IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON cro COO

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STATE OF WASHINGTON, )

Respondent, ]

v.

No. 72262-0-1

DIVISION ONE

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DANNY C. PARK, UNPUBLISHED OPINION

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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 of one 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 the jury. 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 management decisions." State v. Dye, 178 Wn.2d 541, 547, 309

P.3d 1192 (2013). This broad discretion includes "control over the mode and
No. 72262-0-1/2

order of interrogating witnesses and presenting evidence so as to (1) make the

interrogation and presentation effective for the ascertainment of the truth, (2)

avoid needless consumption of time, and (3) prevent witnesses from harassment

or undue embarrassment." ER 611(a). We review for abuse of discretion. Dye.

178 Wn.2d at 547-48.

In State v. Hakimi, 124 Wn. App. 15. 98 P.3d 809 (2004), review denied,

154 Wn.2d 1004 (2005), this court found that the 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

at the mental capacity of a child, to testify with a facility dog 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. The judge conducted an

off-the-record sidebar with both parties and then allowed her to testify while

holding her mother's driver's license. The judge 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 of the dog and that it was helping the witness to calm down and to

provide her with reassurances and justice. With a dog situation, the court didn't

feel that the card crossed the line in the sense that it would unduly inflame the

passions of the jury."
No. 72262-0-1/3

Park argues that the trial court failed to balance the child's needs with the

risk of prejudice to him before allowing her to testify holding her mother's driver's

license. In Dye, the trial judge reasoned that the victim was a "'developmentally

disabled individual who has . . . significant emotional trauma'" and that the dog

would be "'very unobtrusive, will just simply be next to the individual, not be

laying [sic] in his lap, and ifwe can accommodate somebody who has a

developmental disability when they're testifying in the courtroom Ithink it's

appropriate to do so.'" Dye, 178 Wn.2d at 546 (alterations in original). This was

an appropriate balancing of competing interests. Dye, 178 Wn.2d at 557 ("the

trial court balanced the competing factors appropriately"). In Hakimi, this court

approved the trial judge's reasoning that "'children do present different issues

and different considerations in terms of being witnesses in different cases. They

have a peculiar need to find some security in an otherwise insecure setting, I

suspect. I don't think the doll unduly prejudices, to the extent it prejudices

anyone at all; so I will allow it.'" Hakimi. 124 Wn. App. at 20-21. The trial judge's

balancing of competing interests in this case was very similar to the balancing

approved in Dye and Hakimi. Thus, the balancing was proper.

Park also argues that the trial court failed to take sufficient measures to

reduce the risk of prejudice to him. The child was briefly questioned regarding

the driver's license at the beginning of her testimony. There is no evidence in the

record that the driver's license was brought to the attention of the jury again. It is

"the responsibility of a party alleging error to create a record of that error.. . .

This court is not in a position to speculate about what might have happened at
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trial." Dye, 178 Wn.2d at 556. We conclude that the trial court properly

minimized jury exposure to the license.

Park suggests that a limiting jury instruction should have been given as a

safeguard against potential prejudice. In Dye, the trial court instructed the jury

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

limiting jury 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 trial court did not give the jury 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 her to

testify, which enhanced the truth-seeking goal of the trial and permitted the trial

to move forward. The trial court considered potential prejudice to Park and

properly minimized it. We find no abuse of discretion.

Prosecutor's closing argument

Park contends the prosecutor committed misconduct in closing 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 that the

misconduct affected the jury'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's
No. 72262-0-1/5

arguments during closing argument in the context of the total argument, the

issues in the case, the evidence addressed in the argument, and the jury

instructions. State v. Russell. 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994), certdenied. 514 U.S. 1129 (1995). Failure to object to alleged prosecutorial

misconduct at trial waives any error unless the misconduct is so flagrant and illintentioned that no instruction could have cured the prejudice. State v. Emery.

174 Wn.2d 741, 760-61, 278 P.3d 653 (2012).

The prosecutor told the jury, "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 different type of crime." Park claims that these remarks misstated the

law regarding the mental state required for a luring conviction.

A person commits the crime of luring if he "orders, lures, or attempts to

lure a minor" into or away from specified areas. RCW 9A.40.090(1 )(a). The

plain language of the statute does not include any intent or specific mens rea.

Our courts have already held that the luring offense does not require proof of

intent. See State v. Homan. 181 Wn.2d 102, 107, 330 P.3d 182 (2014) ("RCW

9A.40.090 does not require proof of unlawful purpose or intent."); State v. Dana.

84 Wn. App. 166, 177, 926 P.2d 344 (1996) ("there is no intent element to

luring."), review denied. 133 Wn.2d 1021 (1997). The legislative history of the

luring statute also indicates that luring is a strict liability crime. Dana. 84 Wn.

App. at 166n.28.

Park was convicted under the "attempts to lure" language of the statute.

He argues that "attempt" requires an intentional or goal-oriented mindset.
No. 72262-0-1/6

Where the word "attempt" in the statute has nothing to do with criminal

attempt, it must be given its ordinary meaning of "to try." State v. Gallegos. 73

Wn. App. 644, 650, 871 P.2d 621 (1994). Black's Law Dictionary defines attempt

as the "act or an instance of making an effort to 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, it refers 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

prosecutor did not misstate the law.

Park also claims that the prosecutor argued his personal opinion. In

closing, the defense argued that this "is not a luring case." In rebuttal, 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 of what 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, if I remember the evidence and the

testimony, I'm sure there was discussion of beer and cigarettes

from Lucas Schmidt who we also know directly from [E.H.] that

there was mention of cigarettes and candy.

What else do we know? We also know that this man asked

that little fourth-grader ifshe would have sex with him. And where

would this take place? He asked her to go back to his place, to his

house as described by [E.H.]. It sounds like a luring case to me.

Misconduct occurs when the prosecutor expresses 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 in the case. McKenzie. 157 Wn.2d at 53. Prejudicial error does not

occur until it is clear and unmistakable that the prosecutor is expressing a
No. 72262-0-1/7

personal opinion rather than arguing an inference from the evidence. McKenzie.

157Wn.2dat54.

In this case, the prosecutor was directly responding to the defense's

closing argument that "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 about what Park said to the victim. The

prosecutor then argued that based on this testimony it was, in fact, a luring case.

This was a direct inference from the testimony just mentioned, not an

independent personal opinion divorced from the evidence in the record.

Even assuming that the prosecutor's remarks constituted misconduct,

defense counsel failed to object. Any error was 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 meet that test. Park waived any error when he failed to

object.

Sexual assault protection order

The trial court entered a sexual assault protection order with a duration of

three years. By statute, a sexual assault protection order entered pursuant to a

criminal conviction may remain in effect for a period of two years. RCW

7.90.150. Park argues, and the State concedes, that the 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 of the

expiration date on the sexual assault protection order.

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WE CONCUR:

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