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      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 No. 71246-2-1
                      Respondent,
       v.                                        DIVISION ONE


LEBARON RODNEY PRIM,                             UNPUBLISHED OPINION


                     Appellant.                  FILED: June 15, 2015



       Leach, J. — LeBaron Rodney Prim appeals his conviction for second

degree rape of a child. He argues that the State unconstitutionally infringed on

his right to confront witnesses and to a fair trial when the prosecutor asked the

complaining witness if she wanted to be in the courtroom testifying. Because the

prosecutor's question bolstered the credibility of the witness on          redirect

examination rather than commented on Prim's right to confrontation or a fair trial,

the court did not err when it overruled Prim's objection and denied Prim's motion

for mistrial. We affirm.


                                    Background

       LeBaron Rodney Prim met J.J. on December 27, 2011.            Prim and his

brother Roderick Houston were in Washington visiting their mother, Coilette Inge.

Twelve-year-old J.J. was a former friend of Houston's from school who came to

Inge's house to visit Houston.
No. 71246-2-1/2




         J.J. began text messaging with Prim the same day. She left her house

through her bedroom window that night without telling her father she was leaving

and again went to Inge's house. She found Houston and Prim watching a movie.

Several minutes after she arrived, Prim signaled to J.J. to follow him. They

kissed in a bathroom, and Prim asked her if she wanted to have sexual

intercourse.    She nodded yes.     They had sexual intercourse on the bathroom

floor.


         After J.J.'s father reported this incident, the police investigated J.J.'s

allegations and referred the case to the prosecutor, who charged Prim with

second degree rape of a child. J.J. testified at trial. On cross-examination, the

defense questioned J.J. about the events, the statements she had made to

others, and the text messaging she had done.         On redirect examination, the

prosecutor asked J.J., over defense counsel's objection, why J.J. did not

remember the incident and whether she wanted to remember. The prosecutor

then asked over objection if she wanted to "be here today."        Prim moved for

mistrial after J.J.'s testimony, arguing that the prosecutor's question implied that

Prim was to blame for making J.J. testify, constituting a comment on Prim's

constitutional right to trial. The prosecutor claimed that Prim had attacked J.J.'s

credibility on cross-examination.      The trial court overruled the objection and

denied the motion, noting that "[cjlearly the witness was somewhat reluctant, so

in a way it was asking the obvious."

         A jury found Prim guilty. Prim appeals.



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                                     Analysis

       Prim argues that the        prosecutor improperly commented on his

constitutional rights to confront a witness and to a fair trial with the challenged

questions to J.J.

       To show a prosecutor's comment denied a defendant a fair trial, the

defendant must show that a prosecutor's conduct was both improper and

prejudicial.1 Where a prosecutor's comments are improper and defense counsel

objected at trial, the defendant must show a substantial likelihood that the

comments prejudiced the jury's verdict.2 We review a prosecutor's allegedly

improper arguments in the context of the entire argument, the issues in the case,

the evidence the argument relied on, and the jury instructions.3

       At trial, the prosecutor asked J.J. a series of questions on redirect

examination:


      [PROSECUTOR]:        Why don't you remember [how many times you
                           had been to Inge's house before December
                           27]?

      [J.J.]:              It's hard to remember because it was a long
                           time ago, and some things are kind of vague.

      [PROSECUTOR]:        Do you want to remember?

      [J.J.]:              No.

      [PROSECUTOR]:        How come?

      [DEFENSE]:           Object as to relevance.


      1 State v. Thorqerson. 172 Wn.2d 438, 442, 258 P.3d 43 (2011).
      2 State v. Emery. 174 Wn.2d 741, 760, 278 P.3d 653 (2012).
      3 State v. Russell. 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994).
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       THE COURT:            Overruled. . . .




       [JJ.]:                What was the question again?

       [PROSECUTOR]:         I asked you do you want to remember and you
                             said no, and I said how come.

       [JJ]:                 Because it's painful to think about.

       [PROSECUTOR]:        Why?

       [J.J.]:               Because I can't go back and change things.

       [PROSECUTOR]:        [J.J.], do you want to be here today?

       [DEFENSE]:            I'd object as to relevance.

       THE COURT:           Overruled.

       [J.J.]:              No.

       [PROSECUTOR]:        How come?

       [J.J.]:               It's uncomfortable.

       Prim argues that the prosecutor's question implied that Prim had caused

J.J. additional harm by exercising his right to a trial and to confront witnesses.

       The federal and state constitutions guarantee a defendant the right to a

fair trial where he can confront witnesses.4 And the State may not draw adverse

inferences from a defendant's exercise of a constitutional right.5           When a

prosecutor's comment implicates a constitutional right, we review under the

constitutional harmless error standard, which requires that this court reverse



       4 U.S. Const, amends. VI, XIV; Wash. Const, art. I, § 22.
       5 State v. Moreno, 132 Wn. App. 663, 672-73, 132 P.3d 1137 (2006)
(quoting State v. Rupe. 101 Wn.2d 664, 705, 683 P.2d 571 (1984)).


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unless overwhelming evidence convinces us beyond a reasonable doubt of the

defendant's guilt.6      But "not all arguments touching upon a defendant's

constitutional rights are impermissible comments on the exercise of those

rights."7 We look to see if the prosecutor manifestly intended the remarks to be a

comment on a defendant's constitutional rights.8           Where the focus of a

prosecutor's question is not on the right itself, it does not violate the defendant's

constitutional right at issue.9

        In State v. Gregory.10 the State tried the defendant on three counts of

rape.   During trial, the prosecutor asked the alleged victim how she felt about

having to testify; she testified over objection that it was a "horrific experience"

and that she hated having to remember everything.11           On appeal, Gregory

argued that asking the alleged victim how she felt about cross-examination

violated his rights to a fair trial and confrontation.12      Our Supreme Court

concluded that because the prosecutor's questions focused on the victim's

credibility and not Gregory's constitutional rights, the questions did not violate

those rights.13




      6 Moreno. 132 Wn. App. at 671-72.
      7 State v. Gregory. 158 Wn.2d 759, 806, 147 P.3d 1201 (2006) overruled
on other grounds bv State v. W.R.. 181 Wn.2d 757, 336 P.3d 1134 (2014).
        8 Gregory. 158 Wn.2d at 806-07.
        9 Gregory. 158 Wn.2d at 807.
        10 158 Wn.2d 759, 778, 147 P.3d 1201 (2006) overruled on other grounds
bv State v.W.R.. 181 Wn.2d 757, 336 P.3d 1134 (2014).
        11 Gregory. 158 Wn.2d at 805-06.
        12 Gregory. 158 Wn.2d at 806.
        13 Gregory. 158 Wn.2d at 808.
No. 71246-2-1/6




       The Gregory court distinguished State v. Jones.14 In Jones, the defendant

took issue with the prosecutor's positioning between himself and the seven-year-

old victim as she testified.15 The prosecutor in Jones's cross-examination drew

attention to the fact that Jones had been "frustrated" that she had blocked his

view of the victim.16 And in her closing argument, the prosecutor stated that

while society purports to care about children, "we still have a system that requires

that child to . . . sit in this chair in a courtroom such as this, with the defendant

sitting right there, staring at them."17 This court found the prosecutor's comments

invited the jury to draw a negative inference from the defendant's exercise of his

right to confrontation of an accusing witness.18 It also found that the improper

comments were harmless beyond a reasonable doubt due to overwhelming

evidence of Jones's guilt.19    And in State v. Moreno.20 when the prosecutor

pointed directly to the defendant's constitutional right, arguing that the defendant

exercised his right to defend himself because power was so important to him, this

court found—and the State conceded—that the comment was improper.

       Prim argues that like Jones, the prosecutor's questions to J.J. pointed

directly to Prim's constitutional right to confront J.J. rather than to J.J.'s

credibility. Because Prim did not testify, he argues that unlike Gregory, the case



       14   71 Wn. App. 798, 863 P.2d 85 (1993).
       15   Jones. 71 Wn. App. at 805.
       16   Jones. 71 Wn. App. at 805.
       17   Jones. 71 Wn. App. at 805-06.
       18   Jones. 71 Wn. App. at 811-12.
       19   Jones. 71 Wn. App. at 812.
       20   132 Wn. App. 663, 672-73, 132 P.3d 1137 (2006).
No. 71246-2-1/7




was not a credibility contest between the alleged victim and the defendant. But

the record shows that Prim's attack on J.J.'s credibility was a large part of his

defense. In closing argument, Prim argued that the State failed to prove its case

beyond a reasonable doubt but also argued that "the only evidence that would

establish the necessary element that Rodney Prim had intercourse with [J.J.] is

her account of what happened, and there are many different accounts and they

don't fit together."   In closing, Prim consistently framed the case in terms of

credibility, telling the jury that "[t]he real question is which telling of the story do

you choose to believe."

       Viewing the prosecutor's questions in the context of the entire argument,

the record shows that the challenged questions do not focus on Prim's exercise

of his constitutional rights. When J.J. testified for the State, she repeatedly could

not remember specific information.       During his cross-examination of J.J., Prim

exposed inconsistencies in her testimony, asked her about how "ironically" in her

written statement she wrote that she was trying to be truthful but that she had

initially lied to her father about what had happened, and challenged her memory

as to the text messaging she had sent. This cross-examination directly attacked

J.J.'s credibility. The record shows that the prosecutor on redirect examination

asked questions aimed at restoring J.J.'s credibility.           In this context, the

prosecutor asked J.J. why she couldn't remember certain information and asked

if she wanted to be there testifying.     Thus, the prosecutor's questions did not

comment on the defendant's right to confrontation or a fair trial but attempted to



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No. 71246-2-1/8




explain J.J.'s reluctance, lack of memory, and inconsistencies to the jury. We

thus conclude that the prosecutor's questions were not improper.

                                     Conclusion


       Because the prosecutor's questions did not focus on Prim's constitutional

right to confrontation or a fair trial, they were not improper, and the trial court did

not err when it overruled Prim's objection or denied Prim's motion for mistrial.

We affirm.




WE CONCUR:




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