principles and techniques underlying those studies ortheir use in biomechanics analyses 

### generally. Instead, she again claims that Hayes' use ofthe resulting data in this particular case was inappropriate. This argument does not implicate Frye. 5 Cranial sutures are the fibrous spaces between the plates on a child' s developing skull that ossify with age. 744337 - 6 -II 

### methodology described in thattextbook.6 Other literature Hayes cited in his report explains that scaling is an accepted technique in the field ofbiomechanics. See, e.g.,Michael T. Prange et al., Mechanical Properties andAnthropometry ofthe Human Infant Head,48 STAPP CAR CRASH J. 1, 2 ( 2004) ( "

### Because of [the] paucity ofpediatric data, scaling methods have been employed to determine the head injury tolerance of the child based on adult data. "). The record does not 

### showthat Hayes' scaling methods departed from standard practices in his field. In effect, Bechtel' s argument is that because ofthe lack of data regarding the effect of force on a child' s skull, there is a risk that Hayes' opinions were unreliable. But issues with the 

### adequacy ofparticular data are properly addressed under ER 702, not Frye. See State v. Gregory, 158 Wn.2d 759, 829 - 30, 147 P.3d 1201 ( 2006), 

### overruled on other grounds by State.v. W.R., Jr., 181 Wn.2d 757, 336 P. 3d 1134(2014). And "[ i]fthe methodology is sufficiently accepted in the scientific community at large, concerns aboutthe possibility of error or mistakes
made in the case at hand can be argued to the factfinder." State v. Russell, 125 Wn.2d 24, 41, 882 P.2d 747 ( 1994). Because the methods and principles underlying Dr. Hayes' analysis were not novel, we hold that the Frye test was inapplicable. Therefore, we affirm the trial court' s denial of Bechtel' s motions for a Frye hearing and to exclude Hayes' expert testimony.

6 Bechtel points out thatthis same textbook warns that there are significant limitations to the use 

### ofage scaling and that pediatric data may be too sparse to draw firm conclusions in individual cases. But because the techniques and principles ofage scaling are not novel, this argument does not implicate Frye. Instead, it relates either to admissibility under ER 702 orthe weight ofthe evidence.44337 - 6 -II
3. Admissibility Under ER 702 Bechtel argues that Hayes' testimony was not helpful to thejury. Therefore, she argues that the trial court should have excluded his testimony under ER 702. We disagree.

a. General Principles ER 702 generally governs the admissibility ofexpert testimony. Anderson.,172 Wn.2d at 600. ER 702 provides that testimony based on " scientific, technical, or other specialized knowledge" is admissible ifthe trial court determines that it "will assist the trier of fact to
understand the evidence or to determine a fact in issue." Accordingly, expert testimony usually is admissible under ER 702 if it will be " helpful to thejury in understanding matters outside the
competence of ordinary lay persons." Anderson, 172 Wn.2d at 600.

On the other hand, "[ 

### b]efore allowing an expertto renderan opinion,the trial court must find that there is an adequate foundation so that an opinion is not mere speculation, conjecture, or misleading." Johnston - Forbes, 181 Wn.2d at 357.. Conclusory or speculative opinions that lack 

### adequate foundation will not assistthejury and must be excluded. Stedman v. Cooper, 172 Wn. App. 9, 16, 292 P.3d 764 (2012).

Trial courts have broad discretion to determine the circumstances under which expert 

### testimony will be allowed. Johnston - Forbes, 181 Wn.2d at 354. Accordingly,we reviewthe trial court' s decision whetherto admit expert testimony under ER 702 for an abuse ofdiscretion. State v. Green, 182 Wn. App. 133, 146, 328 P. 3d 988, review denied, 337 P.3d 325 ( 2014). As 

### long as helpfulness is fairly debatable, atrial court does not abuse its discretion by allowing an expert to testify. Miller v. Likins, 109 Wn.App. 140, 147, 34 P. 3d 835 ( 2001). And even where 

### the helpfulness ofexpert testimony is doubtful, courts favor admissibility. State v. King County
944337 - 6 -II
Dist. Court W. Div., 

### 175 Wn.App. 630, 638, 307 P.3d 765, review denied, 179 Wn.2d 1006 2013). 

### Determining the admissibility ofexperttestimony depends upon the specific facts ofeach

case. Johnston -

Forbes, 181 Wn.2d at 354. And "[t]he broad standard of abuse of discretion means that courts can reasonably reach different conclusions about whether, and to what extent,

an expert' s testimony will be helpful to thejury in a particular case." Stedman, 172 Wn.App. at 18. b. ER 702 Analysis Bechtel challenges the helpfulness ofHayes' testimony on four general grounds: that Hayes' opinion ( 1) was based on speculation, (2) misleadingly drew conclusions about individual circumstances from generalized population data, (3) was based on unreliable scaling techniques, and (4) commented on Bechtel' s credibility.

i. Opinion Based on Speculation Bechtel argues that Hayes' opinions were based on approximations and assumptions 

### instead ofestablished facts. According to Bechtel, Hayes' opinion was improperly speculative 

### because important variables, such as the dog' s running speed and the exact location atwhich 

### AF's body cameto rest on the floor,were unknown. But Hayes testified as to how he reconstructed those unknown variables from other evidence, including photographs and diagrams ofthe crime scene and studies of animal movement and motor vehicle accidents. He also 

### explained the effects ofusing plausible alternative values forthosevariables, in effect describing avariety ofrelated hypothetical scenarios. For each such scenario, Hayes' ultimate opinion was

1044337 - 641
the same —

### the defense' s story ofthe events leading to AF's injuries was incompatible with the causation ofthose injuries. 

### Hayes did not rely on pure speculation to produce any ofthe variables in his analysis. He constructed hypothetical scenarios based on known facts, the defense theory ofevents, and the results ofscientific studies. We hold that Hayes' opinion was not founded on mere speculation, and thatthe trial court did not abuse its discretion in determining that there was aproper factual foundation for his testimony.

ii. Use of Generalized Population Data Bechtel argues that some ofthe studies on which Hayes relied involved generalized 

### population data even though variability exists among individuals, and therefore that Hayes' 

### testimonywas misleading. Courts may exclude evidence that is likelyto mislead thejury, and the trial court in this case could have excluded Hayes' testimony on these grounds without abusing its discretion. See Stedman, 172 Wn. App. at 21. In Stedman, Division One of our court 

### held that a biomechanics expert's opinion formed using generalized population data derived from studies ofdiffering subjects can mislead thejury,and that atrial court "may regard such an opinion as more likely to be misleading than helpful." 172 Wn.App. at 20 - 21. However, the

court in Stedman did not hold that a trial court must — or even should — regard such an opinion as unduly misleading. 

### Bechtel essentially argues thatwe should go further thanthe Stedman court and findthat atrial court abuses its discretion as a matter of law by allowing expert testimony based upon generalized population data. We decline to broaden the Stedman rule as Bechtel suggests.

1144337 - 6 -II
iii. Reliability of Scaling Techniques 

### Bechtel argues that.Hayes unreliably scaled data from experiments involving adult skulls to render opinions regarding the effect offorce on ayoung child' s skull, even though the mechanical properties ofthe pediatric skull have not been fully studied. She claims that the limitations inherent in the use ofscaled data renders Hayes' opinions unhelpful. See Gregory, 158 Wn.2d at 830. 

### As with the use ofgeneralized population data,the trial court reasonably could have 

### excluded Hayes' expert testimony based on the scaled data due to the limitations noted in the 

### scholarly literature. See Stedman, 172 Wn. App. at 21; see also, e.g.,Yoganandan et al., Pediatric Biomechanics, at 576. Bechtel quotes a number ofpassages discussing the limitations 

### inherent to age scaling techniques. Butthese sorts oflimitations are not so severe as to make the 

### resulting analysis unhelpful beyond any fair debate. In fact,the literature before us shows that scaling adult data produces fairly accurate results. See, e.g.,Prange et al., Mechanical Properties 

### andAnthropometry ofthe Human Infant Head,at 14. Because the helpfulness ofthe scaled data was at least fairly debatable when the trial court ruled it admissible, we reject this argument.

iv. Expert Opinion on Defendant' s Credibility 

### Bechtel argues that Hayes' testimony should have been excluded because it improperly addressed Bechtel' s credibility. Expert testimony that comments on the credibility ofa witness 

### impermissibly invades thejury's factfinding function. Green, 182 Wn.App. at 147; see also State v. Fitzgerald, 39 Wn.App. 652, 657, 694 P.2d 1117 ( 1985) ( " It is improper for an expert to 

### base an opinion about an ultimate issue offact solely on the expert' s determination ofawitness' s

1244337 - 6 -II veracity. "); 5B KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE § 704. 10, at 284 -

285 ( 5th ed. 2007). The cases Bechtel cites for this argument involved witnesses actually testifying as to the guilt of a defendant. See State v. Black, 109 Wn.2d 336, 349, 745 P.2d 12 ( 1987); State v. Garrison, 71 Wn.2d 312, 315, 427 P. 2d 1012 ( 1967). But Hayes testified only that the story of 

### events presented by the defense was incompatible with AF' s injuries. He did not comment, directly or indirectly, on any particular witness' s credibility. Therefore,the trial court was not obligated to exclude Hayes' testimony on that basis. We hold that the trial court did not abuse its discretion by declining to exclude Hayes' expert testimony under ER 702. B. USE OF DEMONSTRATIVE EVIDENCE Bechtel argues that the trial court abused its discretion by allowing Hayes to show the 

### jury an animated reenactment demonstrating the factual scenario he analyzed. She claims that the information he used to create the reenactment was unreliable and the demonstrative evidence was speculative, and therefore the potential prejudicial effect ofthe reenactment exceeded its probative value. We disagree. 

### A trial court may admit demonstrative evidence as long as the experimental conditions are substantially similarto the facts ofthe case and the probative value ofthe evidence outweighs its prejudicial effect. State v. Hultenschmidt, 125 Wn. App. 259, 268, 102 P.3d 192 2004). 

### Where any differences between the facts ofthe case and the demonstrative evidence are made clear at trial, atrial court may allow awitness to use that evidence. Jones v. Halvorson - Berg, 69 Wn. App. 117, 126 - 27, 847 P. 2d 945 ( 1993). Any dissimilarity ultimately goes to the
1344337 - 6 -II

weight of the evidence. State v. Finch, 137 Wn.2d 792, 816, 975 P. 2d 967 ( 1999). We review the trial court' s decision to allow demonstrative evidence under an abuse of discretion standard. 

### State v. Hunter, 152 Wn.App. 30, 41, 216 P.3d 421 (2009). Bechtel asserts that the information underlying Hayes' analysis may not have been 

### substantially similarto the facts ofthe case, and therefore that the demonstrative evidence was misleading. Because Hayes' presentation illustrated the hypothetical scenario he analyzed, and was not a reenactment ofknown events, it included elements not established by other evidence in the case. But Hayes explained his inclusion ofthese elements and the sources and methods he used to construct them. In context, there was little risk of confusion as to what the slides showed. And the slides had value to thejury as it followed Hayes' highly technical testimony. The presentation' s prejudicial effect was minimal, but its demonstrative value was high. 

### We hold that the trial court did not abuse its discretion by finding thatthe probative value ofthe slides outweighed the prejudicial effect and potential to mislead thejury.

C. JUROR MISCONDUCT Bechtel argues thatthe trial court abused its discretion by denying her motion for a new trial based onjuror misconduct. She argues that the trial court should have granted the motion 

### because thejury (1) violated RCW 4.44.300 and (2) improperly emphasized the 911 call to the exclusion of other evidence. We disagree with both arguments. CrR 7. 5( a)( 2) allows a trial court to grant a new trial because ofjury misconduct. 

### However, a newtrial is warranted only when the defendant has been so prejudiced that only a newtrial can insure thatthe defendant has been fairly tried. State v. Bourgeois, 133 Wn.2d 389, 406, 945 P.2d 1120 ( 1997). We review for an abuse of discretion a trial court' s denial of a
1444337 - 6 -II

motion for a new trial. State v. Pete, 152 Wn.2d 546, 552, 98 P. 3d 803 ( 2004). A trial court 

### abuses its discretion by reaching a conclusion no reasonablejudge would reach. Id. We will reverse atrial court' s denial of a new trial motion only where the moving party clearly shows that the trial court abused its discretion. Id.

1. Violation of RCW 4.44.300 

### Bechtel argues thatthejuryviolated RCW 4.44.300 by separating during deliberations without the court's approval. We hold that Bechtel did not showthatthejury separated.

RCW 4.44.300 provides that: 

### Unless the members of a deliberating jury are allowed to separate, they must be kept together in a room provided for them, or some other convenient place under the charge of one or more officers, until they agree upon their verdict, or are discharged by the court. 

### Ifthejury separates during deliberations in a criminal case inviolation of . RCW4.44.300, the defendant is presumptivelyprejudiced. State v. Smalls, 99 Wn.2d 755, 766, 665 P.2d 384 1983). Ifthe State cannot rebut the presumption ofprejudice, the trial court must grant the defendant a new trial. Id. at 767. 

### Here, during playback ofthe 911 recording, some ofthejurors were in the courtroom and some were in the adjacentjury deliberation room. Bechtel argues that this constituted separation 

### ofa deliberatingjury within the meaning ofRCW 4.44.300. However,the record indicates that the trial court essentially expanded thejury deliberation room to include the courtroom for purposes ofplaying the 911 recording. Onlythejurors were allowed in the courtroom and the door between the two rooms remained open throughout the playback ofthe 911 recording. Based on these facts, the trial court found that for the duration ofthe playback the two rooms

1544337 - 6 -II


### were effectively asinglejury deliberation room within the meaning ofRCW 4.44.300. In addition, there is no evidence thejurors deliberated in separate groups or discussed the case at all during the playback ofthe recording. We hold thatthe courtroom was effectively an extension ofthejury deliberation room 

### during the playback ofthe 911 recording, and therefore thejury did not separate during deliberations. Accordingly,we hold thatthejury did notviolate RCW 4.44.300 and the trial 

### court did not abuse its discretion in denying Bechtel' s motion for a newtrial on this basis.

2. Improper Emphasis 

### Bechtel argues that thejury committed misconduct because having only afewjurors listen to the 911 recording allowed thosejurors to improperly emphasize that recording. We disagree. 

### In general, atrial court may not inquire into the mental processes ofdeliberatingjurors, including the weight given to any particular evidence. State v. Jackman, 113 Wn.2d 772, 777- 78, 783 P.2d 580 ( 1989). 

### Admitted evidence maybe used by a deliberatingjury as it sees fit. State v. Elmore, 139 Wn.2d 250, 294 - 95, 985 P.2d 289 ( 1999); State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 ( 1997). Bechtel relies on State v. Koontz, in which our Supreme Court held that a trial court 

### abused its discretion by allowing a deliberatingjuryto viewvideo recorded testimony without taking precautions to ensure that thejury would not unduly emphasize the testimony.? 145


### 7 Bechtel seems to argue thatthatthejury did not followthe court's instructions intended to minimize undue emphasis. But the record does not showthat the trial court actually instructed 

### thejurors thatthey had to remain in the courtroom during playback. Therefore, Bechtel cannot showthatthejurors committed misconduct by failing to follow the court' s instructions. 1644337 - 6 -II
Wn.2d 650, 660, 41 P. 3d 475 ( 2002). But as the court in Koontz made clear, ajury may emphasize admitted recordings —as opposed to recorded testimony — as it wishes. 145 .Wn.2d at 659; see also State v. Oughton, 26 Wn.App. 74, 82, 612 P. 2d 812 ( 1980) ( holding that admitted 

### audio recordings must be made available to thejury for review during deliberations). Here, the 911 audio recording was admitted, sojurors were free to review it as they deemed appropriate. As a result, thejurors who chose not to listen to the 911 recording slid not commit misconduct, and the trial court did not abuse its discretion in denying Bechtel' s motion for a new trial on that basis.

We affirm Bechtel' s conviction. 

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

We concur:

LEE, J.

17