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

JAMES EDWARD HUDEN, Appellant. No. 69227-5-1 DIVISION ONE UNPUBLISHED OPINION
FILED: February 3, 2014 Appelwick, J. — Huden was convicted of first degree murder and given an 

### exceptional sentence based on his victim's particularvulnerability. Huden appeals his 

### sentence, arguing that there was insufficientevidence to support the aggravatingfactor. 

## He also appeals his conviction, arguing that the trial court abused its disci^tio^ig
m m—, 

## allowing thejury access to avideo ofhis police interrogation during deliberationsl^ that theprosecutorcommittedmisconduct. Weaffirm. §£ r^>':
oc r-o^ 

### FACTS Ji 3i5 On December 27, 2003, Russel Douglas was found dead in a car on Whidbey 

### Island. Douglas had a gunshot wound to the head, apparently a homicide. Thepolice 

### investigation ultimately led to James Huden, due in part to information from Huden's closefriend,William Hill. The Statecharged Huden with firstdegree murder. At trial, Hill testified that Huden said he and a woman named Peggy Thomas 

### killed a man. Huden told Hill that they chose Douglas as a victim, because Huden 

### thought Douglas was abusive to hisfamily. Huden's stepfather abused him, and Huden wanted to kill someonethatfitthatmodus operandi. Underthe ruse of givingDouglas a 

### giftfor hiswife, Thomas lured Douglas to a dead end roadin a sparsely populatedareaNo. 69227-5-1/2


### of Whidbey Island. Huden was waiting there. When Douglas arrived, Huden approached the carand shotDouglas intheforehead. 

### The State argued that Douglas was particularly vulnerable to the crime of first degree murder, because he was still buckled into his carwhen Huden approached him and because he had an unsuspecting mindset. The jury found Huden guiltyas charged, including the aggravating factorofparticularvulnerability. Huden appeals. DISCUSSION Huden challenges his exceptional sentence, arguing that there was insufficient evidence to support the aggravating factor of particular vulnerability. He also argues that the statute establishing the aggravating factor is unconstitutionally vague. In addition, Huden appeals his conviction, alleging thatthe trial court abused its discretion 

### in permitting thejury access to a video of his interrogation. He further asserts that the prosecutorcommitted multiple instances ofmisconduct. I. Particularly Vulnerable Victim Aggravating Factor Huden argues that the trial court improperly imposed an exceptional sentence, because there was insufficient evidence to establish particularvulnerability. We review 

### the fact finder's reasons for imposing an exceptional sentence under a clearly
erroneous standard. Statev. Law, 154Wn.2d 85, 93, 110 P.3d 717 (2005). Underthis 

### standard, we reverse the findings only ifsubstantial evidence does not support them. State v. Bluehorse, 159 Wn. App. 410, 423, 248 P.3d 537 (2011). "Substantial 

### evidence" is sufficient evidence to "'persuade a fair-minded person ofthe truth ofthe declared premises.'" \_± at 423-24 (quoting State v. Jeannotte, 133 Wn.2d 847, 856, 947 P.2d 1192 (1997)).No. 69227-5-1/3
Thejury must find beyond a reasonable doubtthatthere is a factual basis for an aggravated sentence. RCW 9.94A.537(6); State v. Suleiman, 158Wn.2d 280, 292, 143 P.3d 795 (2006). RCW 9.94A.535(3)(b) permits a sentence above the standard range 

### where the victim was particularly vulnerable or incapable of resistance and the defendant knew or should have known thatfact. For a victim's vulnerability tojustify an 

### exceptional sentence, the State mustalso showthatthe vulnerability or inability to resist

was a substantial factor in the commission ofthe crime. Suleiman, 158 Wn.2d at 291- 92. 

### The evidence at trialdemonstrated that Douglas was shotwhile seated in his car. 

### The angle of the wound indicated that the shot came from the driver's side. The door
was closed, but the window was down several inches. The range of fire was between 

### several inches and a couple of feet. Douglas was in the driver's seat, slumped over with his hands on his thighs. The keys were still in the ignition, the carwas in reverse, 

### and the emergency brake was up to hisright. His seatbeltwas across his bodywiththe buckle unhooked. Based on the blood spatter, however, Douglas was shot with his seatbelt still attached. The evidence further showed that Huden and Thomas lured Douglas to the 

### location under falsepretenses. Thomas hadtold Douglas thatshehad agiftforhiswife and asked him to meet her. When Douglas leftthat day, he told his wifethat he was 

### goingtorun errands. When Douglasarrived at the meeting spot, Huden shothim. The evidence also demonstrated that Huden attacked Douglas in a relatively remote location. Wahl Road is a dead end road outside ofLangley city limits and does 

### not getmuch traffic. The area has multiple residents, but is sparselypopulated overall.No. 69227-5-1/4 Douglas's car was parked in an opening in the vegetation off Wahl Road that was visibleto neighboring homes and passersby. In closing, the prosecutor argued that Douglas was more vulnerable than a typical victim of first degree murder: He is in two ways. Obvious way: He is seatbelted in his car. He's got bucket seats. He's got a centerconsole. Shift lever. Parking brake's up. His legs are underthe steering wheel.
...
And [Douglas] was particularlyvulnerable inanotherway. . . .

. . . [Hje's unsuspecting. And he has no reason to think twice when the man coming up to his car approaches the car. He has no reason to flinch, to duck, to start the motor, to take the brake off, to unbuckle the seatbeltbecause he's been duped into thinking thatthis isjustthe average thing that a husband might do on the day after Christmas. [He was b]oth vulnerable and incapable ofresistance... 

### Inaddition to Douglas's seatbelt and unsuspecting mindset, the State's briefing argued thathis remote location contributed to his particularvulnerability 

### Huden does not allege thatthejurywas not properly instructed on the law in this
case. Rather, he contests the jury's factual finding by special verdict that particular 

### vulnerability existed.1 He argues that Douglas was not particularly vulnerable to a sudden gunshotto the head. This is so, he contends, becausethe suddenness ofsuch
an attack would prevent any victim from resisting. He relies on State v. Jackmon. 55 Wn. App. 562, 569, 778 P.2d 1079 (1989), and State v. Serrano. 95 Wn. App. 700, 712, 

### 1At trial, thejury was instructed to consider whether"[Huden] knew orshould have known that [Douglas] was particularly vulnerable or incapable ofresistance." The instructions elaborated that a victim is particularly vulnerable if "he or she is more vulnerable to the commission ofthe crime than the typical victim of murder in the first 

### degree. The victim's vulnerability must also be a substantialfactor in the commission of the crime."No. 69227-5-1/5 715, 977 P.2d 47 (1999), both of which reversed a finding of particular vulnerability in
cases involving victims shotfrom behind with a firearm. In Jackmon, the victim was shot in the back ofthe neck while seated at table in his office. 55 Wn. App. at 564-65, 567. The trial court made a finding of particular vulnerability based inparton thefactthatthe victim was disabled by a caston his ankle, jd. at 565. The Court of Appeals reversed, noting that there was no indication the victim's disability rendered him more vulnerable to the assault that an able-bodied person would have been, jd. at 567. No evidence established thatthe defendant knew aboutthe leg injury or thatthe castwas visible to the defendant prior to committing the crime. Id. Further, itwas highly unlikely an able-bodied person would have been able to escape, jd. In Serrano, the victim, an orchard worker, was above the ground in an orchard 

### ape2 when he was shot multiple timesin the back. 95Wn. App. at710-11. Thetrial courtfound thatthe victim could not run or protect himselfand that he was particularly vulnerable, jd. at711. The courtofappeals reversed, jd at712, 715. Itreasoned that, 

### though the victim may have been vulnerable because he was above the ground in an orchard ape, the record did not suggestthis was a substantialfactor inthe shooting, jd. Neither case stands for the proposition that an exceptional sentence based on 

### victim vulnerability is necessarily unavailable when the victim is attacked with a firearm. Rather, ineach case, one ofthe key components necessary to uphold the exceptional sentencewas not supported inthe record below.


### 2An orchard ape is a caged platform on a hydraulic lift powered by a tractor. Serrano, 95 Wn. App. at711.No. 69227-5-1/6
Here, the victim was an able-bodied man like the victim in Serrano. But, the 

### finding of particular vulnerability or inability to resist is not limited to the physical characteristics ofthe victim. State v. Ross, 71 Wn. App. 556, 565, 861 P.2d 473, 883 

### P.2d 329 (1993). We recognized particular vulnerability when the defendant knew the victim was alone and stranded. State v. Altum, 47 Wn. App. 495, 503, 735 P.2d 1356 

### (1987), overruled on other grounds by State v. Parker, 132 Wn.2d 182, 937 P.2d 575 

### (1997). Similarly, we recognized particular vulnerabilitywhere the defendantpicked his victims based on the fact thatthey worked alone inoffices open to the public. Ross, 71 

### Wn. App. at 565. And, we recognized that attacking women alone in their homes while 

### they slept left them less able to resist and more vulnerable than a person awake. State v. Hicks, 61 Wn. App. 923, 931, 812 P.2d 893 (1991). 

### The record here supports a finding that Huden knew or should have known that 

### Douglas was particularly vulnerable or unable to resist the attack. Like the victims in Altum, Ross, and Hicks, Douglas had been isolated by Huden. Douglas was asked to meet at afairly remote location that required he come in a vehicle. He was alone when he was attacked. Likethe victims in Hicks and Serrano, Douglas was unable to resist 

### the attack. He had setthe parking brake and turned off the vehicle. Hewas belted into his vehicle, with little ability to move between the door, wheel, and console. He was 

## approachedandshotbeforehecouldexitthevehicle.3
3 The State also relied on the argument that Douglas was unsuspecting. However, the victimwas unsuspecting in virtuallyevery published case that involved 

### this exceptional sentencing option. See, e.g., Serrano, 95 Wn. App. at 711 (victim shot 

### from behind); Ross, 71 Wn.App. at 564 (defendant gained entry using ruse); Hicks, 61 Wn.App. at 931 (victim asleep); Jackmon, 55 Wn. App. at 567 (victim shot in back of neck); Altum, 47 Wn. App. at 497 (victim grabbed from behind). Ifthatfactor alone wasNo. 69227-5-1/7 And, like Hicks—but unlike Jackmon and Serrano—the record here supports a 

### findingthat Douglas's particularvulnerability or inability to resistwere substantialfactors inthe commission ofthe crime, based on the way Huden set up the meeting and crime. Taken together, these circumstances provide sufficient evidence to support the jury's 

### finding ofparticularvulnerability.4 We hold that the particularly vulnerable victim aggravator properly supports imposition ofthe exceptional sentence.

II. Vagueness ofAggravating Factor Statute Huden also challenges the constitutionality of RCW 9.94A.535(3)(b), which 

### establishesthe "particularly vulnerable" aggravating factor. He arguesthatthe statute is unconstitutionallyvague. However, in State v. Baldwin, the Washington Supreme Court held that 

### sentencing guidelines are not subjectto due process vagueness analysis. 150 Wn.2d 448, 461, 78 P.3d 1005 (2003). This is because sentencing guidelines do not define conductor allow for arbitrary arrest and prosecution. Id. at459. Huden maintains that the U.S. Supreme Court's decision in Blakelv v. Washington nullifies the Baldwin rationale. 542 U.S. 296, 303-04, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). In Blakelv. the Court ruled that a judge may not impose a 

### sentencing enhancement without either findings by the jury or a stipulation by the defendant. See id. 

### enough, one would have expected it to have been discussed inJackmon and Serrano, since itwould have resulted in affirmance rather than reversal. 

### 4 Because there is sufficient evidence to support a finding of particular vulnerability, the trial court had substantial and compelling reasons to support Huden's exceptional sentence. See RCW9.94A.535.No. 69227-5-1/8
Huden argues that this established a due process right that encompasses vagueness challenges to sentencing enhancements. He focuses on the Blakelv Court's treatment ofaggravating factors as equivalent to elements of a crime. But, Blakelv did not destroy any distinction between aggravating factors and elements. In State v. Powell, a post-Blakelvdecision, a majority oftheWashington Supreme Courtconcluded 

### that aggravated sentencing factors are the functional equivalent ofessential elements that must be charged in an information. 167 Wn.2d 672, 690, 223 P.3d 493 (2009), (Stephens, J. concurring), overruled by State v. Siers, 174 Wn.2d 269, 274 P.3d 358 (2012). But, the courtsubsequently overruled thatdecision: 

### [W]e are ofthe view that the decision a majority of this court reached in Powell on the issue ofwhetheraggravating factors mustbe charged inthe information is incorrect.
. . .We, therefore, overrule this court's decision on 

### that issue and adopt the position advanced bythe lead opinion in Powell to the effect that, so long as a defendant receives constitutionally 

### adequate notice of the essential elements of a charge, "the absence of an allegation of aggravating circumstances in the information [does] not violate [the defendant's] rights under article I, section 22 of the Washington Constitution, the Sixth Amendment to the United States Constitution, or due process." 

### Siers, 174Wn.2d at 276 (alterations in original) (quoting Powell, 167 Wn.2d at 687). Blakelv focused on the right to a jury trial. See 542 U.S. at 301-02. This is 

### distinct from the vagueness doctrine, which exists to provide notice to the public and protectit from arbitrary state intrusion. Baldwin, 150Wn.2d at 458. The rule inBaldwin still stands. 

### Huden may not bring a vagueness challengetothe aggravating factor statute.

8No. 69227-5-1/9

III. Jury Access to Interrogation Video During Deliberations Huden argues that the trial court improperly permitted thejury unlimited access to a video of his interrogation. At trial, the prosecution introduced the video as an exhibit and played it for the jury during trial. The court provided the jury with a video playerto watch itagain during deliberations. Thetrial courthas discretion to allow thejuryto take video tape recorded exhibits to thejury room. State v. Castellanos, 132 Wn.2d 94, 100, 935 P.2d 1353 (1997). In Castellanos, the trial court provided thejury a playback machine during deliberations so itcould review video tape recordings ofdrug transactions, jd. at 96-97. The appellate court affirmed this exercise ofdiscretion, finding that thejury's unlimited access to the recordings alone did not prove that thejury gave the exhibit undue prominence, jd. at 

### 102. The court also distinguished between testimonial and nontestimonial exhibits, suggesting that the former raised problems of undue emphasis, while the latter should betreated as any otherexhibit. See id at 101-02. Huden focuses on this distinction, arguing that the video of his police interview
was testimonial. He cites to State v. Elmore, a case in which the trial court permitted 

### thejury to review video tapes ofthe defendant's confession and police interview. See 139 Wn.2d 250, 296, 985 P.2d 289 (1999). Huden relies on the dissent inthat case to assert that the video of his own interview was testimonial. But, the Elmore majority expresslyfound the taped confession and interviewto be nontestimonial. jd The record here does not contain the video tape or a transcript of Huden's 

### interrogation. But, under Elmore, the trialcourt did not abuse its discretion in providingNo. 69227-5-1/10
the jury unlimited access to a video tape of the defendant's police interrogation and confession. Huden offers no evidenceto distinguish the presentcase. Based on the evidence presented, we do not find that the trial court abused its discretion. IV. Prosecutorial Misconduct Huden alleges multiple instances of prosecutorial misconduct. Prosecutorial misconduct is grounds for reversal where the conduct is both improper and prejudicial. State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011). This court determines the effect of a prosecutor's improper conduct in the context of the full trial, including the evidence presented or addressed in argument, the issues in the case, and the jury instructions. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006). Generally, a prosecutor's comments are prejudicial only where there is a substantial likelihood that they affected thejury's verdict. Monday, 171 Wn.2d at 675. A. Comments On Huden's Demeanor Huden first argues that the prosecutor improperly inferred that he was guilty by commenting on Huden's demeanor. Prosecutors havewide latitude inclosing argument to draw reasonable inferences from the evidence and express those inferences to the jury. State v. Stenson. 132 Wn.2d 668, 727, 940 P.2d 1239 (1997). But, counsel must refrain from expressing a personal opinion. State v. Rivers, 96 Wn. App. 672, 674-75, 981 P.2d16(1999). 

### Huden challenges the prosecutor's comments about his interaction with the police. Inclosing, the prosecutor described Huden's reaction to the police showing up at his Florida home, noting that Huden did not seem surprised, despite the fact thatthe

10No. 69227-5-1/11
detectives came all the way from Washington. The prosecutor also commented on Huden's behavior during his interrogation, pointing out his "[v]ery flat affect." The prosecutor further noted that Huden never expressly denied having killed Douglas. None ofthese statements contained opinions—they were descriptions ofthe evidence established at trial. At most, they were implications of inferences that counsel wished forthejury to draw. This was not improper. B. Comments On Huden's Credibility 

### Huden also argues that the prosecutor improperly commented on his credibility. Specifically, he contests the prosecutor's statementabout "some actual information that [Huden] gave thatwas reliable here." He contends that this improperly insinuated that he had lied to the police. 

### Prosecutors may not express their personal opinions of the defendant's 

### credibility. State v. Calvin, 176 Wn. App. 1, *18-*19, 302 P.3d 509, P.2d 

### (2013). But, there is no prejudicial error unless it is "'clear and unmistakable'" that counsel isexpressing a personal opinion, jd. at *19(quotingState v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995)). InCalvin, the prosecutor said the defendant was "'just 

### trying to pullthe wool over youreyes.'" Id The court found that this was an explanation ofthe evidence, ratherthan a personal opinion. Id 

### Taken out of context, the prosecutor's statement here may seem like an insinuation that Huden was an unreliable witness. But, the prosecutor's comment 

### directly preceded a list ofevidence that corroborated Huden's statements during his interrogation. The prosecutor did not assert that Huden had otherwise lied, thus

11No. 69227-5-1/12 juxtaposing the following reliable statements. See jd This was not a clear and unmistakable opinion ofthe defendant's credibility. C. Comments On Huden's Silence Huden further asserts that the prosecutor improperly commented on his silence during his police interview. Inclosing, the prosecutor reviewed statements that Huden 

### made during his interrogation, and then pointed out some details that Huden had not mentioned. The prosecutor noted that the absence of these details was "[pjretty significant." 

### The Fifth Amendment forbids comment by the prosecution on a defendant's refusal to testify. Griffin v. California, 380 U.S. 609, 614, 85 S. Ct. 1229, 12 L. Ed. 2d 106 (1965). But, this was not a comment on Huden's silence. In fact, the prosecutor 

### explicitly stated that Huden spoke to the police. The prosecutor was merely drawing inferences from the contents ofHuden's statement. This was not improper. D. Vouching For State's Witnesses 

### Huden also challenges the prosecutor's comments about the State's witnesses. 

### Itis improperfor a prosecutorto vouch for the veracity of a witness. State v. Ish, 170 Wn.2d 189, 196, 241 P.3d 389 (2010). But, counsel may comment on a witness's 

### veracity so long as itdoes not express a personal opinion and does not argue facts beyond the record. State v. Smith, 104 Wn.2d 497, 510-11, 707 P.2d 1306 (1985). In State v. Warren, the court found that a prosecutor's actions were proper when he 

### argued that certain details had a "'ringoftruth'" to them. 165 Wn.2d 17, 30, 195 P.3d 940 (2008). The court found that the statement was an inference based on specific details from trial, ratherthan the prosecutor's personal opinion. ]d

12No. 69227-5-1/13
Here, the prosecutor made multiple statements about the strength ofthe State's witnesses' testimony. He said that their testimony combined was "so strong, so overwhelming, in and ofthemselves they prove beyond a reasonable doubt." He also 

### called Hill's testimony "uncontroverted," "unassailable," and "unimpeachable," stating that it had "[every] indicia of reliability." The prosecutor emphasized that Hill was Huden's bestfriend, and that itwas very difficultfor Hill to comeforward. As inWarren, these comments were mere inferences from the evidence at trial. The prosecutor did 

### not state his own belief about witness credibility, but remarked on the strength ofthe evidence presented attrial and the lack ofreason to doubtit. 

### Huden also challengesthe prosecutor's comments thattwo Statewitnesses were 

### "heroes" for testifyingagainstHuden. During closing, the prosecutorsaid: But this case is also about heros fsicl. Isubmit to vou that Bill Hill is a hero. Bill was put in a position he 

### did not ask to be put in, he did not want to be put in, and itwas very difficult for him. He had to choose between loyalty to his best and closest 

### friend and doing the right thing and doing what his conscience told him to do.

Now Keith Qgden, Isubmit, is also a hero in a similar situation. He didn't have the closeness with Jim Huden that Bill Hill had; but 

### nevertheless, Keith found himselfinpossession of a gun that he had good reason to believe
. . . was used to kill a man. And Keith, too, had to 

### struggle with that a little bit. But he knew what he had to do because his conscience told him what to do. 

### (Emphasis added.) The use of the word "hero" crossed into the realm of personal opinion. 

### However, Huden did not object to these comments at trial. Where a defendant 

### fails to object to improper conduct, the error is considered waived unless the conduct

13No. 69227-5-1/14



### was so flagrant and ill-intentioned that itcreates an enduring prejudice that could not have been neutralized by a curative instruction. State v. Brown, 132 Wn.2d 529, 568, 940 P.2d 546 (1997). In Brown, the prosecutor stated that the defendant's crime was "'evil'" and "'screams out for the death sentence.'" ]d The court held that, though the 

### words were dramatic, the prosecutor's general statements were supported by the evidence and his conduct did not warrant reversal. Id. at 568-69. 

### Conversely, in State v. Belgarde, the prosecutortold thejurythat the defendant
was "'strong in'" the American Indian Movement, whom he described as "'a deadly group of madmen'" and "'butchers, that killed indiscriminately Whites and their own.'" 110 Wn.2d 504, 506-07, 755 P.2d 174 (1988) (emphasis omitted). The prosecutoralso 

### called the group "militant" and analogizedthem to notoriouspolitical leaders. Id at 507. The court found that those statements were so prejudicial that a curative instruction would have been ineffective, jd 507-08. 

### Like the descriptions in both Brown and Belgarde, the word "hero" does have emotional appeal. But, itdoes not rise to the inflammatory level ofthe statements in Belgarde. And, as in Brown, the prosecutor used the word in context of a statement 

### supported by the evidence: here, the witnesses' difficultposition oftestifying as Huden's friends. In the face of the strong evidence against Huden, it is unlikely that this brief 

### complimentary description of the State's witnesses prejudiced the outcome of his trial. This error does not warrant reversal.

14No. 69227-5-1/15

E. Personal Opinion OfHuden's Guilt 

### Finally, Huden protests that the prosecutor improperly expressed his opinion of Huden's guilt. It is improperfor a prosecutorto state a personal beliefaboutthe guilt or innocence of the accused. State v. Emery, 161 Wn. App. 172, 192, 253 P.3d 413 

### (2011), affd, 174 Wn.2d 741, 278 P.3d 653 (2012). But, the court will not find 

### prejudicial error unless it is clearthat counsel is expressing a personal opinion rather than an inference from the evidence. Id at 192-93. In Emery, the court declined to find 

### prejudicial error where the prosecutor said that "'thetruth of the matter'" was that the defendant was guilty. ]d at 192. The court noted that this statement came after 

### discussing the State'sevidence, and was only an inference therefrom. Id at 193. Here, whilediscussing the special verdict forms, the prosecutortold the jury that 

### itwould consider aggravating circumstances "if you find Mr. Huden guilty

-- And I strongly argue that that is the case and the standard of evidence and proof has been met." This statement, as in Emery, came after the prosecutor laid out the State's 

### evidence, and was merely an inference that he wished for the jury to draw. This did not
constitute error. We affirm.

WE CONCUR:



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