IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON cro COO cj'i y>~-: STATE OF WASHINGTON, ) Respondent, ]

v. No. 72262-0-1 DIVISION ONE en "

DANNY C. PARK, UNPUBLISHED OPINION sr < 

## Appellant. j FILED: November 16, 2015 Becker, J. — Appellant's right to a fair trial was not violated when the trial court allowed the child victim to testify holding her mother's driver's license. And the prosecutor's closing arguments did not misstate the law or express a personal opinion. We affirm the conviction. 

### A jury found appellant Danny Park guilty ofone count of luring a minor with sexual motivation. This appeal followed. Child witness The trial court allowed the 10-year-old child witness to hold her mother's driver's license while testifying before thejury. Park contends this was a violation of his due process right to a fair trial. A trial court has "broad discretion to make



### a variety of trial managementdecisions." State v. Dye, 178 Wn.2d 541, 547, 309 P.3d 1192 (2013). This broad discretion includes "control overthe mode andNo. 72262-0-1/2 

### order ofinterrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment ofthe truth, (2) avoid needless consumption oftime, and (3) preventwitnesses from harassment

or undue embarrassment." ER 611(a). We review for abuse ofdiscretion. Dye. 178 Wn.2d at 547-48. In State v. Hakimi, 124Wn. App. 15. 98 P.3d 809 (2004), review denied, 154Wn.2d 1004 (2005), this courtfound thatthe trial court did not abuse its discretion in allowing two child victims to hold a doll while testifying. In Dye, the Washington Supreme Court held that the trial court acted within its broad discretion in allowing a severely developmentally disabled man, who functioned 

### atthe mental capacity of a child, to testify with a facilitydog provided by the prosecutor's office. Dye, 178 Wn.2d 541. Here, when first attempting to testify at trial, the child became upset, started to cry, and was unable to continue testifying. Thejudge conducted an off-the-record sidebarwith both parties and then allowed herto testify while holding her mother's driver's license. Thejudge later described this sidebar discussion for the record: "We discussed the fact that I believe it was the 

### Supreme Court had indicated that a dog is not inappropriate ifthe dog serves to comfort a vulnerable witness, and the court indicated that that card was the equivalent ofthe dog and that itwas helping the witness to calm down and to 

### provide herwith reassurances andjustice. With a dog situation, the courtdidn't feel thatthe card crossed the line inthe sense that itwould unduly inflame the passions ofthejury."No. 72262-0-1/3 Park argues thatthe trial courtfailed to balance the child's needs with the 

### risk ofprejudice to him before allowing herto testify holding her mother's driver's license. In Dye, the trialjudge reasoned thatthe victimwas a "'developmentally 

### disabled individual who has
. . . significantemotional trauma'" and thatthe dog would be "'very unobtrusive, willjust simply be nextto the individual, not be laying [sic] in his lap, and ifwe can accommodate somebody who has a developmental disability when they're testifying inthe courtroom Ithink it's appropriate to do so.'" Dye, 178 Wn.2d at 546 (alterations in original). This was
an appropriate balancing ofcompeting interests. Dye, 178 Wn.2d at 557 ("the 

### trial court balanced the competing factors appropriately"). In Hakimi, this court approved the trialjudge's reasoning that "'children do presentdifferent issues 

### and different considerations interms of being witnesses in different cases. They have a peculiar need to find some security in an otherwise insecure setting, I suspect. Idon'tthinkthe doll unduly prejudices, to the extentitprejudices anyone at all; so Iwill allow it.'" Hakimi. 124 Wn. App. at 20-21. The trialjudge's balancing ofcompeting interests in this case was very similarto the balancing approved in Dye and Hakimi. Thus, the balancing was proper. Park also argues that the trial courtfailed to take sufficient measures to 

### reduce the risk ofprejudice to him. The child was brieflyquestioned regarding the driver's license at the beginning of hertestimony. There is no evidence inthe record thatthe driver's license was broughtto the attention ofthejury again. It is "the responsibility of a party alleging errorto create a record ofthat error.. . . This court is not in a position to speculate about what mighthave happened atNo. 72262-0-1/4 

### trial." Dye, 178 Wn.2d at 556. We conclude thatthe trial courtproperly minimizedjury exposure to the license. 

### Park suggests that a limitingjury instruction should have been given as a safeguard against potential prejudice. In Dye, the trialcourt instructed thejury not to "'make any assumptions or draw any conclusions based on the presence 

### of this service dog.'" Dye, 178 Wn.2d at 556. However, Dye did not hold that a limitingjury instruction was required, nor did its decision hinge on the fact that such an instruction was given. The comfort item in this case—a small plastic 

### driver's license—was inherently less prejudicial than the "adorable" golden 

### retriever in Dye. Dye. 178 Wn.2d at 559 (Gordon McCloud, J., concurring). In Hakimi. although the trialcourtdid not give thejury a limiting instruction, this court upheld the decision to allow the child victims to testify holding a doll. Holding her mother's driver's license calmed the child and allowed herto 

### testify, which enhanced the truth-seeking goal ofthe trial and permitted the trial to move forward. The trial court considered potential prejudice to Park and properly minimized it. We find no abuse ofdiscretion. Prosecutor's closing argument 

### Park contends the prosecutorcommitted misconduct inclosing argument. An appellant claiming prosecutorial misconduct must establish both improper conduct and resulting prejudice. State v. McKenzie. 157 Wn.2d 44, 52, 134 P.3d 221 (2006). Prejudice exists only where there is a substantial likelihood thatthe misconduct affected thejury's verdict. State v. Pirtle. 127 Wn.2d 628, 672, 904 P.2d 245 (1995), cert denied, 518 U.S. 1026 (1996). We review a prosecutor'sNo. 72262-0-1/5 

### arguments during closing argument inthe context ofthe total argument, the issues inthe case, the evidence addressed inthe argument, and thejury 

### instructions. State v. Russell. 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994), certdenied. 514 U.S. 1129 (1995). Failure to objectto alleged prosecutorial misconduct attrial waives any error unless the misconduct is so flagrant and illintentioned that no instruction could have cured the prejudice. State v. Emery. 

### 174Wn.2d 741, 760-61, 278 P.3d 653 (2012). The prosecutortold thejury, "I do not need to prove to you beyond a reasonable doubt.
. . whether Mr. Park did this act knowingly or with intent, which is a differenttype ofcrime." Park claims thatthese remarks misstated the 

### law regarding the mental state required for a luring conviction. A person commits the crime of luring ifhe "orders, lures, or attempts to lure a minor" into or away from specified areas. RCW 9A.40.090(1 )(a). The plain language ofthe statute does not include any intent or specific mens rea. Ourcourts have already held thatthe luring offense does not require proofof intent. See State v. Homan. 181 Wn.2d 102, 107, 330 P.3d 182 (2014) ("RCW 9A.40.090 does not require proofofunlawful purpose or intent."); State v. Dana. 84 Wn. App. 166, 177, 926 P.2d 344 (1996) ("there is no intent elementto luring."), review denied. 133 Wn.2d 1021 (1997). The legislative history ofthe luring statute also indicates that luring is a strict liabilitycrime. Dana. 84 Wn. App. at 166n.28. Park was convicted underthe "attempts to lure" language ofthe statute. 

### He argues that "attempt" requires an intentional or goal-oriented mindset.No. 72262-0-1/6 Where the word "attempt" inthe statute has nothing to do with criminal attempt, itmust be given its ordinary meaning of "to try." State v. Gallegos. 73 Wn. App. 644, 650, 871 P.2d 621 (1994). Black's Law Dictionarydefines attempt

as the "act or an instance ofmaking an effortto accomplish something, esp. without success." Black's Law Dictionary 152 (10th ed. 2014). This definition does not require an intentional or knowing mental state. Rather, itrefers to the 

### "act" or "instance" of trying. Because the luring statute does not require the State to prove that one who "attempts to lure" has any specific mens rea, the prosecutordid not misstate the law. Park also claims thatthe prosecutor argued his personal opinion. In closing, the defense argued thatthis "is not a luring case." Inrebuttal, the prosecutor stated that it"sounds like a luring case to me." To simply say that this is not a luring case, you maybe ask the next question which is sort ofwhat is that based upon. Why would we say this is a luring case? Right. You sort of have to ask yourself the next question. Well, ifIrememberthe evidence and the testimony, I'm sure there was discussion ofbeer and cigarettes from Lucas Schmidtwho we also know directly from [E.H.] that there was mention ofcigarettes and candy. What else do we know? We also know that this man asked 

### that littlefourth-grader ifshe would have sex with him. And where would this take place? He asked herto go back to his place, to his house as described by [E.H.]. Itsounds like a luring case to me. Misconduct occurs when the prosecutorexpresses an "independent, 

### personal opinion" regarding defendant's guilt. McKenzie, 157 Wn.2d at 53. But 

### this must be distinguished from an opinion based upon or inferred from the evidence inthe case. McKenzie. 157 Wn.2d at 53. Prejudicial error does not

occur until it is clearand unmistakable that the prosecutor is expressing aNo. 72262-0-1/7 

### personal opinion ratherthan arguing an inference from the evidence. McKenzie.
157Wn.2dat54. Inthis case, the prosecutorwas directly responding to the defense's 

### closing argumentthat "this is not a luring case." The prosecutor's question, "Why would we say this is a luring case?" and conclusion that it"sounds like a luring



### case to me" was a rhetorical reply, not a personal opinion. The prosecutor referred to testimony from two witnesses aboutwhat Park said to the victim. The 

### prosecutorthen argued that basedon this testimony itwas, in fact, a luring case. This was a direct inference from the testimonyjust mentioned, not an independent personal opinion divorced from the evidence inthe record. Even assuming that the prosecutor's remarks constituted misconduct, defense counsel failed to object. Any errorwas waived unless the misconduct

was so flagrant and ill-intentioned that no instruction could have cured the 

### prejudice. Emery. 174 Wn.2d at 760-61. The prosecutor's alleged misconduct in this case does not meetthat test. Park waived any errorwhen he failed to object. Sexual assault protection order The trial court entered a sexual assault protection orderwith a duration of 

### three years. Bystatute, a sexual assault protection orderentered pursuantto a criminal conviction may remain ineffectfor a period of two years. RCW 7.90.150. Park argues, and the State concedes, thatthe three-year order exceeded the court's authority. We accept the concession.No. 72262-0-1/8

Park's conviction is affirmed. The case is remanded for correction ofthe expiration date on the sexual assault protection order. 

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WE CONCUR: 

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