### FILED JULY 11, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STA TE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,

V. ROGERWILLIAMFLOOK, Appellant. ) ) ) ) ) ) ) ) ) No. 34220-4-111

UNPUBLISHED OPINION

FEARING, C.J. -RogerFlook appeals onnumerous grounds his convictions for childrape and child molestation. We agree withhis contentionthat a law enforcement officer improperly vouched, during the officer's testimony, to the credibility ofthe victim andthe lack ofveracity ofFlook. We remand for a newtrial. FACTS OnJuly 24, 2010, RogerWilliamFlookmarriedMarthaFlook. Marthahas two children from apriormarriage, A.S. and J.S. J.S. suffers from a seizure disorder. When startled, J.S.'s muscles growrigid, his body curls, and he places his arms behindhis head. In 2014, Martha andRogerFlookresided inEndicott. OnJune 6, 2014, Martha andRoger, accompaniedbyA.S. and J.S., attended a marriage seminar in Clarkston. TheNo. 34220-4-III State v. Flook
parents failed toproperly plan for the trip. A.S. and J.S. lacked pajamas and bathing suits, and J.S. lacked his seizure medication. During the Clarkston marriage seminar, all four members ofthe family stayed in

one room with one king-size bed at a motel. They laid in bed in the following order: Roger, A.S., J.S., Martha. A consuming cold afflicted Martha Flook during the night ofJune 6. She struggled to sleep and her coughing, combinedwith J.S.' lack ofmedication, causedJ.S. to suffer seizures. At an unidentifiedtime, Martha arose from bed, sat in a chairnear Roger, and remained in the chair for the remainder ofthe night. J.S. seizedthroughout the night. A.S. began the night laying onherback. At someunidentified moment, A.S. felt something underherpants. Thepressure underher clothes released, but, threeto five seconds later, returned. She sensed a hand further down herpants. The hand retreated again. A.S. later identified the hand as Roger Flook's hand. Roger's hand slid inside her underwear a third time. A.S. felt the hand "touch [her] area." Report ofProceedings (RP) at 115. Afterthe hand retreated again, A.S. rolled onto her side andpositioned her

arm between her legs. Roger grabbed her arm and whispered "come on." RPat 116. A.S. softly cried. When Roger asked her whatwas wrong, A.S. did notrespond. In August 2015, A.S. attended summer camp in Moscow, Idaho. On her last day at camp, A.S. disclosed, to C.S., a nine-year-old girl A.S. met at camp, the touching by 2No. 34220-4-III State v. Flook Roger Flook in herprivate area. C.S. reported A.S.'s disclosure to C.S.'s mother. Aaron Sheridan, the father ofboth A.S. and J.S., resides in Pullman. After searching for Aaron Sheridan's location, C.S.'s mother contacted Sheridan and informed him ofA.S.'s disclosure. Thereafter Sheridan informed Martha Flook ofA.S.'s allegations. Whitman County SheriffBrett Myers conducted most ofthe investigation into A.S.'s allegations against Roger Flook. Myers interviewed both A.S. and Flook. When Myers asked Flook ifhetouched A.S.'s private parts, Flook denied any such touching. Flook explained that J.S. suffered from seizures that night and he reached across A.S. to prevent J.S. from flailing. PROCEDURE The State ofWashington charged Roger Flook with one count ofchild molestation in the first degree and one count ofchild rape in the first degree. Before trial, Flook's attorney filed motions in limine to preclude, among other things, the State from mentioning Flook's criminal history, earliertime in prison, and use ofcontrolled substances. The State responded that mention ofFlook's earlierprison stay held relevance because Flook's release date from incarceration constituted an important event in A.S.'s life and a date from which A.S. measured other events. A third motion in limine sought to preclude: Any claims ofconduct not directly related to the alleged incidents of June 6, 2014, including claims that the defendant talks about inappropriate things, showed internet images, including anime characters, used profanity, 3No. 34220-4-111 State v. Flook

discussed finding a sex toy in [A.S.'] mother's drawer, that defendant spanked [A.S.] on her bottom, that defendant asked [A.S.] to sit on his lap in a car in the driveway oftheirhome in Endicott, Washington, andthe claimthat the defendant has kissed [A.S.] on the neck. Clerk's Papers (CP) at 10. Roger Flook based his third motion on ER404. Flook argued that the conductmentioned in the motion, assuming any occurred, happened afterJune 6, 2014, and thus bore no probative value as to whetherhe committed the charged crimes. Flook contended the only purpose for testimony ofsuch behaviorwould beto tag him as

a badperson. The State argued the evidence demonstrated his lusttowardA.S. and thus the trial court should admit the evidence underthe second sentence ofER404(b). The trial court granted RogerFlook's motionto exclude evidence ofdrug use, Flook'stime in prison, and his release date from prison. The trial court denied the motion to exclude testimony ofother sexually inappropriate touching ofA.S. byFlook. The trial courtreserved ruling on the latter motion at the conclusion oforal argument and thus rendered no comments onthe merits ofthe motionthen. The trial court later entered

a written orderthat declared: Motion to Exclude Sexually Inappropriate ConductDirected Toward [A.S.] This motion is denied. The proffered evidence, ifbelieved, has a strong tendency to demonstrate a lustful disposition towardthe alleged victim. 

### It also tends to show motive, intent, knowledge, and absence of mistake or accident. CP at 39 (boldface omitted).

4

### No. 34220-4-111 State v. Flook

At trial, Whitman County SheriffBrettMyers, who conducted the investigation of A.S.'s allegations, testified extensively. In response to a question aboutFlook's demeanor during Myers' first interview with him, Myers testified: Mr. Flook, it was about three o'clock in the afternoon. Mr. Flook appeared to be very tired, possibly-possibly underthe influence ofa substance, rolled his eyes quite a bit, couldn'tkeep his eyes open sometimes, acted-it seemed like he hadjustbeenrolled out ofbed almost and often times questions neededto be asked a couple oftimes in orderto elicit an answer. YeahRP at 51. On cross-examination, defense counsel questioned SheriffBrettMyers about inconsistencies in A.S.'s statement. Counsel also asked, "[w]ouldyou agree with me that girls are not always telling the truth?" RP at 60. The following colloquy then occurred: MYERS: Are you talking about, in what context? LEDGER WOOD [Defense Counsel]: Whenthey make sexual abuse allegations. MYERS: In by far and awaythe vast majority ofthe cases I have done they are telling-they're not making it up.

CP at 61. LEDGERWOOD: Are there cases where they are making itup? MYERS: I'vehad one ortwo out ofhundreds.

The State, onredirect examination, elicited testimony from SheriffBrettMyers regarding the veracity ofthe statements ofA.S. and Roger Flook. SheriffMyers gave the following testimony on redirect: [The State]: Mr. Ledgerwood was asking you about experience in prior cases with girls who would make these things up and you indicated 

### 5No. 

### 34220-4-111 State v. Flook

the vast majority were determined to be founded. As part ofyourtraining, in both general law enforcement and sexual abuse to identify signs of deception during an interview? MYERS: Yes. [The State]: Can you describe that briefly to thejury? MYERS: Well, certainly any time that you are interviewing someone,justlike establishing whether a person knows the truth from the untruth, or having some sort ofgrandiose statement. Sometimes whatyou do is you ask questions several different ways to make sure that what they're saying is consistent and then you also take into considerationtheir body language, their demeanor, to help determine whether ornot a statement on its face value is true. In this particular case, all ofher body language was consistent with someone, based on my training and experience that was telling the truth. There was nothing that was overly grandiose, so what I mean by that is sometimes when people are explaining something that is almost fantastical and unbelievable, then you starthaving to question is thatreally the way it is or when people describe things that are in a way that's much more in the a way we see things happen, then you start-you look at a statement different based on answers and then again, you come back around and ask different questions and you look to see if there's consistency and then compare that consistency with other statements that other witnesses might give down the road. [The State]: So, during the course ofthe interview, whether it's a victim ofsex or a witness or otherwise, you're looking for possible signs of deception? MYERS: Yes. [The State]: And you didn't see any or did you see any with A.S.? LEDGERWOOD: Your Honor, the question has been asked and answered. He'sreally asking the witness, does he believe her ornot. [The State]: No, I'm asking whetherhe saw-it's an appropriate question. JUDGE: Let's not talk overthe top ofeach other gentlemen. LEDGERWOOD: That's the province ofthejuryto decide ifshe's telling the truth or not and the question has been asked and answered. He was asked ifhe saw signs ofdeception and he answered that. [The State]: Your Honor, he had not answered that question. He, and it is, he is not being asked whetherhe believedthe witness or whether the witness was credible,justthat did he observe any signs ofdeception when interviewing A.S. 6No. 

### 34220-4-111 State v. Flook

JUDGE: I'll agree with the State. Go ahead. [The State]: Did you observe any signs ofdeception in your interview withA.S.? MYERS: No I did not. RP 69-71. [The State]:

... Now, during your interviewwith Mr. Flook, did you observe any signs ofdeception? MYERS: What I would consider based on my training and experience, I felt as though the answers- [The State]: Let me, notyour opinionMYERS: Okay- [The State]: As to the truth orthe falseness ofthe statements he made. Didyou observe any signs or signals to youthatthere may be deception? MYERS: Inconsistencies from what other people had indicated would be thatthere were some inconsistencies withwhathe said. [The State]: How aboutthe lack ofmemory aboutthe general subject matter when you initially inquired. MYERS: So, often times when askingpeople questions ifsomething as memorable as maybe going to a marriage counseling retreat whenyou ask that, that would be something mostpeople wouldbe like ohyeah, I remember goingto that a year ago. It's not a guarantee, but in this particular case it's a very important fact ofthe case and when one ofthe very important facts ofthe case is when you askthat question andthere's not an immediate memory and in fact it's a memory that has tobejarred and then they rememberthat. To me that's a sign of trying to be evasive in providingan answer, which is a sign of deceptiveness. So, when we look for evasiveness in answering, having to repeat questions several times that are very direct and simple questions, often times those are indications that aperson is beingdeceptive and in the interview with Mr. FlookI didsee that. [The State]: And contrasting that with his fairly quick memory about the sleeping arrangement and the order ofpeople in that bed onthatnight, did that-didthat strike you? MYERS: Um to some degree, yes absolutely, because again not having a memory that it neededto bejarred andthen on some ofthe other questions with very quick responses, did you ever do this, no. Didyou ever 7No. 

### 34220-4-111 State v. Flook

do this, no. Some ofthe questions simply could have, tojust say no would tell me that aperson has a very good memory ifthey arejust absolutely sure that didn'thappen, butto not be able to remember a trip to the hotel in Clarkston would be an example of. [The State]: So, remember or notremembering the general eventbut then remembering details immediately aboutthat event? MYERS: Like sleeping arrangement, where everybody slept. [The State]: OrMYERS: Reaching over specifically not being able to remember going to the hotel, butthen once being reminded being able to remember that during the night when there was a seizure that they reached overto stop the flailing ofthe arms. Those are, I guess sometimes you look for convenient memories or convenient losses ofmemory, as a deceptive answer. [The State]: Orthe-him not remembering her sitting on his lap in the vehicle butthen remembering he terminatedthe contact by needing to go to the bathroom? MYERS: Right. RP at 73-75 (emphasis added). A.S. testified about the alleged rape and molestation. She said: A.S.: Well, I felt it touch my area and so I felt uncomfortable. [The State]: By area what are we-what are youtalking about, what do you mean by your area. A.S.: Like- [The State]: So, whenyou're talking about-whenyou'retalking about are youtalking about outside in the front at this point?

RP at 115-16.A.S.: Yeah.

[The State]: From your sex ed class do you know what labia are? A.S.:No. [The State]: Did it go down into the area where you go potty? A.S.: Just a tiny bit and that was yeahjust like not even much, no?

8No. 34220-4-III State v. Flook[The State]: Like when you say not even much, can you explain that? A.S.: Like maybejust a tiny bit ofa fingertip. [The State]: And did that go inside the opening orjust-canyou explain? A.S.: Not exactly,just-no

### I can'treally explain it. [The State]: Can you show me with your fingers. A.S.: Likejustlike that. [The State]: Can you demonstrate it? Hold it up, I'm sorry. A.S.: Just like this. [The State]: So,justinside the folds, in the-theA.S.: Mmm hmm. [The State]: Split there. How about further into the, you know what your vagina is?

RPat117-18.A.S.:No. [The State]: Not, you mean no you don't know or no, not in that far? A.S.: Not in that far.

A.S. testified about other incidents when Roger Flook acted inappropriately. He showedher anime porn and talked to her about sex. She sat on his lap. Flook spanked her randomly. Nicole Konen A.S.'s counselor, declared during trial: [The State]: Did [A.S.] indicate to you a timeframe whenthis [touching] had happened? KONEN: Right after he got out of jail. [Defense Counsel]: I'm going to object and ask that that part ofthe answer be stricken. JUDGE: That will be stricken. RP at 216. [Defense Counsel]: And so [A.S.] tells you for the first time something that she said happened fourteen months earlier. 9No. 

### 34220-4-111 State v. Flook

KONEN: Right. [Defense Counsel]: Didyou understandthe date to be June of

### 2014. KONEN: I did not knowthe date. Ijustknew it was sometime after and I didn'tknow when Rogerwas even injail, so!- [Defense Counsel]: Your Honor, I'm going to ask again that any reference tojail be stricken. KONEN: That was the only date I had. [Defense Counsel]: Andthe witness be instructed. JUDGE: Thatwill be stricken and you're not to make reference to any kind of jail or anything associated aboutthat. 

### RP at 

### 224. RogerFlook did nottestify at trial. Thejury found Flook guilty ofchild molestation in the first degree and child rape inthe first degree. LAWAND ANALYSIS On appeal, RogerFlook argues that the trial court erred by denying his motion for mistrial following Nicole Konen's violation ofthe court's order in limine precluding mention ofFlook's time injail, by admitting opinion testimony from SheriffBrettMyers, and by admitting testimony ofother sexual misconduct with A.S. Becausethe State contends that RogerFlook's trial counsel did not objectto the testimony ofBrettMyers, Flook contends he suffered ineffective assistance ofcounsel. Accordingto Flook, counsel also performed ineffectively by failing to request a limitingjury instruction with regard to the evidence ofother sexual misconduct. Finally, Flook contends cumulative

error deprived him ofa fair trial.

10No. 34220-4-III State v. Flook

We holdthatthe trial court committed errorby allowing SheriffBrettMyers to testify to the veracity ofRogerFlook and A.S. and that such error was harmful. Since we do not expect a witness to violate the trial court's order in limine during a second trial, we do not address Flook's assignment oferrorbased onNicole Konen's violation ofthe order. We also need not address Flook's contention ofcumulative error and ineffective assistance ofcounsel. Because the issue ofevidence ofFlook's othertouching ofA.S. will likely arise on a retrial, we address this third assignment oferror. SheriffBrettMyers' Testimony RogerFlook contends the trial court erred by admittingtestimony from Sheriff BrettMyers, in which Myers opined about Flook's deceptiveness and A.S.'s truthfulness. Flook argues that this testimony embraced the ultimate issue ofguilt and thus reaches constitutional magnitude. The State argues that, without conceding inadmissibility ofthe testimony, Flook failed to preserve the issue. It contends that counsel only objected on the basis thatthe question had previously been asked and answered and thatMyers' indistinct statements do not attain constitutional magnitude. The State does not argue that Flook's earlier questioning ofSheriffMyers about some girls fabricating stories opened the door for testimony concerning the credibility ofA.S.

11

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## I ' No. 34220-4-III State v. Flook Testimony aboutA.S. We distinguish betweentestimony from SheriffBrettMyers about A.S. and the sheriffs testimony about Roger Flook. We must first determine ifFlook objected to Myers' testimony about A.S.'s veracity. ER 103 governs rulings on evidence; it reads: (a) Effect ofErroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right ofthe party is affected, and (1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike is made, stating the specific ground of objection, ifthe specific ground was not apparent from the context[.] On the one hand, an objection that does not specify the particular ground on which it is based is insufficient to preserve the question for appellate review. State v. Guloy, 104 Wn.2d 412,422, 705 P.2d 1182 (1985). On the other hand, all that is required ofany objection to evidence is that the objection be sufficiently clear and definite so that the trial court will understand the reason for the objection. Walley v. LaPlata Volunteer Fire Department, 368 S.W.3d 224,232 (Mo. Ct. App. 2012). Roger Flook's defense counsel objected to SheriffMyers' testimony: Your Honor, the question has been asked and answered. He'sreally asking the witness, does he believe her ornot. RP at 71. In his next comments to the court, before Myers answered the question, counsel reiterated: That'sthe province ofthejuryto decide ifshe's telling the truth or 12No. 34220-4-III State v. Flook

not and the question has been asked and answered. RP at 71. We disagree with the State's contention that the objection did not suffice. Counsel's comments notified the trial courtthat Flook objectedto the testimony because

a witness may not opine on the credibility ofa witness. Because the issue was preserved, we address directly the merits ofRogerFlook's claim that the trial court erroneously allowed testimony from SheriffBrettMyers that vouched for the credibility ofA.S. We review a trial court's decision to admit or exclude evidence for an abuse ofdiscretion. Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 668, 230 P.3d 583 (2010). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds orreasons. Salas v. Hi-Tech Erectors, 168 Wn.2d at 668-69. A decision is based on untenable grounds or for untenable reasons if the trial court applies the wrong legal standard or relies on unsupported facts. In re Detention of Duncan, 167 Wn.2d 398,403,219 P.3d 666 (2009). We conclude the trial court applied the wrong legal standard when overruling Flook's objectionto BrettMyers' testimony. No reliable test for truthfulness exists, such that a witness is not qualified tojudge the truthfulness ofa child's story. UnitedStates v. Azure, 801 F.2d 336,341 (8th Cir. 1986); State v. Dunn, 125 Wn. App. 582, 594, 105 P.3d 1022 (2005). This rule is but a
more specific application ofthe general rule that no witness may give an opinion on another witness's credibility. State v. Neidigh, 78 Wn. App. 71, 76-77, 895 P.2d 423 13No. 34220-4-111 State v. Flook (1995); State v. Wright, 76 Wn. App. 811, 821-22, 888 P.2d 1214 (1995); State v. SuarezBravo, 72 Wn. App. 359,366,864 P.2d 426 (1994); State v. Padilla, 69 Wn. App. 295, 299, 846 P.2d 564 (1993); State v. Walden, 69 Wn. App. 183, 186-87, 847 P.2d 956 (1993); State v. Smith, 67 Wn. App. 838, 846, 841 P.2d 76 (1992); State v. Stover, 67 Wn. App. 228,231, 834 P.2d 671 (1992); State v. Casteneda-Perez, 61 Wn. App. 354, 362-63, 810 P.2d 74 (1991); State v. Barrow, 60 Wn. App. 869, 875, 809 P.2d 209 (1991). Lay opinion ofthe truthfulness ofanother is not helpful withinthe meaning of ER701, because thejury can assess credibility as well or betterthan the lay witness. State v. Carlson, 80 Wn. App. 116, 123, 906 P.2d 999 (1995). In most sexual abuse cases, the respective credibility ofthe victim and the defendant is a crucial question because the testimony ofeach directly conflicts and the two are the only percipientwitnesses. State v. Alexander, 64 Wn. App. 147, 154, 822 P.2d 1250 (1992); State v. Fitzgerald, 39 Wn. App. 652, 657, 694 P.2d 1117 (1985). Therefore, declaring the victim to be telling the truth in essence opines thatthe defendant is guilty. Declaring the defendant to be prevaricating also in essence opines that the defendant is guilty. Opinions on guilt are improper whether made directly orby inference. State v. Quaale, 182 Wn.2d 191,199,340P.3d 213 (2014); State v. Montgomery, 163 Wn.2d 577, 594, 183 P.3d 267 (2008). SheriffBrettMyers did not directly testify that A.S. told the truth when describing Roger Flook's touching her genitalia. Myers did not explicitly state that he believed 14No. 34220-4-111 State v. Flook

A.S.'s allegations. Instead, Myers told thejurythat all ofA.S.'sbody language was consistent with telling the truth. Conversely, according to Myers, A.S. gave no signs of deception. The Washington Supreme Courthas addressed whethertestimony ofa witness concerning the reliability ofstatements ofanother witness constitutes impermissible vouching. The Supreme Court wrote: In determining whether such statements are impermissible opinion testimony, the court will consider the circumstances ofthe case, including the following factors: (1) the type ofwitness involved, (2) the specific nature ofthe testimony, (3) the nature ofthe charges, (4) the type of defense, and (5) the other evidence before the trier offact. State v. Kirkman, 159 Wn.2d 918,928, 155 P.3d 125 (2007) (internal quotation marks omitted). We address these five factors with respect to SheriffBrettMyers' comments about A.S. Testimony from a law enforcement officer regarding the veracity ofanother witness may be especially prejudicial because an officer's testimony often carries a special aura ofreliability. State v. Kirkman, 159 Wn.2d at 928. As to the second factor, Sheriff Myers essentially told thejurythat A.S. told the truth. More importantly, Myers introduced his testimony by mentioning his training in deception detection and couched his opinion ofA.S.'struthful mannerism as based on his experience and training. In short, Myers qualified himselfand testified as an expert on the credibility ofwitnesses.

15No. 34220-4-III State v. Flook

We distinguish this appeal from State v. Kirkman, 159 Wn.2d 918 (2007), wherein the Washington Supreme Court approved the State's questions regarding the competency protocol that police officers follow with child witnesses. The court observedthat the protocol functionally coincided with the oath every witness takes before testifying. In State v. Montgomery, 163 Wn.2d 577 (2008), the state Supreme Court reiterated an observation from Kirkman, that to avoid inviting witnesses to express theirpersonal beliefs, one permissible and perhaps preferred way is for trial counsel to phrase the question "is it consistent with" instead of"do you believe." State v. Montgomery, 163 Wn.2d at 592. SheriffBrettMyers' testimony follows this formula. Nevertheless, his testimony wentbeyond the formula. The third Kirkman factor is the nature ofthe suit. Our appeal involves sexual touching ofa child. Cases involving child sex abuse inevitably render the child's credibility a central issue. State v. Kirkman, 159 Wn.2d at 933. In most sexual abuse cases, the respective credibility ofthe victim and the defendant is a crucial question because the testimony ofeach directly conflicts and the two are the only percipient witnesses. State v. Alexander, 64 Wn. App. at 154 (1992); State v. Fitzgerald, 39 Wn. App. at 657 (1985). The fourth Kirkman factor is the nature ofthe defense. Roger Flook's defense was
a general denial. The defense hinged on emphasizing inconsistencies in A.S.'s testimony and Flook's innocent explanation. Roger Flook did not testify attrial. Nevertheless, the 16No. 34220-4-III State v. Flook

State presented testimony from SheriffBrettMyers that Flook, during a police interview, denied any touching ofA.S.'sprivate area. Thus, the State indirectly told thejury of Flook's defense. The fifth and lastKirkman factor is other evidence. The State lackedphysical evidence and corroborating eyewitness testimony. The State's evidence includedA.S.'s testimony and SheriffMyers' testimony about A.S. and Flook. All five Kirkman factors favor RogerFlook. Therefore, we hold the trial court applied the wrong legal standard whenpermitting the testimony andthereby abused its discretion. We later discuss the harm ofthe impermissible vouching. Testimony aboutRoger Flook We agree with the State that Roger Flook did not object belowto SheriffBrett Myers' testimony concerning Flook's behavior during Myers' interview ofFlook. Therefore, unless Flook meets the stringentrequirements ofRAP 2.5, this court will not review this assignment oferror. RAP 2.5(a) formalizes a fundamental principle ofappellate review. The first sentence ofRAP 2.5 reads: (a) Errors Raised for First Time on Review. The appellate court may refuse to review any claim oferror which was notraised in the trial court. No procedural principle is more familiar than that a constitutional right, or a right ofany other sort, may be forfeited in criminal cases by the failure to make timely 17No. 34220-4-III State v. Flook

assertion ofthe right before atribunal havingjurisdictionto determine it. UnitedStates

v. Olano, 507 U.S. 725, 731, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993); Yakus v. United States, 321 U.S. 414,444, 64 S. Ct. 660, 88 L. Ed. 834 (1944). Sound reasoning lies behind the requirement that arguments be first asserted at trial. The prerequisite affords the trial court an opportunity to rule correctly on a matterbefore it can bepresented on appeal. State v. Strine, 176 Wn.2d 742, 749, 293 P.3d 1177 (2013). There is great potential for abuse when aparty does not raise an issue below because a party so situated could simply lie back, not allowing the trial courtto avoid the potential prejudice, gamble

on the verdict, and then seek a new trial on appeal. State v. Weber, 159 Wn.2d 252, 271- 72, 149 P.3d 646 (2006); State v. Emery, 174 Wn.2d 741, 762, 278 P.3d 653 (2012). The theory ofpreservation by timely objection also addresses several other concerns. The rule serves the goal of judicial economy by enabling trial courts to correct mistakes and thereby obviate the needless expense ofappellate review and further triafs, facilitates appellate review by ensuring that a complete record ofthe issues will be available, and prevents adversarial unfairness by ensuring that the prevailingparty is not deprived of victory by claimed errors that he had no opportunity to address. State v. Strine, 176 Wn.2d at 749-50; State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1998). Countervailingpolicies support allowing an argument to be raised for the first time

on appeal. Forthis reason, RAP 2.5(a) contains a number ofexceptions. RAP 2.5(a) allows an appellant to raise for the first time "manifesterror affecting a constitutional 18No. 34220-4-111 

### State v. Flook right," an exception on which criminal appellants commonly rely. Constitutional errors

are treated specially under RAP 2.5(a) because they often result in serious injusticeto the accused and may adversely affect public perceptions ofthe fairness and integrity of judicialproceedings. 

### State v. Scott, 110 Wn.2d at 686-87. Prohibiting all constitutional

errors from being raised for the first time on appeal would result in unjust imprisonment. 2A 

### KARL B. TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE RAP 2.5 author's cmt. 6, at 218 (8th ed. 2014). Onthe otherhand, "permitting 

### everypossible constitutional

errorto be raised for the first time on appeal undermines the trial process, generates unnecessary appeals, creates undesirable retrials and is wasteful ofthe limitedresources ofprosecutors, public defenders and courts." 

### State v. Lynn, 67 Wn. App. 339, 344, 835 P.2d 251 (1992). Washington courts and even decisions internally have announced differing formulations for "manifesterror." First, a manifest error is one "truly ofconstitutional magnitude." 

### State v. Scott, 110 Wn.2d at 688. Second, perhaps perverting the term "manifest," some decisions emphasize prejudice, not obviousness. The defendant must identify a constitutional error and show how, in the context ofthe trial, the alleged error actually affected the defendant's rights. It is this showing ofactual prejudice thatmakes the error "manifest," allowing appellate review. 

### State v. O'Hara, 167 Wn.2d 91, 99,217 P.3d 756 (2009); 

### State v. Scott, 110 Wn.2d at 688; 

### State v. Lynn, 67 Wn. App. at 346. A third and important formulation for purposes ofthis appeal is the facts necessary to 19No. 34220-4-III State v. Flook adjudicate the claimed error must be in the record on appeal. State v. McFarland, 127 Wn.2d 322,333,899P.2d 1251 (1995); State v. Riley, 121 Wn.2d 22, 31,846P.2d 1365 (1993). Forthe same reasons that we conclude that SheriffBrettMyers' testimony concerning A.S.'s credibility constituted impermissible witness vouching, we conclude that Myers' testimony concerning his interview ofRoger Flook to constituteproscribed witness vouching. Although SheriffMyers did not directly declare Flookto be a liar, Myers characterized Flook as deceptive and evasive. Myers accused Flook ofpossessing

a convenient memory and a convenient loss ofmemory. The purpose ofMyers' testimony was to destroy Flook's credibility and defense ofa general denial. Myers promoted his testimony as based on his experience and training as a law enforcement officer. The attack on Flook's veracity focused on the heart ofthe prosecution. To repeat, the State lacked physical evidence and corroboratingtestimony from apercipient witness. We also determine the errorto be manifest constitutional error. In so holding, we employ the test that manifest constitutional error involves a constitutional error that had practical and identifiable consequences in the trial ofthe case. State v. Lynn, 67 Wn. App. at 345. Lay witness testimony about the victim's or defendant's credibility implicates the accused's guilt or innocence and thus implicates the accused's right to a fair trial and 20No. 34220-4-III State v. Flook impartialjury under article I, section 21 ofthe Washington State Constitution and the Sixth Amendment to the United States Constitution. State v. Johnson, 152 Wn. App. 924, 934, 219 P.3d 958 (2009). The admission oftestimony vouching for a witness is constitutional error because such evidence violates the defendant's constitutional rightto

ajurytrial, which includes the independent determination ofthe facts by thejury. State

v. Quaale, 182 Wn.2d at 199 (2014); State v. Kirkman, 159 Wn.2d at 927 (2007); State v. Florczak, 76 Wn. App. 55, 74, 882 P.2d 199 (1994). Vouching testimony is also manifest errorbecause the erroneous evidence actually affects an accused's right to a fair trial. State v. Johnson, 152 Wn. App. at 934. Upon a showing by the appellant ofconstitutional error, the State must showthat the errorwas harmless beyond a reasonable doubt. State v. Miller, 131 Wn.2d 78, 90, 929 P.2d 372 (1997). Manifest constitutional error is harmless only ifthe untainted evidence is so overwhelmingthat it necessarily supports a guilty verdict. State 

### v. Guloy, 104 Wn.2d at 426 (1985); State v. Jones, 71 Wn. App. 798, 813, 863 P.2d 85 (1993). Any errorthat infringes on a constitutional right is presumedprejudicial. State v. Dunn, 125 Wn. App. at 593 (2005). Four Washington decisions compel reversal ofRogerFlook's guilty conviction. In State v. Sutherby, 138 Wn. App. 609, 158 P.3d 91 (2007), aff'don othergrounds, 165 Wn.2d 870,204 P.3d 916 (2009), ajury convictedRandy Sutherby ofchildrape and child molestation, among other charges. This courtreversed because the trial court 21 

# lNo. 34220-4-III State v. Flook

allowed the victim's motherto testify that her daughter was telling the truth. The mother stated she could determine ifher daughter lied because ofa half-smile that appeared on the child's face onprevarication. A second important decision is State v. Alexander, 64 Wn. App. 147 (1992). The prosecution questioned the victim's counselor, David Bennett, about whetherthe victim gave any indication that she was lying about the abuse. Bennetttestified he did not believe the victim lied. This court reversed the conviction ofRobert Alexander for child rape. By declaring the victim to be speaking the truth, Bennettessentially opined onthe guilt ofAlexander. An expert's opinion as to the defendant's guilt invades thejury's exclusive function to weighthe evidence and determine credibility. Without analysis, this court also concludedthat the error, combined with other error, was notharmless beyond a reasonable doubt. Another important decision is State v. Dunn, 125 Wn. App. 582 (2005). This courtreversed another conviction for rape ofa child onthe ground ofinadmissible testimony. Physician's assistant, James Kramer, testified that, despite an absence ofany physical evidence ofrape, he concludedthat sexual abuse occurred because ofthe detailed story told him by the victim. The impermissible testimony was prejudicial because the only evidence ofsexual abuse was the child's own testimony and hearsay statements to others. The evidence was sufficientto convict Larry Dunn ofrape, but still

22No. 34220-4-111 State v. Flook

not harmless. The trial became a credibility contestbetween the alleged victim and the accused. A final compelling decision is State v. Johnson, 152 Wn. App. 924 (2009). The State charged Gerald Johnson with child molestation. His trial counsel failed to object to impermissible opinion testimony. Thejuryheard testimony that Johnson's wife believed the story ofthe victim. The court held the testimony to be reversible and manifest constitutional error. The testimony invaded Johnson's right under article I, section 2 of the Washington Constitution for a fair trial before an impartialjury. The State astutely observes that only explicit or almost explicit statements by a witness rise to the level ofconstitutional error reviewable for the first time on appeal. State v. Kirkman, 159 Wn.2d at 937 (2007). The State contends that SheriffBrettMyers did not engage in explicit vouching. Roger Flook argues that Myers' testimony is sufficiently explicit to rise to the level ofconstitutional error. We agree with Flook. SheriffMyers' testimony inevitably told thejurythat Flook, in Myers' view, prevaricated. State v. Barr, 123 Wn. App. 373, 98 P.3d 518 (2004) enlightens our opinion. Derrick Barr met A.J. at a bar, where both imbibed. The two departed the bar. According to A.J., Barrthen pushed her into the back ofa car and forced herto have anal, oral, and vaginal sex with him. When released, A.J. ran naked from the waist down while screaming and sobbing. A.J. suffered abrasions, bruising, and a bite mark. 23No. 34220-4-III State v. Flook According to Barr, A.J. seduced him. Attrial, OfficerBrett Koss testified about interviewing Barr while employing the Reid Investigative Technique, which entailedthe

use ofverbal and nonverbal clues to determine an interviewee's deceptiveness. On direct examination, Koss testified to signals ofdeception: What I have been taught [by] some ofthese schools is people feel guilty and that they realize there is [sic] consequences and lots oftimes they'll verbalize those fears. So it was obvious to me he was afraid he was going to go to prison for this

.

. . . [T]hat's one ofthe big flags like that and like utterances about the thing going to prison, those are big flags when you see those things start to bunch together. You get an idea somebody is being deceptive

.

. . .Again, it didn't seem genuine to me. 

### It didn't seem like ifhe was really feeling these emotions and that worked up he would be hitting the table and stuff. He wouldn't have these ups and downs so quickly. State v. Barr, 123 Wn. App. at 378-79 (alteration in original) (italics omitted). In analyzing OfficerBrett Koss's testimony, this court observed: The State maintains that the testimony here was not improper because the officer did not testify that Mr. Barrwas being deceptive, but, rather, the officer's testimony consisted ofobservations ofMr. Barr's behavior indicating that there were signs that Mr. Barrwas being deceptive. This is a distinction without a difference. The officer's testimony was clearly designed to give the officer's opinion as to whetherMr. Barrhad committed the offense

.... In short, the officer's testimony invaded the province ofthejuryby impermissibly commenting on Mr. Barr's guilt. State v. Barr, 123 Wn. App. at 382-83.

24No. 34220-4-111 State v. Flook

The untainted evidence against RogerFlook does not overwhelm. Therefore, the constitutional error likely impactedthe trial. Torepeat a second time, the State, through

no fault ofits own, lackedphysical evidence and corroborating eyewitness testimony. The trial pittedthe veracity ofA.S. and Roger Flook. Therespectedtestimony ofa county sheriffas to the veracity ofthe two would likely influence thejury. Flook's PriorActs Roger Flook seeks reversal ofhis convictions because the trial courtpurportedly, without any analysis on the record, erroneously admitted evidence ofotherbad acts under ER404(b) and the error harmed him. The State responds that the record suffices to establishthat the trial court conducted the appropriate analysis. Becausethis issue may arise on a retrial, we address whetherthe trial court employedthe needed analysis. Because we reverse on other grounds, we do not address whether any error was harmless. Washington's familiar ER404(b) reads, in relevant part: Other Crimes, Wrongs, orActs. Evidence ofother crimes, wrongs, or acts is not admissible to prove the character ofa person in order to show action in conformity therewith. It may, however, be admissible for otherpurposes, such as proofofmotive, opportunity, intent, preparation, plan, knowledge, identity, or absence ofmistake or accident. A trial court's interpretation ofER404(b) is a question oflawthatthis courtreviews de

novo. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). ER404(b) prohibits evidence ofpast misdeeds solely to prove a defendant's criminal propensity. State v. Nelson, 131 Wn. App. 108, 115, 125 P.3d 1008 (2006). Evidence ofpriorbad acts is 25No. 34220-4-III State v. Flook presumed inadmissible, and any doubts as to admissibility are resolved in favor of exclusion. State v. DeVincentis, 150 Wn.2d at 17; State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002). The question asked here is whether RogerFlook's showing of Internet images to A.S., use ofprofanity, telling A.S. that he found a sex toy in A.S.'s mother's drawer, spanking A.S. on her bottom, asking A.S. to sit on his lap in a car in the driveway oftheir home, and kissing A.S. on the neckwas relevant to prove something other than propensity. Before the trial court admits evidence ofprior misconduct under ER404(b), the court must (1) find by a preponderance ofthe evidence that the prior misconduct occurred, (2) identify the purpose for admitting the evidence, (3) determine the relevance ofthe evidence to prove an element ofthe crime, and (4) weigh the probativevalue ofthe evidence against its prejudicial effect. State v. Fisher, 165 Wn.2d 727, 745, 202 P.3d 937 (2009); State v. DeVincentis, 150 Wn.2d at 17. The trial court must conductthe above analysis on the record. State v. Asaeli, 150 Wn. App. 543, 576 n.34, 208 P.3d 1136 (2009). The requirement for on the record balancing facilitates appellate review and

ensures that thejudge gives thoughtful consideration to the issue. State v. Pirtle, 127 Wn.2d 628,651,904 P.2d 245 (1995). The record on appeal shows the trial court identified the purpose ofthe evidenceto be demonstrating a lustful disposition toward A.S., motive, intent, knowledge, and absence ofmistake or accident. We might assume that the trial court consideredthe 26No. 34220-4-III State v. Flook

evidence relevant to whetherRogerFlooktouched A.S.'s private area onJune 6, 2014. Nevertheless, the trial court, on the record, did not find the evidence to likely be true and did not weigh the prejudice ofthe testimony with the probative value ofthe evidence. We direct the trial court, before any retrial, to address all four ER404(b) elements before determining whetherto permitthe evidence at trial. STATEMENT OF ADDITIONAL GROUNDS RogerFlookraises two issues in his statement ofadditional grounds: (1) did the trial court err by not dismissing both charged counts when the elements ofeach count

were not met, and (2) did the State deny Roger Flook his constitutional right to a fair trial. This court requested additional briefing from theparties, as allowed under RAP 10.IO(f), by answering the following questions: (1) Does statement ofadditional ground 1raise a sufficiency ofthe evidence claim or is it limitedto an appeal ofthe motion to dismiss for failure to make a prima facie case made following the State's case in chief? (2) Is there sufficient evidence to support Flook's conviction for child rape in the first degree? In RogerFlook's supplemental brief, he argues the statement ofadditional ground challenges the sufficiency ofthe evidence to convict ofboth crimes. The State asks this courtto considerFlook's statement ofadditional grounds as a challenge to the denial ofa midtrial motion to dismiss. We give Flook the benefit ofthe doubt and review whether sufficient evidence supports the convictions. Since we holdthat sufficient evidence

27No. 34220-4-111 State v. Flook supports the convictions, the State suffers no prejudice. Despite reversing the conviction and remanding for a newtrial on other grounds, we address the sufficiency ofevidence because an absence ofsufficiency would require dismissal ofthe charges withprejudice. Roger Flook contends insufficient evidence establishes penetration ofA.S.'s vagina for purposes ofthe child rape charge. Evidence is sufficient ifa rational trier of fact could find each element ofthe crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). Both direct and indirect evidence may support thejury'sverdict. State v. Brooks, 45 Wn. App. 824, 826, 727 P.2d 988 (1986). This court draws all reasonable inferences in favor ofthe State. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). Only the trier offact weighs the evidence andjudgesthe credibility ofwitnesses. State v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306 (1989). The controlling statute, RCW 9A.44.073, declares: A person is guilty ofrape ofa child in the first degree when the person has sexual intercourse with another who is less thantwelve years old and not married to the perpetrator and the perpetrator is at least twenty-four months olderthan the victim. Another Washington statute defines "sexual intercourse" as: (a) has its ordinary meaning and occurs upon any penetration, however slight, and (b) [a]lso means any penetration ofthe vagina or anus however slight, by an object[.]

28No. 34220-4-111 

### State v. Flook

RCW 9A.44.010(1). "Vagina" means "all ofthe components ofthe female sexual organ and notjust '[t]hepassage leading from the opening ofthe vulvato the cervix ofthe uterus...."' 

### State v. Montgomery, 95 Wn. App. 192,200,974P.2d 904 (1999) (alterations in original) (quoting 

### THEAMERICANHERITAGEDICTIONARYOFTHEENGLISH LANGUAGE, 1970 (3d ed. 1992)). The 

### Montgomery court determined that "vagina" includes the "labia minora." 95 Wn. App. at 201. The labia minora are the two thin inner folds ofskin enclosed by the labia majora. 

### State v. Montgomery, 95 Wn. App. at 201. The State must prove that the defendant penetrated, at a minimum, the lips ofthe sexual organs. 

### State v. Bishop, 63 Wn. App. 15, 19, 816 P.2d 738 (1991). 

### State v. Delgado, 109 Wn. App. 61, 33 P.3d 753 (2001), 

### rev'don othergrounds 148 Wn.2d 733, 63 P.3d 792 (2003), informs our decision. Dumas Delgado took an eight-year-old girl inside his home and puthis hand down herpants, inside her underwear, and rubbed her vagina. The child later told an interviewer and defense investigatorthat Delgado touched her "'up in the inside part of[her] private,'" "'in the folds"' ofher external genitalia, buthis finger did not go into the '"hole"' that goes up inside herbody. 

### State v. Delgado, 109 Wn. App. at 63-64. The court found this evidence sufficient to establishpenetration. 

### State v. Delgado, 109 Wn. App. at 65-66. A.S. testified that Roger Flookpenetrated the folds ofher genitalia. This testimony supported thejury's conviction for first degree rape. Roger Flook also contends that insufficient evidence establishes the crime of 29No. 34220-4-III State v. Flook

sexual molestation. He argues that the evidence does not support a finding that the alleged contact was "sexual contact" within the definition ofRCW 9A.44.0IO and RCW 9A.44.083. Under RCW 9A.44.083(1): A person is guilty ofchild molestation in the first degree whenthe person has, orknowingly causes anotherperson under the age ofeighteen to have, sexual contact with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim. RCW 9A.44.010(2) defines "sexual contact" as any touching ofthe sexual or other intimate parts ofaperson done for the purpose ofgratifying sexual desire ofeitherparty or a third party. While in the criminal context direct evidence ofsexual gratification is not required; the evidence must support an inference ofsexual gratification. State v. Powell, 62 Wn. App. 914, 917-18, 816 P.2d 86 (1991); State v. Price, 127 Wn. App. 193,202, 110 P.3d 1171 (2005), aff'd, 158 Wn.2d 630, 146 P.3d 1183 (2006). In State v. Powell, 62 Wn. App. 914, this court found the evidence insufficientto support an inference thatthe defendant's touching ofa child was for sexual gratification. Harry Powell touched a female child on three occasions: [W]hile she was seated on his lap, [he] hugged her around the chest. As h~ assisted her offhis lap he placed his hand on her "front" and bottom on her underpanties under her skirt. On another occasion, while [the child] was alone with [the defendant] in his truck waiting for her cousin, he touched both her thighs. On both occasions, he only touched her on the

30No. 34220-4-III State v. Flook

outside ofher clothing

.... She was unable to describe how he touched her. State v. Powell, 62 Wn. App. at 916. In finding insufficient evidence, the court emphasized the fact that the touches were fleeting and "equivocal" and thus susceptible ofinnocent explanation. State v. Powell, 62 Wn. App. at 917-18. We explainedthat the defendant touched the child's bottom while lifting her offhis lap; that the child did not remember how the defendant touched her "inthe front part"; that when she told himto stop he said, "Oops" and stopped. The child was clothed on each occasion, the touches

were outside the clothes, and Powell uttered no threats, bribes, or requests notto tell. The court declared that the State must present additional evidence ofsexual gratification when the touching occurs through clothing or when the touching is ofintimateparts ofthe body other than the primary erogenous area. State v. Price, 127 Wn. App. 193 (2005) presents the opposite outcome. This court found sufficient evidence to support an inference ofsexual gratification when the defendant rubbed a child's vagina long enough to cause redness and swelling still visible when the child's mother picked her up from day care. In so holding, the courtexplained that no additional evidence was required because the sexual contact was not fleeting or susceptible ofinnocent explanation. In this appeal, the testimony indicated that RogerFlooktouched A.S.'sprimary erogenous zone multiple times under her clothing. When she rolled away, he said "come

31No. 34220-4-111 State v. Flook

on." There is no innocent explanation for a grown man to puthis hands down an elevenyear-old girl'spants while in bed with her. Sufficient evidence supports "sexual contact." Roger Flook next contends that the prosecuting attorney breached his constitutional duty when he failed to investigate false and contradictory testimony. Flook emphasizes multiple witnesses provided conflicting statements. He characterizes these contradictions as false testimony. We considerthis argument to raise a due process contention. Under the United States Constitution, the Sixth and Fourteenth Amendments guarantee persons accused ofa crime the right to a fair trial. State v. Davis, 141 Wn.2d 798, 824-25, 10 P.3d 977 (2000). The Washington Constitutionprovides a similar safeguard. WASH. CONST. art. 

### I, §§ 3, 22. The due process clause ofthe FourteenthAmendmentto the United States Constitution imposes onprosecutors a duty notto introduce perjuredtestimony oruse evidence known to be false to convict a defendant. State v. Finnegan, 6 Wn. App. 612, 616,495 P.2d 674 (1972). This duty requires the prosecutorto correct State witnesses who testify falsely. Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959); State v. Finnegan, 6 Wn. App. at 616. To succeed on his claim thatthe prosecutorused false evidence to convict him, Flook must show that (1) the testimony or evidence was actually false, (2) the prosecutor knew or should have knownthat the 32No. 34220-4-III State v. Flook testimony was actually false, and (3) that the false testimony was material. UnitedStates

v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003). Though Roger Flook identifies some contradictions in testimony ofvarious witnesses, he provides no support for his contentionthat the State knowingly presented false testimony. Contradiction is normal when witnesses view events from different vantage points. Contradiction does not equate to lies. Contradiction does not mean perjury. CONCLUSION We reverse Roger Flook's convictions for child rape and child molestation. We remand for a new trial consistent with this opinion, rather than dismissal. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040. 

# i .s Feari~ 1 WE CONCUR:

Siddoway, J.

Lawrence-Berrey, J. 

## j 33