                                                                  FILED
                                                               JUNE 25, 2020
                                                       In the Office of the Clerk of Court
                                                      WA State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

STATE OF WASHINGTON,                         )         No. 35297-8-III
                                             )
                     Respondent,             )
                                             )
               v.                            )         UNPUBLISHED OPINION
                                             )
CHAD GERRIT BENNETT,                         )
                                             )
                     Appellant.              )

       LAWRENCE-BERREY, J. — Chad Bennett appeals his 2017 conviction and 660-

month exceptional sentence for the second degree intentional murder of his 82-year-old

landlord, Lucille Moore. We find no prejudicial error and affirm.

                              FACTS AND PROCEDURE

       Lucille Moore owned and rented out several homes in her Ephrata neighborhood.

In late July 2014, she rented a house to Chad Bennett, then age 24, and married with four

children. Mr. Bennett was employed as a farm worker for C & C Farms, owned by the

Cobb family.

       On September 7, 2014, Mr. Bennett went to Ms. Moore’s house to pay his rent.

According to Bennett, he was there three times that day: first at around 12:30 p.m. to pay
No. 35297-8-III
State v. Bennett


rent, second to pay the remainder of his deposit, and third at around 1:00 p.m. to retrieve

his wallet, which he had inadvertently left behind.

       On the morning of September 8, 2014, Moore’s neighbor, Joyce Andersen, found

Ms. Moore lying on the floor with a pillow over her face and her shirt soaked with blood.

Ms. Andersen called police, who saw a slash across Moore’s throat and confirmed she

was dead. Forensic pathologist Dr. Eric Kiesel later determined Moore had sustained

multiple significant head injuries, was likely manually strangled, had received two

shallow cuts and a stab wound to her neck, and was stabbed 17 times in her chest, 11 of

which penetrated her heart.

       Detective Todd Hufman was the lead detective. He set forth details of his

investigation in a probable cause statement. Hufman enlisted the Washington State Patrol

(WSP) Crime Scene Response Team (CSRT) to help process the scene. CRST’s team

leader, forensic scientist Trevor Allen, worked with Hufman to prioritize collection of

items that could contain deoxyribonucleic acid (DNA) evidence. Among those items sent

for testing were the blood-stained pillow, a swab of a bloodstain located on a kitchen

cabinet door, and a cigarette butt found on the floor near Moore’s body.

       Ms. Andersen told investigators she had last seen Moore on Saturday, September

6, around 7:30 p.m. Moore’s daughter, Wendy Swain, reported last speaking to her


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State v. Bennett


September 6, around 2:30 p.m. Moore’s pastor confirmed she had attended Sunday

church services on September 7, from 9:00-10:15 a.m. Moore declined a lunch date with

Ms. Andersen that day, saying she needed to be at her house around 12:30 p.m. because

her tenants from 106 G Street NE (Chad and Trisha Bennett) were coming over to pay

their delinquent rent.

       Detective Hufman contacted Chad Bennett. Bennett said he went to Moore’s

residence on Sunday, September 7, between noon and 1:00 p.m. and paid his rent. In later

interviews, Bennett told Hufman he had been to Moore’s house three times after

10:30 a.m. that day—first to pay rent, second to pay money still owing on the deposit, and

third to retrieve his wallet after Moore called and told him that he had left it. He also

gave various descriptions of his activities and whereabouts throughout that day. Bennett

agreed to give a DNA sample. Ultimately, investigators determined Bennett was the last

known person to have seen Moore alive on September 7.

       WSP Crime Laboratory forensic scientist Anna Wilson reported DNA test findings

on November 21, 2014. DNA matching Chad Bennett’s was present on the cigarette

butt, with a 1 in 1.1 sextillion probability of selecting an unrelated individual at random

with a matching profile. The bloodstain swab from the kitchen cabinet matched Bennett’s

Y-STR DNA typing profile. Neither he nor any of his paternal male relatives could be


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No. 35297-8-III
State v. Bennett


excluded as a donor. The profile is not expected to occur more frequently than 1 in 8,600

males in the United States population. One area of the pillow contained a mixture of

three male individuals, with the major contributor matching Bennett’s Y-STR DNA

typing profile. Again, neither he nor any of his paternal male relatives could be excluded

as a donor, and the profile is not expected to occur more frequently than 1 in 8,600 males

in the United States population. A second area on the top side of the pillow contained

two DNA profiles, one from the victim. The other profile matched Bennett’s DNA, with

an estimated 1 in 50 billion probability of selecting an unrelated individual at random

from the United States population with a matching profile.

       Bennett was arrested on November 25, 2014, and charged with first degree

murder.

       On December 16, 2014, the court entered an omnibus order directing the State to

provide the defense with “[a]ll photographs, police reports, lab reports, witness

statements, audio and video recordings and State’s witness list . . . by December 29,

2014.” Clerk’s Papers (CP) at 2245. Trial was originally set for January 22, 2015, but

was continued several times throughout 2015 and into the first half of 2016.

       Meanwhile, on December 2, 2014, Detective Hufman began receiving recordings

of Bennett’s jail calls. A recorded message at the beginning of each call informed the


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No. 35297-8-III
State v. Bennett


persons on the line that the call was subject to recording and monitoring. Hufman

eventually accumulated more than 250 hours of Bennett’s recorded jail calls over the next

18 months.

       Until April 2016, the parties had anticipated the trial would be held in September

of that year. In April, defense counsel David Bustamante was occupied in an unrelated

homicide trial and, after that trial, would need ample time to review the State’s evidence

in Bennett’s case. However, four days after the unrelated trial concluded on April 21, the

State learned Bennett was now demanding an immediate trial. On May 13, the court set

trial for June 8, with a speedy trial expiration date of July 8. On May 31, the court

continued the trial to July 7, 2016.

       On June 1, 2016, Bustamante conducted a pretrial interview with crime lab

forensic scientist, Anna Wilson. Deputy prosecutor Edward Owens and the State’s in-

house investigator, Dan Dale, were also present. During the interview, Wilson told

Bustamante that she was just assigned a new request to test Moore’s blood-soaked shirt.

Bustamante responded, “Oh, good.” CP at 203. The shirt had been collected as evidence

in September 2014, but Wilson believed it was too blood soaked to likely yield any DNA

other than Moore’s. She thought the massive amount of female DNA would likely mask




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No. 35297-8-III
State v. Bennett


any male DNA. Due to the crime lab’s resource limitations, it chose other items for

testing that it considered more likely to identify the killer.

       The new request to test the shirt came from Owens after he and Dale learned from

Wilson in a late May interview that Bennett was an unusually “heavy shedder” of his

DNA, meaning he left more DNA on items he touched than most persons would. CP at

281. Dale, a former trooper with the WSP, asked whether that would make it more likely

Bennett’s DNA could be recovered from Moore’s blood-saturated shirt. Considering the

high amount of Bennett’s DNA present on the blood-stained pillow, Wilson concluded

there was a greater chance the shirt would yield useful evidence than originally believed.

She agreed to test the shirt.

       In a June 6, 2016 pretrial hearing, Bustamante told the court he approved testing

the shirt because he believed the results might exonerate Bennett, but he was otherwise

concerned about the timing and ability of his defense DNA expert, Dr. Randell Libby, to

review the results in advance of the July 7 trial. He did not, however, object to the late

testing.

       Wilson produced the DNA test results on June 29, 2016. DNA obtained from

several areas on the front of the shirt showed a mixture consistent with three male

individuals, with the partial major Y-STR profile matching Bennett. Neither he nor any


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No. 35297-8-III
State v. Bennett


of his paternal male relatives could be excluded as the donor. In one area of the shirt, the

profile is not expected to occur more frequently than 1 in 9,400 male individuals in the

United States population. In other areas of the shirt, including around the puncture holes,

the profile is not expected to occur more frequently than 1 in 75 male individuals in the

United States population. Other potential suspects, including Wendy Swain’s boyfriend

John Rehfield, Ricky Swain, and Guy Austin (Moore’s former boyfriend) were excluded

as contributors of any DNA on the shirt. There was no male DNA detected on the neck

area of the shirt. The test procedure consumed the entire DNA sample, as agreed to in

advance by the defense.

       Meanwhile, Detective Hufman had been listening to recordings of Bennett’s jail

calls but he was nine months behind due to time constraints. In late April 2016, he started

listening to the recordings of Bennett’s calls made between December 2, 2014, and

January 27, 2015. Sometime after June 6, 2016, he heard for the first time a late 2014

conversation in which Bennett cautioned his wife Trisha that they needed to keep their

stories straight. Hufman notified the prosecutor’s office and, on June 15, delivered a

report and a copy of all of the recordings he had reviewed to that date. All the while—

since December 2014—Hufman did not want Bennett to know law enforcement was

reviewing his calls, so he unilaterally decided to withhold the recordings from the


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No. 35297-8-III
State v. Bennett


prosecution. For this reason, Bustamante was not apprised of the recordings until the

prosecutor gave him a compact disc (CD) containing over 200 hours’ worth of calls on

June 17, 2016.

       On July 1, 2016, Bennett moved to dismiss the charge for governmental

mismanagement under CrR 8.3(b), alleging the State had untimely tested the shirt it had

in its possession since September 2014 and that it violated the omnibus order by

deliberately withholding over 200 hours of recorded phone calls until June 2016.

Bustamante explained the defense team would be unable to finish listening to all of the

jail call recordings by the trial date, and the defense DNA expert would need four to five

weeks to analyze the new test results—all of which would necessitate adjusting trial

strategy accordingly. Bennett argued the State’s mismanagement prejudiced his right to a

fair trial by forcing him into a “Hobson’s choice” between his speedy trial right and his

right to effective assistance of counsel. CP at 150. As alternatives to dismissal, Bennett

asked the court to suppress all evidence received after May 31, 2016, or continue the trial

two months.

       The State denied any mismanagement, but joined in the request for a two-month

trial continuance to September 2016, as the parties had earlier contemplated before

Bennett’s immediate trial demand in late April. The court denied Bennett’s motion to


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No. 35297-8-III
State v. Bennett


dismiss or suppress evidence, but granted a two-month continuance. Additional facts

relating to the CrR 8.3(b) dismissal motion are discussed in the analysis.

       The jury trial began in September 2016. The State’s theory was that Bennett was

the last person known to see Moore alive on September 7, 2014, his DNA was present on

multiple items at the crime scene, he gave inconsistent statements to police about his

activities and whereabouts on the afternoon of September 7, and he became enraged at

Moore and killed her because she was about to evict him for nonpayment of rent. The

defense theory, as argued in closing, was that Bennett’s DNA was on the items in

question because he was in Moore’s house paying rent, not because he killed her.

Because he paid his rent, he had no reason to be angry with her or kill her. He argued the

killer could have been Moore’s daughter or another of Moore’s tenants who was

delinquent on rent. Those persons’ DNA were not tested. Bennett did not testify. The

jury could not reach a unanimous verdict, and the court declared a mistrial.

       Prior to the second trial, the State asked Bennett whether he intended to proffer

“other suspect” evidence, and, if so, to identify the other suspects.1 In response, Bennett

identified Moore’s daughter Wendy Swain and her boyfriend John Rehfield, tenants




       1
           The State had not moved to limit “other suspect” evidence in the first trial.

                                                9
No. 35297-8-III
State v. Bennett


Charles and Brandi Larr who struggled to pay rent, and any of Moore’s other tenants who

were delinquent on rent.

       The State moved in limine to exclude the other suspect evidence on the grounds

that Bennett had failed to proffer any nonspeculative evidence tending to create a

reasonable doubt as to Bennett’s guilt. The trial court granted the State’s motion and

excluded Bennett’s other suspect evidence. Additional aspects related to the court’s

ruling are discussed in the analysis.

       The second jury trial began in February 2017. The State’s theory of the case,

again, was that Bennett went into a rage and killed Moore on September 7 because he

could not pay his overdue rent and she was about to evict him. The State posited that

Bennett returned to Moore’s house later on September 7 with his wife to clean up the

murder scene.

       The State’s evidence detailed the discovery of Moore’s body on September 8, the

ensuing investigation and determination that Bennett was the last known person to be in

Moore’s house and see her alive. The evidence also included testimony of Detective

Hufman relating Bennett’s various accounts of his whereabouts and activities on the

afternoon and evening of September 7, testimony of Dr. Kiesel about Moore’s multiple

injuries, and testimony of Anna Wilson confirming the DNA test results showing the


                                            10
No. 35297-8-III
State v. Bennett


presence of DNA, consistent with Bennett’s, on the pillow found on Moore’s face, on her

blood-soaked shirt, on her kitchen cabinet, and on a cigarette butt found near Moore’s

body. The State also introduced several jail call recordings between Bennett and his wife

Trisha that the State argued contained inculpatory statements. The Bennetts later testified

that the purported inculpatory statements were misconstrued by the State and related to

marital issues rather than the murder. These statements are discussed more fully in the

analysis.

       Bennett’s theory of the case, as presented through his evidence and cross-

examination of State’s witnesses, was that he paid his rent to Moore on September 7, he

fully accounted for his whereabouts and activities that day, and he was not involved in her

murder. He also explained that the presence of his DNA on multiple items was due to

contamination at the murder scene or in the crime lab or was due to direct or secondary

transfer onto the tested items during his multiple interactions with Moore.

       As evidence that Bennett was about to be evicted, the State introduced testimony

from Moore’s neighbor, Joyce Andersen, that Moore declined a lunch invitation for

September 7 because “106 G” was supposed to come over at 12:30 p.m. to pay rent.

Report of Proceedings (RP) (Feb. 15, 2017) at 4313. Moore told Andersen, “[I]f he

doesn’t pay me what he’s supposed to pay me, I’m going to tell him if he can’t afford it,


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No. 35297-8-III
State v. Bennett


he can go find someplace he can afford.” RP (Feb. 15, 2017) at 4314. The State also

introduced testimony from Bennett’s coworker at C & C Farms, Nicholas Cobb, that in

early September 2014, Bennett asked for him for a $700 loan to pay his rent. Cobb did

not loan him the money.

       The State also presented evidence that officers and CSRT members took careful

measures at the murder scene to not touch, disturb, or contaminate evidence or leave any

DNA on items. This included wearing gloves and shoe covers and changing gloves when

handling each different item. On cross-examination, Trevor Allen discussed the protocol

used for taking, handling, and packing blood swabs so they do not become contaminated,

as well as DNA collection training to avoid cross-contamination from coughing and

sneezing. He explained that small aerosolized droplets can spread out a short distance.

Hypothetically, if a person was standing near the kitchen cabinet and coughed in that

direction, it could account for that person’s DNA being present in a later-deposited

bloodstain.

       Forensic scientist Anna Wilson described the crime lab’s procedures that control

against contamination and ensure accuracy and reliability of test results. Procedures

include wearing a lab coat, mask, and gloves. The lab bench area is cleaned and new

gloves are worn between each item of evidence. Without changing gloves, DNA could


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No. 35297-8-III
State v. Bennett


accidentally get transferred from one item to another. To preserve evidence, it is

repackaged in its original package and placed in the evidence vault. Wilson discussed the

concept of transfer DNA. For example, DNA could be transferred by shaking a person’s

hand and the second person touching a table untouched by the first person. Wilson said

the crime lab scientists wear gloves to prevent DNA transfer/cross-contamination. In this

case, Wilson said she saw no evidence of contamination either at the crime scene or in the

laboratory.

       Discussing hypotheticals posed by defense counsel on cross-examination, Wilson

said the transfer concept by shaking hands could possibly account for Bennett’s DNA

being on the pillow that he said he never touched. Addressing the bloodstain on the

kitchen cabinet, Wilson said it could not be determined when or how Bennett’s DNA was

deposited—just that it was there. She said it would be very easy for a person coughing or

sneezing in that area to deposit their DNA on the object’s surface. She said if Bennett’s

DNA was already present on the cabinet from a prior cough, but later someone else made

a swipe with their hand without leaving detectable DNA, it would explain why Bennett’s

DNA was in the bloodstain. Similarly, the scenario could be explained if Bennett’s DNA

was deposited on the cabinet from coughing at an earlier time, and that third person

swiped it with a gloved hand and, therefore, left no DNA on the blood pattern. In the


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No. 35297-8-III
State v. Bennett


case of someone like Bennett, a heavy shedder, if he were to shake hands with someone

like Moore, and then she casually brushed her hand against her shirt later, this could result

in transferring Bennett’s DNA onto her shirt. Wilson concluded with respect to Bennett’s

“what-if examples” that she cannot say how his DNA got on the items but could only say

“is this possible or not.” RP (Mar. 2, 2017) at 5833. Wilson also confirmed that DNA

can be detected on an item even many years after it was deposited, depending on storage

conditions.

       Bennett testified on his own behalf. He said in July 2014, when he signed the

lease at Moore’s house, he had a tickle in his throat and went into her kitchen for a glass

of water while coughing five or six times. He had mentioned this in an interview with

Detective Hufman. He also said he never touched the pillow.

       Bennett testified he was at Moore’s house three times on September 7. He first

arrived at around 12:30 p.m. and paid her $525 for rent. He petted her dog while he was

there. He went home and returned a short time later to pay $400 that he had forgotten to

bring for the remainder owed on his deposit. He paid everything in cash. He said Moore

wrote him receipts from her carbon copy receipt book and placed the money in her bank

bag. He returned to Moore’s house a third time, at around 1:00 p.m., to retrieve his

wallet, which he had inadvertently left behind. He said Moore met him at the front door


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No. 35297-8-III
State v. Bennett


and handed him his wallet. He thanked her, and they shook hands. He never returned to

her house or to her alleyway at any time that day. He denied any involvement in Moore’s

murder and insisted he would have no reason to kill her. He denied she told him he

would have to find a new place to live. Trisha Bennett likewise testified that neither she

nor her husband were ever in the alleyway near Moore’s house on September 7. She

denied involvement in cleaning up the murder scene.

       Bennett also denied asking Nicholas Cobb for a $700 loan in September to pay his

rent. He did concede he had not repaid $750 that he had borrowed from Mike Cobb for

August move-in costs. Detective Hufman asked Bennett for the rent receipts, but he was

never able to find them.

       Moore’s personal representative, Terry Kinzel, had earlier testified she inventoried

Moore’s belongings after her death, including her business records. She knew Moore as a

meticulous record keeper. Ms. Kinzel said there was only $418.59 in the bank bag Moore

used for rent payments. She also said she could not find Moore’s rent receipt book for

2014, which was the only missing receipt book, and she did not find a September 2014

receipt for Bennett.

       The jury acquitted Bennett of first degree murder, but found him guilty of second

degree murder. The jury also found that the State had proved two aggravating


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No. 35297-8-III
State v. Bennett


circumstances—deliberate cruelty and particularly vulnerable victim. The court denied

motions by Bennett to vacate the aggravators for insufficient evidence and vagueness and

to be sentenced within the standard range of 134 to 234 months. The court imposed a

660-month exceptional sentence.

       Bennett timely appealed.

                                        ANALYSIS

       Bennett argues the trial court erred by denying his CrR 8.3(b) motion to dismiss

for governmental mismanagement, by excluding “other suspect” evidence, and by

imposing an exceptional sentence. He also argues prosecutorial misconduct during

closing argument deprived him of a fair trial.

       A.     GOVERNMENTAL MISCONDUCT

       Bennett argues the trial court abused its discretion in denying his motion to dismiss

the case for governmental mismanagement, or, in the alternative, to suppress evidence,

due to the State’s withholding of the jail call recordings and belated DNA testing of

Moore’s blood-soaked shirt. He contends this mismanagement prejudiced his right to a

fair trial by forcing him to choose between his rights to a speedy trial and effective

counsel.




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No. 35297-8-III
State v. Bennett


              1.     The governing court rule

       CrR 8.3(b) provides:

       The court, in the furtherance of justice, after notice and hearing, may
       dismiss any criminal prosecution due to arbitrary action or governmental
       misconduct when there has been prejudice to the rights of the accused
       which materially affect the accused’s right to a fair trial. The court shall set
       forth its reasons in a written order.

              2.     Standard of review

       We review a court’s ruling under CrR 8.3(b) for abuse of discretion. State v.

Michielli, 132 Wn.2d 229, 239-40, 937 P.2d 587 (1997). “A court abuses its discretion

when an ‘order is manifestly unreasonable or based on untenable grounds.’” State v.

Salgado-Mendoza, 189 Wn.2d 420, 427, 403 P.3d 45 (2017) (internal quotation marks

omitted) (quoting In re Pers. Restraint of Rhome, 172 Wn.2d 654, 668, 260 P.3d 874

(2011)).

              3.     Legal standards

       To obtain dismissal under CrR 8.3(b), the defendant must show by a

preponderance of the evidence (1) arbitrary action or governmental misconduct and

(2) actual prejudice affecting the defendant’s right to a fair trial. State v. Rohrich, 149

Wn.2d 647, 654, 71 P.3d 638 (2003) (quoting Michielli, 132 Wn.2d at 239-40).

Dismissal of charges under CrR 8.3(b) is an extraordinary remedy saved for egregious


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No. 35297-8-III
State v. Bennett


cases and is improper absent material prejudice to the rights of the accused. State v.

Moen, 150 Wn.2d 221, 226, 76 P.3d 721 (2003); Rohrich, 149 Wn.2d at 653.

Governmental misconduct can be something as basic as simple mismanagement. State v.

Barry, 184 Wn. App. 790, 797, 339 P.3d 200 (2014) (citing Michielli, 132 Wn.2d at 239).

Violations of the State’s discovery obligations can support a finding of governmental

misconduct. Id. at 796-97; Salgado-Mendoza, 189 Wn.2d at 429.

       Meeting the prejudice prong of CrR 8.3(b) “requires a showing of not merely

speculative prejudice but actual prejudice to the defendant’s right to a fair trial.” Rohrich,

149 Wn.2d at 649. Late disclosure of material facts can support a finding of actual

prejudice. Salgado-Mendoza, 189 Wn.2d at 432. “In the dismissal context, a defendant

is prejudiced when delayed disclosure interjects ‘new facts’ shortly before litigation,

forcing him to choose between his right to a speedy trial and to be represented by an

adequately prepared attorney.” Id.; Michielli, 132 Wn.2d at 240; Barry, 184 Wn. App. at

796-97.

              4.     Application of legal standards to facts

       Jail call recordings

       As stated above, Detective Hufman accumulated some 250 hours of recordings of

Bennett’s jail calls, but due to resource limitations, he was nine months behind in


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No. 35297-8-III
State v. Bennett


listening to them. It was not until sometime after June 6, 2016, when he first heard a late

2014 conversation in which Bennett cautioned his wife they needed to keep their stories

straight. Hufman immediately notified the prosecutor’s office. On June 15, he delivered

a report and a copy of all of the recordings he had reviewed to date. Hufman admitted he

had, until then, unilaterally decided to withhold the recordings because he did not want

Bennett to know law enforcement was reviewing his calls. Defense counsel Bustamante

was, thus, not apprised of the recordings until June 17, 2016, when the prosecutor turned

over a CD containing a recording of all the jail calls.

       In responding to Bennett’s CrR 8.3(b) dismissal motion, the prosecutor stated that

Bennett’s late 2014 call with his wife about keeping their stories straight was the sole

recording the State might use at trial and only in the event Bennett’s wife testified.

Bustamante maintained that the defense team would be unable to finish listening to 250+

hours of recordings by the trial date. He told the court it was necessary to listen to all of

the calls for potential exculpatory evidence that could impact his trial strategy.

       The prosecution has a continuing duty to disclose to the defense any written or

recorded statements made by the defendant. CrR 4.7(a)(1)(ii), (h)(2). Contrary to what

the State suggests, CrR 4.7(a)(1)(ii) does not condition the prosecutor’s obligation on

intent to use the statements at trial.


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No. 35297-8-III
State v. Bennett


       Here, as the trial court recognized, there was no governmental misconduct.

Detective Hufman learned of the “stories straight” recording on June 6 and immediately

notified the prosecutor’s office. CP at 286. On June 15, he delivered a report and a copy

of all of the recordings to the prosecutor’s office. The prosecutor promptly disclosed the

recordings to Bennett two days later and identified to the defense the “stories straight”

recording that he intended to use for impeachment purposes. The government, thus,

promptly disclosed the recording once it learned of it.

       To the extent the delay attributable to Detective Hufman’s time constraints can be

considered mismanagement, it is not of a magnitude to warrant dismissal or suppression.

Moreover, the fact the recordings and the contents of those conversations were within

Bennett’s own knowledge cannot be a surprise to him. If Bennett had exculpatory

information, he knew the information and could have informed defense counsel without

counsel reviewing all of the recordings. To the extent defense counsel actually believed

all of the recordings needed to be reviewed, a two-month trial continuance was an

appropriate remedy.

       Testing of the blood-soaked shirt

       As stated above, Moore’s blood-soaked shirt was collected by investigators in

September 2014, but forensic expert Wilson believed it was too saturated to likely yield


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No. 35297-8-III
State v. Bennett


any DNA other than Moore’s. And due to resource limitations, the crime lab limited

initial testing to items most likely to identify the murderer. A deputy prosecutor later

asked Wilson to test the shirt when she disclosed to him in late May 2016 that Bennett

was an unusually heavy shedder of his DNA. Wilson agreed to test the shirt because

Bennett had left what she considered to be a surprisingly high amount of DNA on the

pillow, and she concluded there was a greater chance the shirt would yield useful

evidence. Given the unanticipated accelerated proceedings, the State had not intended

to test the shirt if trial had remained set for June 8, but instructed Wilson to do so on

May 31, when, on that date, trial was continued to July 7.

       When Wilson told Bustamante during the June 1 interview that the shirt would be

tested, he approved. The State offered to allow a defense expert to observe the testing,

provided it was not Bennett’s disclosed DNA expert, Dr. Libby, who was barred from the

testing areas in all WSP crime labs. The State gave Bustamante a list of private DNA

experts, but he declined to use someone other than Dr. Libby.

       At the June 6 pretrial hearing, Bustamante voiced concern to the court about his

June 1 interview with Wilson. He criticized the State for not having tested the shirt

sooner and said he would oppose any further requests for continuances while awaiting the

results. He said the results should be excluded if they are not produced one week before


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No. 35297-8-III
State v. Bennett


trial. The prosecutor explained he had wanted the shirt tested earlier but the crime lab

declined because their policy is to test only so many pieces in a case.

       Bustamante responded:

       [A]gain, in principle, I am totally in favor of testing these items. I believe
       they may exonerate my client. However, the timeliness is the only thing I
       question. And if the state crime lab says, no, we’re not going to test it a
       year and a half ago and then they suddenly decide to do it a . . . month
       before the trial, then that’s government mismanagement, even though it may
       not be the prosecuting attorney’s fault.

RP (June 6, 2016) at 25.

       When the June 29 test results showed that Bennett’s DNA was on the blood-

soaked shirt, Bennett moved for dismissal on grounds the belated testing was inexcusable

governmental mismanagement. During the July 5 hearing, Bustamante argued that

Wilson knew since late 2014 that Bennett was a “heavy shedder” of DNA, yet the shirt

was not tested until June 2016. He argued the crime lab’s resource limitations are not a

valid excuse for delay. For the first time, he contended the testing delay forced him to ask

for a continuance to analyze the DNA results and placed him in a Hobson’s choice

between his rights to a speedy trial and effective assistance of counsel. During the

hearing, Bustamante confirmed he had favored the testing just one month earlier at the

previous hearing. Given the results, which Bustamante characterized as a “mixed bag”

and “potentially exculpatory” because only miniscule partial profiles of Bennett’s DNA

                                             22
No. 35297-8-III
State v. Bennett


were present, he said it would take Dr. Libby four to five weeks to conduct his testing.

RP (July 5, 2016) at 69. Thus, if not granted the remedy of dismissal or suppression,

Bustamante requested a two-month trial continuance. The court summarily declined to

dismiss the case or suppress evidence.

       The court commented to the prosecutor:

       But it sounds to me like you’re agreeing with Mr. Bustamante, when he
       says that Mr. Bennett has been placed in a position where he has to choose
       between the effective assistance of counsel and a speedy trial. And that that
       delay is due to the state’s failure to test this shirt a year and a half ago.

RP (July 5, 2016) at 81. The prosecutor partially agreed and explained he had fast-

tracked the testing in June, and defense counsel invited the test because he thought the

results would be exculpatory. The court ultimately granted a two-month trial

continuance.

       Given Bennett’s unanticipated refusal to continue the trial date past July 2016,

and given Bennett’s tactical decisions surrounding the testing of the shirt, we agree with

the State that Bennett has no grounds to claim mismanagement. Even though the State

had the blood-soaked shirt since September 2014, Bustamante had favored testing in

June 2016 because he believed the results would be exculpatory. It is apparent that

Bennett rolled the dice, gambling that the test results would be exculpatory. Bennett’s

failure to object to the late testing—indeed his agreement to it—renders the trial court’s

                                             23
No. 35297-8-III
State v. Bennett


decision to grant a two-month continuance very reasonable. We conclude the trial court

did not abuse its discretion.

       B.     OTHER SUSPECT EVIDENCE

       Bennett argues the trial court violated his constitutional right to present a defense

when it excluded his “other suspect” evidence. He argues he should have been allowed to

present evidence and argue that (Moore’s daughter) Wendy Swain, and (her boyfriend)

John Rehfield committed the murder, or Moore’s tenants Charles and Brandi Larr

committed the murder, or any other tenant who had not paid Moore rent may have

committed the murder. Bennett contends the trial court misapplied the law by requiring

him to establish that these other suspects had taken a step indicating an intention to act on

their various motives for committing the crime.

              1.      Standard of review

       We review claims of evidentiary error implicating constitutional rights for an

abuse of discretion. State v. Arndt, 194 Wn.2d 784, 797, 453 P.3d 696 (2019); State v.

Blair, 3 Wn. App. 2d 343, 351, 415 P.3d 1232 (2018). We then review claims the

evidentiary ruling violated the defendant’s constitutional right to present a defense de

novo. Arndt, 194 Wn.2d at 797.




                                             24
No. 35297-8-III
State v. Bennett


              2.     Legal principles for evidentiary ruling

       A trial court’s exclusion of “other suspect” evidence is an application of the

general evidentiary rule that excludes evidence if its probative value is outweighed by

unfair prejudice, confusion of the issues, or potential to mislead the jury. State v.

Franklin, 180 Wn.2d 371, 378, 325 P.3d 159 (2014) (quoting Holmes v. South Carolina,

547 U.S. 319, 326-27, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006)). Before the trial court

will admit “other suspect” evidence, the defendant must present a combination of facts or

circumstances that points to a nonspeculative link between the other suspect and the

crime. Franklin, 180 Wn.2d at 381. The standard for the relevance of such evidence is

whether it tends to connect someone other than the defendant with the charged crime. Id.

       The inquiry “‘focuse[s] upon whether the evidence offered tends to create a

reasonable doubt as to the defendant’s guilt, not whether it establishes the guilt of the

third party beyond a reasonable doubt.’” Id. (alteration in original) (quoting Smithart v.

State, 988 P.2d 583, 588 & n.21 (Alaska 1999)). Additionally, the probative value of

“other suspect” evidence must be based on whether it has a logical connection to the

crime, not based on the strength of the State’s case. Id. at 381-82.




                                             25
No. 35297-8-III
State v. Bennett


       The Franklin court discussed the rule in Downs2—that other suspect evidence is

admissible only if the defendant can show “‘a train of facts or circumstances as tend

clearly to point out some one besides the [accused] as the guilty party.’” Franklin, 180

Wn.2d at 379 (quoting State v. Downs, 168 Wash. 664, 667, 13 P.2d 1 (1932)). The

Franklin court affirmed the rule, but explained “ʻ[m]ere evidence of motive in another

party, or motive coupled with threats of such other person, is inadmissible, unless coupled

with other evidence tending to connect such other person with the actual commission of

the crime charged.’” Id. (alteration in original) (quoting State v. Kwan, 174 Wash. 528,

533, 25 P.2d 104 (1933)). The Franklin court also noted, “‘[r]emote acts, disconnected

and outside of the crime itself, cannot be separately proved for such a purpose.’” Id. at

380 (alteration in original) (quoting Kwan, 174 Wash. at 533).

       Franklin, quoting People v. Mendez, 193 Cal. 39, 52, 223 P. 65 (1924), overruled

in part on other grounds by People v. McCaughan, 49 Cal. 2d 409, 317 P.2d 974 (1957),

explained that these rules rested on the necessity that trial of cases be both orderly and

expeditious. Id. Without requiring a sufficient nexus between the other suspect and the

crime, a defendant “‘might easily . . . produce evidence tending to show hundreds of




       2
           State v. Downs, 168 Wash. 664, 13 P.2d 1 (1932).

                                             26
No. 35297-8-III
State v. Bennett


other persons had some motive or animus against the deceased . . . .’” Id. (quoting

Mendez, 193 Cal. at 52).

       “When the State’s case is entirely circumstantial, the Downs rule is relaxed to an

extent to allow a reply in kind: the ‘defendant may neutralize or overcome such evidence

by presenting sufficient evidence of the same character tending to identify some other

person as the perpetrator of the crime.’” State v. Hilton, 164 Wn. App. 81, 99, 261 P.3d

683 (2011) (quoting State v. Clark, 78 Wn. App. 471, 479, 898 P.2d 854 (1995)).

              3.     Legal principles for the constitutional right to present a defense

       Both the Sixth Amendment to the United States Constitution and article I, section

22 of the Washington Constitution guarantee a criminal defendant the right to present a

defense. State v. Strizheus, 163 Wn. App. 820, 829-30, 262 P.3d 100 (2011). This right

includes the right to examine witnesses and to offer testimony. State v. Jones, 168 Wn.2d

713, 720, 230 P.3d 576 (2010) (citing Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.

Ct. 1038, 35 L. Ed. 2d 297 (1973)). These rights are not absolute. “Evidence that a

defendant seeks to introduce must be of at least minimal relevance.” Id. (internal

quotation marks omitted). A criminal defendant does not have a constitutional right to

present irrelevant or inadmissible evidence. Id.; State v. Hudlow, 99 Wn.2d 1, 15, 659

P.2d 514 (1983).


                                            27
No. 35297-8-III
State v. Bennett


       “ʻ[I]f relevant, the burden is on the State to show the evidence is so prejudicial as

to disrupt the fairness of the fact-finding process at trial.’” Jones, 168 Wn.2d at 720

(quoting State v. Darden, 145 Wn.2d 612, 622, 41 P.3d 1189 (2002)). The integrity of the

truth-finding process and a defendant’s right to a fair trial are important considerations.

Hudlow, 99 Wn.2d at 14.

              4.     Bennett’s “other suspect” evidence

       Bennett points to Detective Hufman’s speculation at the outset of the investigation

that a close family member committed the crime because there were no signs of forced

entry. Hufman thought it appeared to be a “rage” killing and staged burglary because

valuables such as cash, credit cards, and a coin collection worth several thousand dollars

were clearly accessible but not stolen. According to Bennett, Wendy Swain and John

Rehfield had opportunity and ability to commit the crime because Swain lived within one

mile of Moore, was welcome in her home, and could not verify her claim she was out

“rock picking” on the day of the murder. RP (Feb. 6, 2017) at 3163. Bennett contended

Swain had motive because she stood to receive a significant inheritance from her mother

and also had had an argumentative relationship with her. According to Moore’s sister-in-

law, Camilla Hatch, Moore’s children “were just waiting for her to die.” CP at 64.




                                             28
No. 35297-8-III
State v. Bennett


       In addition, two days after the murder, Swain and Rehfield went to Moore’s bank

and asked how someone could gain access to a safe deposit box belonging to a person

who had become deceased. Bennett theorized this was circumstantial evidence that

Swain and Rehfield may not have found a particular item when they ransacked the house,

so they went to the safe deposit box to look for it. The bank manager, Jeff Mackey, said

Rehfield did most of the talking for the two of them. He described the interaction as

“very ‘[c]old.’” CP at 64. Detective Hufman reported a similar experience when he gave

Swain the keys to Moore’s house after the crime scene was processed. He recommended

they hire a cleaning service but Rehfield said they would do cleanup themselves. Hufman

testified at his first trial that his contact with Swain and Rehfield was “very cold and

unsettling.” CP at 8. Rehfield was given a polygraph examination, and the examiner

determined he “‘was not being truthful during the testing.’” CP at 68. Bennett also

proffered that some of Moore’s other tenants, in particular Charles and Brandi Larr, may

have committed the crime.

       The State’s theory was that Bennett killed Moore because he could not afford to

pay rent and was about to be evicted, but Bennett pointed out that other tenants had been

further in arrears. The Larrs had problems with timely rent payments. Wendy Swain told

Detective Hufman early in the investigation that the Larrs could have had something to do


                                             29
No. 35297-8-III
State v. Bennett


with the killing because they were about to be given an eviction notice. Their next door

neighbor, Daniel Keyser, testified at the first trial that a few days prior to the murder, he

heard Moore arguing with Brandi Larr in the Larrs’ front yard. Keyser heard Moore

loudly say, “‘Do I have to show you the lease?’” CP at 871. Brandi Larr testified at the

first trial and denied the argument ever took place. In his “other suspect” proffer, Bennett

contended the denial of the argument was suspicious and showed consciousness of guilt.

Another neighbor, Anastasia Bunakova, saw a man cross the street from the general

direction of the Larrs’ residence and enter the back of Moore’s house on the afternoon of

September 7. Bennett contended this supported the theory that Charles Larr was the

killer.

                 5.     Hearing on State’s motion to exclude

          At the hearing on the State’s motion to exclude “other suspect” evidence, the court

first commented that Bennett’s offer of proof showed “a strong argument here about

motive and opportunity.” RP (Feb. 16, 2017) at 3154. The court then stated:

          The question is what evidence is it that links that motive and opportunity to
          potentially this crime?” And I think the case that I looked at, State vs.
          Starbuck, [189 Wn. App. 740, 752, 355 P.3d 1167 (2015)] says, “The
          proposed evidence must also show that the third party took a step indicating
          an intention to act on the motive or opportunity.” And so that’s what I’m
          searching for. What is the evidence that shows a step indicating an
          intention to act on the motive or opportunity? I think you’ve laid out


                                               30
No. 35297-8-III
State v. Bennett


       motive and opportunity, potentially, but what is it there that’s going to show
       me an intention to act on either the motive or opportunity?

RP (Feb. 6, 2017) at 3154-55.

       Defense counsel Bustamante emphasized the principle recited in Starbuck that

when, as here, the State’s case is entirely circumstantial, the train of facts or

circumstances rule in Downs is relaxed to allow the defendant to present evidence of the

same character tending to identify some other person as the perpetrator of the crime.

Bustamante argued other circumstantial evidence included the fact Moore’s rental receipt

book was missing, thus inferring she could have been killed by any one of her tenants or

that Swain had taken it upon gaining access to Moore’s house after her death and was

attempting to cast blame on a tenant. He argued other suspects could also be inferred

because there were unidentified footprints at the scene and the DNA of two other

unknown males besides Bennett’s was also present on the pillow and on Moore’s shirt.

Bustamante conceded the evidence is circumstantial that someone besides Bennett was

there at the time of the killing, but argued the evidence should be considered and weighed

by a jury because the State’s case also is circumstantial.

       The State responded that there was no evidence beyond speculation that Swain,

Rehfield, or either of the Larrs were at Moore’s house on the day of the murder or that

they had anything to do with the crime. Anastasia Bunakova did not pick Rehfield or

                                              31
No. 35297-8-III
State v. Bennett


Larr in a photomontage, but her daughter Vera Bunakova had picked Bennett as the

person she saw in the alley behind Moore’s house. Bennett was the only one known to be

present in Moore’s house on the day of the murder.

      In granting the State’s motion, the court reasoned:

      [B]asically I’m just relying on the Starbuck case and the ones that it cites to,
      and in particular the line that I quoted, which was, “The proposed evidence
      must also show that the third party took a step indicating an intention to act
      on the motive or opportunity.”
              As far as I can tell, I’ve not heard anything that identifies evidence
      that would show some type of step taken by any of these other individuals
      that the defendant has identified as potentially having committed the crime.
              I’ll also note that there’s a case called State v. Franklin, this is 180
      Wn.2d 371, they cite to a California case, for an interesting quote, this is
      from [People v. Mendez, 193 Cal. at 52], and it says, “It is quite apparent
      that if evidence of motive alone upon the part of other persons were
      admissible, that in a case involving the killing of a man who had led an
      active and aggressive life, it might easily be possible for the defendants to
      produce evidence tending to show that hundreds of other persons had some
      motive or animus against the deceased.”
              And I think that’s kind of instructive as to what we have here, which
      is we have somebody obviously who is deceased, and there might be other
      people who might have had a motive. And certainly, you know, the motive
      can be identified. But without something that shows some affirmative step
      towards actually doing the crime, it comes down to basically it not being
      relevant enough to outweigh the burden or outweigh the—what’s the rule
      say, [ER] 403?—outweigh the danger of potential confusion of the issues or
      misleading the jury or potentially unfair prejudice.

RP (Feb. 6, 2017) at 3170-71 (emphasis added).




                                            32
No. 35297-8-III
State v. Bennett


              6.     Application of facts to legal principles

       The trial court relied on language in Starbuck that requires Bennett to show that

the other suspect “took a step indicating an intention to act on the motive” to commit the

crime. 189 Wn. App. at 752. Support for this requirement can be traced back to language

in Downs that “a train of facts or circumstances as tend clearly to point out someone

besides the accused as the guilty party.”3 Downs, 168 Wash. at 667. We need not

determine whether the “took a step indicating an intention to act” requirement in

Starbuck, Rafay, and Rehak is consistent with Downs. Rather, we can affirm the trial

court simply by applying the legal principles outlined above in part B2, principles that

Bennett does not contest.

       The State’s evidence against Bennett was both circumstantial and direct. The

State’s circumstantial evidence included DNA consistent with Bennett’s on Moore’s

blood-soaked shirt, the pillow on her head, a cigarette butt near Moore’s body, and a

blood smear on a kitchen cabinet. In addition, Bennett was the last person known to have

seen Moore alive.




       3
         Starbuck cites State v. Rafay, 168 Wn. App. 734, 800, 285 P.3d 83 (2012), which
cites State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992), which cites and quotes
this language in Downs.

                                             33
No. 35297-8-III
State v. Bennett


       The State’s direct evidence consisted of a recorded jail call between Bennett and

his wife, in which Bennett used his cellmate’s callout identification code. The most

inculpatory statement Bennett made was:

       Trisha, I’m not going to drag you down in this. I’m going to say this on the
       phone so it’s set in stone. Okay? You know that I did it, and you were
       there with me.

CP at 1307. Although Bennett and his wife testified they were not talking about the

murder, they were talking about the criminal case both before and after the quoted

statement. Shortly after the statement, Bennett told his wife:

       We hold each other hostage . . . . Because right now, you can hang me by
       my neck. And I’m being serious. Because this account is going to be
       canceled tomorrow because my celly gets out tomorrow. . . . So all this shit
       will be gone by tomorrow. You can hang me out to dry in a matter of
       seconds. . . . But I can hang you out to dry in a matter of seconds. We hold
       each other hostage. We’re at a Mexican standoff. . . .

CP at 1308. If the jury believed that Bennett’s statements were a confession, a belief

consistent with the context of the statements, the confession was direct evidence that

Bennett was guilty of murder.

       At the hearing to strike “other suspect” evidence, Bennett failed to present a

combination of facts or circumstances that points to a nonspeculative link between his

proffered other suspects and the crime. Although Bennett established his other suspects

had motive and opportunity—that is all he established.

                                            34
No. 35297-8-III
State v. Bennett


       First, Bennett failed to link Swain and Rehfield to the crime with a train of facts or

circumstances. For instance, there was no evidence that either Swain or Rehfield was

seen near Moore’s house after Moore attended Sunday church, or that either had ever

threatened to kill Moore, or either person’s DNA was found at the murder scene. In fact,

Rehfield’s DNA was excluded as being present on Moore’s shirt. The only nonmotive

evidence Bennett points to is Rehfield’s question to a bank officer after the murder, about

how Swain might access her mother’s safe deposit box if she did not have the key. Such

a question is not uncommon or suspicious.

       Bennett also failed to link Mr. Larr or other tenants to the crime with a train of

facts or circumstances. It is true that a man was seen walking into Moore’s house the

afternoon of her murder, but the only man identified as being near Moore’s house the

afternoon of her murder was Bennett. It also is true that DNA of three men was found on

the pillow and Moore’s bloody shirt, but the only DNA identified was DNA consistent

with Bennett’s. It also is true that other tenants were behind in rent, but the only tenant

known to have seen Moore the day she was murdered was Bennett. He was the last

known person to have seen her alive, and DNA consistent with his was found on multiple

crime scene items. In sum, any tenant could have killed Moore, but only Bennett was

linked to the murder with a train of facts or circumstances.


                                             35
No. 35297-8-III
State v. Bennett


       Mere evidence of motive in another party, or motive coupled with threats of
       such other person, is inadmissible, unless coupled with other evidence
       tending to connect such other person with the actual commission of the
       crime charged.

Kwan, 174 Wash. at 533.

       We conclude the trial court did not abuse its discretion by excluding Bennett’s

proffered “other suspect” evidence. The evidence was so speculative and clearly

inadmissible under applicable evidentiary standards that its admission would have

disrupted the fairness of the fact-finding process. For this reason, Bennett had no

constitutional right to present it. Jones, 168 Wn.2d at 720.

       C.     PROSECUTORIAL MISCONDUCT

       Bennett contends the prosecutor committed prejudicial misconduct on six separate

occasions during closing argument and rebuttal. The alleged instances of misconduct are

discussed individually below.

       Legal principles

       To prevail on a claim of prosecutorial misconduct, the defendant must establish

“‘that the prosecutor’s conduct was both improper and prejudicial in the context of the

entire record and the circumstances at trial.’” State v. Thorgerson, 172 Wn.2d 438, 442,

258 P.3d 43 (2011) (internal quotation marks omitted) (quoting State v. Magers, 164

Wn.2d 174, 191, 189 P.3d 126 (2008)). Only when the conduct is improper does the

                                            36
No. 35297-8-III
State v. Bennett


reviewing court determine whether the conduct resulted in prejudice. State v. Emery, 174

Wn.2d 741, 760, 278 P.3d 653 (2012). The State has wide latitude in drawing and

expressing reasonable inferences from the evidence, including inferences about

credibility. State v. Thompson, 169 Wn. App. 436, 496, 290 P.3d 996 (2012).

Misconduct is prejudicial if there is a substantial likelihood it affected the verdict.

Emery, 174 Wn.2d at 760-61.

       However, a defendant who fails to object to the State’s improper act at trial waives

any error unless the act was so flagrant and ill intentioned that an instruction could not

have cured the resulting prejudice. Id.; Thorgerson, 172 Wn.2d at 443. In making that

determination, the courts “focus less on whether the prosecutor’s misconduct was flagrant

or ill intentioned and more on whether the resulting prejudice could have been cured.”

Emery, 174 Wn.2d at 762.

                        Arguing facts not in evidence re: Bodziak testimony

       This issue arises from Bennett’s request for an order in limine to preclude the

State’s shoeprint expert, William Bodziak, from testifying to any facts or conclusions not

specifically stated in his report. Bennett focuses on the following portion of Bodziak’s

report in reference to a single bloody shoeprint at the crime scene:




                                              37
No. 35297-8-III
State v. Bennett


       In addition, present throughout this entire area are wipe marks in multiple
       directions. The wiping action has physically smeared the blood in some of
       those areas, including portions of the herringbone pattern. The
       characteristics evident [in] these images as well as images taken before
       enhancement are typical of attempts to clean-up bloody footwear evidence.

CP at 1373 (emphasis added).

       Bennett argued that saying evidence is “typical of attempts to clean-up footwear

evidence” is quite different from rendering an opinion that someone actually tried to clean

up the scene. He argued Bodziak did not opine that the wipe marks were evidence that

someone cleaned up bloody footwear prints in this case and it would be unfair to require

the defense to respond to such an opinion without advance notice. The court commented

that it expected Bodziak will say exactly what he wrote because that is all he opined. The

parties agreed. The court later reiterated its ruling:

       So with regard to Bodziak, when he’s asked the question to the effect, did
       you see any evidence of attempts to clean, his answer needs to be in line
       with what he states, which is what I saw in the images taken before
       enhancement are typical of attempts to clean up bloody footwear evidence.

RP (Mar. 3, 2017) at 6037. The prosecutor concurred. The court confirmed these

limitations with Mr. Bodziak and asked whether he would be able to stick with his

opinion as stated in the report. Bodziak clarified that it was his opinion that the footprint

was cleaned up. Bennett argued it would be unfair to allow him to deviate from his report




                                              38
No. 35297-8-III
State v. Bennett


and, if allowed, the defense would need a recess to hire an expert and move for a Frye4

hearing.

      The court again reiterated its ruling:

      And so there is a slight distinction there. Certainly, [the prosecutor] can
      argue this in closing and say, based on that it appears to have evidence of a
      typical attempt to clean up bloody footwear, that’s certainly an argument
      you can make before the jury. But to have the expert come up and actually
      express that opinion that in this case there was, in fact, in his opinion, an
      attempt to clean up this particular scene, there is a slight difference there.

RP (Mar. 6, 2017) at 6069. The prosecutor responded:

      Judge, I know we’ve got—but can I ask the court, what do you make of the
      sentence before that where he says, “In addition, present throughout this
      entire area”—and he’s referring to this shoe print—“are wipe marks in
      multiple directions. The wiping action has physically smeared the blood in
      some of those areas, including portions of the herringbone pattern.”
              That clearly says that he sees some wiping action through that
      herringbone. I mean I don’t know how else you could draw the conclusion
      that—

RP (Mar. 6, 2017) at 6069-70. The court clarified:

      [H]e can state that entire paragraph. That is his opinion that he put in this.
      It’s the step further that I ruled on Friday that he’s prohibited from stating,
      which is that officially in this scene, there was an attempt to clean up. But
      he can certainly state that whole paragraph, if that’s what he wants to state.
      And then you can argue in closing that his opinion, based on what he says,
      is, in fact, what you just argued.

RP (Mar. 6, 2017) at 6070.


      4
           Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
                                               39
No. 35297-8-III
State v. Bennett


       Bodziak testified about the wipe marks visible in photographs of the shoeprint.

In reference to slide number 8, he said:

       You see on the left from maybe running at 10:00 to 4:00 direction, from left
       to right, are a series of streaks. . . . And on the right, right underneath the
       orange—the B on the orange paper are again some other streaks. And at the
       bottom part of those there are actually streaks running down in a different
       direction. . . . So at least three different angles of wiping or wipe marks or
       streaks in these areas. And in the center are some remnants of a
       herringbone design impression.

RP (Mar. 6, 2017) at 6104. Addressing slide number 9, Bodziak said:

       In addition, present throughout this entire area are wipe marks in multiple
       directions. So these were the streaks, this direction, this direction. And
       then over here outside of this close-up over in this direction. So at least
       three very obvious areas where there’s some wipe marks. . . . The wiping
       action has physically smeared the blood in some of those areas, including
       portions of the herringbone pattern.

RP (Mar. 6, 2017) at 6108. Bodziak continued:

       So this is just showing that the wipe marks are not just in different
       directions, but there’s actually some additional ones in there that are curved.
       Then the end of the paragraph of my report says, “The characteristics
       evident in these images, as well as images taken before enhancement, are
       typical of attempts to clean-up bloody footwear evidence.”

RP (Mar. 6, 2017) at 6110.

       The prosecutor then asked Bodziak to confirm whether he found evidence of what

he thought was characteristics of a wipe mark in a curved nature. Bodziak responded,

“Yes. If someone’s wiping, it’s not always straight. . . . There’s both evidence of

                                             40
No. 35297-8-III
State v. Bennett


curvature, curving streaks and straight streaks in multiple areas.” RP (Mar. 6, 2017) at

6111.

        In closing argument, the prosecutor referred to Bodziak’s testimony regarding the

shoeprint. He stated Bodziak’s “observation was that there was clear evidence of clean-

up to the impression B, the blood.” RP (Mar. 21, 2017) at 8202. The prosecutor

contemporaneously showed a PowerPoint purporting to summarize Bodziak’s testimony,

including one slide stating in bold: “Clear evidence of clean up to Impression B

(Blood).” Ex. 528, slide 32.

        Bennett objected and moved for a mistrial on grounds the argument stated facts not

in evidence. The court overruled the objection and directed the jury to consider only the

evidence it believes was presented. The prosecutor continued:

                And in those photographs, you heard him testify about the clear
        swipe marks around and through the impressions. The swipe marks are
        multi-directional, as well. His testimony is this is a typical characteristic of
        clean-up. . . . And the testimony he’s talking about looking at the purple
        there, you can see the swipe marks through here and the swipe marks
        coming along there that he was talking about, and the swipe marks up there.

RP (Mar. 21, 2017) at 8203 (emphasis added).

        During a recess, Bennett renewed his objection and motion for mistrial. The

prosecutor responded that following the court’s admonition to the jury regarding the

“clear evidence of clean-up” statement, he “left it be. And . . . didn’t go back to there.”

                                              41
No. 35297-8-III
State v. Bennett


RP (Mar. 21, 2017) at 8224. After commenting that Bodziak’s testimony had included

the phrase “[a]ttempt to clean-up,” the court said it considered the prosecutor’s use of the

phrase “clear evidence of clean-up” to be argument. The court concluded: “I don’t see

that as an issue.” RP (Mar. 21, 2017) at 8225.

       In rebuttal closing, the prosecutor again referred to the shoeprint, without objection

from Bennett:

       Bill Bodziak talked about . . . a conscious attempt to clean that area up. Do
       you remember the illustration he showed you, showing the wipes through
       the foot impression?

RP (Mar. 23, 2017) at 8588-89. The prosecutor showed another PowerPoint slide stating

there was “Evidence of Clean up per Bodziak.” Ex. 528, slide 81. Again, there was no

objection.

       The court instructed the jury, both orally at the end of closing and in its written

instructions, that the lawyers’ statements are not evidence. The evidence is the testimony

and exhibits and that the jury must disregard any remark, statement, or argument that was

not supported by the evidence or the law in the instructions provided.

       A prosecutor commits reversible misconduct by urging the jury to consider

evidence outside the record. State v. Pierce, 169 Wn. App. 533, 553, 280 P.3d 1158

(2012); State v. Jones, 144 Wn. App. 284, 293, 183 P.3d 307 (2008) (prosecutors are not


                                             42
No. 35297-8-III
State v. Bennett


permitted to make prejudicial statements unsupported by the record). It is the court’s role

to sustain proper objections to prosecutorial misconduct, and the court’s failure to do so

sends a message to the jury that the State’s argument is legitimate. State v. Allen, 182

Wn.2d 364, 378, 341 P.3d 268 (2015).

       The State’s initial “clear evidence of clean-up” argument, without clarification, did

not reflect Bodziak’s testimony or comport with the trial court’s ruling in limine. But in

continuing his argument immediately after Bennett’s objection and the court’s admonition

to the jury, the prosecutor walked back any error by clarifying that Bodziak had testified

that the clear evidence of swipe marks was a typical characteristic of cleanup.

Unfortunately, the prosecutor’s later argument—that Mr. Bodziak testified about a

conscious attempt to cleanup—again misstated the evidence.

       But these misstatements were not prejudicial because they did not have a

substantial likelihood of affecting the jury’s verdict. Whether someone tried to clean up a

bloody shoeprint was not critical to Bennett’s conviction. His conviction was based on

circumstantial evidence that he could not pay rent, his DNA being found on Moore’s

blood-soaked shirt, the pillow on her head, a cigarette butt next to her body, and on a

blood smear on the cabinet. His conviction was also based on direct evidence of his

confession—the jail call where Bennett used his cellmate’s callout code.


                                             43
No. 35297-8-III
State v. Bennett


      To the extent the prosecutor’s comments about Bodziak’s testimony were

improper, we conclude they were not prejudicial.

         Arguing facts not in evidence: Vera Bunakova saw Bennett in the alley

      This issue stems from Vera Bunakova’s trial testimony that late in the afternoon on

the day of the murder, she was picking cucumbers along her alleyway fence adjacent to

Moore’s property when she saw a “gentleman right around here walking and he was on a

cell phone approaching me.” RP (Mar. 1, 2017) at 5575. Bunakova said the man saw her

and turned and walked away, but not before they looked directly at one another for two or

three seconds. She saw the same man walking with a female a short while later. Again,

the man turned away from Bunakova. She described him as taller than 5’10”, not

overweight, very young, and wearing a dark baseball cap, dark T-shirt, and dark wash,

wide-legged jeans. Bunakova further testified she had identified the man that she saw in

the alley in a photomontage shown to her at the prosecutor’s office about one year after

the murder. At trial, she answered “correct” when asked whether her initials next to a

particular photograph in a montage exhibit indicated the person she believed she saw

behind Moore’s house. RP (Mar. 1, 2017) at 5597. The prosecutor then asked Bunakova:

“From your observation today, is that person in the courtroom today?” Bunakova

answered, “Yes.” RP (Mar. 1, 2017) at 5598. Bunakova then turned and identified


                                            44
No. 35297-8-III
State v. Bennett


Bennett as both the man she believed she had seen in the alley and had picked in the

photomontage one year earlier.

       The defense investigator Ellyn Berg testified she was the one who presented the

photomontage to Vera Bunakova at the prosecutor’s office. On defense cross-

examination, Berg said that when Bunakova picked out Bennett she said she was a little

more than 50 percent sure it was him in the alley. According to Berg, Bunakova seemed

a lot more certain in her current trial testimony than she was when shown the

photomontage in September 2015.

       In closing, the prosecutor argued Vera Bunakova “saw the defendant, Chad

Bennett, from approximately 15 feet away in the alley on his cell phone. She testified he

looked right at Vera and made eye contact.” RP (Mar. 21, 2017) at 8207. Bennett

objected on grounds the prosecutor misstated the testimony and argued facts not in

evidence. He moved for a mistrial or at least a curative instruction. The court overruled

the objection, stating, “So I will tell you the jury one more time, you are the sole

determiners or the individuals who will identify what, in fact, the facts were as presented.

And ultimately this is just argument by the attorneys.” RP (Mar. 21, 2017) at 8207.

       The State has wide latitude in drawing and expressing reasonable inferences from

the evidence, including inferences about credibility. Thompson, 169 Wn. App. at 496.


                                             45
No. 35297-8-III
State v. Bennett


Identification does not require knowledge of identity, as Bennett suggests. Vera

Bunakova told the jury the man sitting at counsel table was the man she identified in the

photomontage—the same man she saw twice in the alley and who made eye contact with

her. It was accurate for the prosecutor to argue that Bunakova saw Bennett in the alley.

Her testimony was a matter of weight and credibility for the jury to determine.

       Bennett’s citation to Allen is inapposite. There, the court committed prejudicial

error in twice overruling defense objections to the prosecutor’s misstatement of the legal

definition of “knowledge” in closing argument. Allen, 182 Wn.2d at 378. There is no

such error here.

                   Prosecutor’s emotional appeals during rebuttal closing

       This issue arises from the following statements in the prosecutor’s rebuttal closing

argument:

               I also need to say—and I forgot to—because we get up here and
       you’ve got a six-week trial, and you forget about things. But I needed to
       say to you that preliminarily, and I should have done that, to acknowledge
       Judge Estudillo for handling this case, six, seven weeks we’ve been
       together, some of you may have become friends, great friends in this
       process, but Judge Estudillo handling this case, did an exceptional job.
       Tom Bartunek, our court reporter, he and Claudia Mills keeping track of
       everything that’s being said, which is a monumental task and keeping track,
       and keeping the lawyers straight with the exhibits that Claudia goes through
       is a big job, and the state wanted to acknowledge them. Along with Garey
       Clements, your bailiff, who is taking you in and out of court. And all the


                                            46
No. 35297-8-III
State v. Bennett


       jail staff and the people that are here listening to this case with great
       interest.

RP (Mar. 23, 2017) at 8529-30. Bennett did not object.

       Bennett’s failure to object to the prosecutor’s statements is a waiver of any error

unless the act was so flagrant and ill intentioned that an instruction could not have cured

the resulting prejudice. Emery, 174 Wn.2d at 760-61. The prosecutor’s statements

exhibiting courtesy are, at most, a de minimis attempt to ingratiate himself with the jury.

Bennett shows no apparent prejudice and certainly none that could not have been cured by

an instruction.

       The same is true even if Bennett had objected. In State v. Scherf, 192 Wn.2d 350,

394, 429 P.3d 776 (2018), the prosecutor took advantage of his courtroom seating

position to smile and thank individual jurors during voir dire. The defense twice

objected, and the court admonished the prosecutor. The Washington Supreme Court

rejected Scherf’s allegation of prosecutorial misconduct. The court held that Scherf did

not show that the prosecutor’s contact with the jurors raised the risk of influencing the

verdict, any such conduct was de minimis, and it did not deny Scherf a fair trial. Id. at

395-96. Bennett likewise shows no measurable prejudice.

       Bennett’s cited case, State v. Walker, 182 Wn.2d 463, 341 P.3d 976 (2015), is not

helpful. There, the prosecutor committed flagrant, pervasive, and incurable misconduct

                                              47
No. 35297-8-III
State v. Bennett


by using a PowerPoint presentation to confuse and mislead the jury, much like the State

had done in In re Personal Restraint of Glassman, 175 Wn.2d 696, 286 P.3d 673 (2012).

Walker, 182 Wn.2d at 479. The prosecutor did not confuse or mislead the jury here.

                           Prosecutor’s “we know” arguments

       This issue arises from the prosecutor’s use of the phrase “we know” in closing and

rebuttal closing argument. First, in closing argument, the prosecutor discussed the earlier

quoted jail call between Bennett and his wife. The prosecutor displayed a PowerPoint

slide that said, “What we do know is they are discussing this case during this call.”

Ex. 528, slide 79. Narrating the slide, the prosecutor argued:

       What we do know is they are discussing this case during this call. Chad
       states, “You know that I did it, and you were there with me.” This is the
       information they were discussing when they were talking about holding
       each other hostage multiple times.

RP (Mar. 22, 2017) at 8314-15. Bennett did not object.

       The next day, in rebuttal closing, the prosecutor was discussing the evidence of

Bennett’s DNA on items from the crime scene. The prosecutor stated:

              The crime scene lab people, they went through that, they tested
       everybody they thought was in the house. That doesn’t mean anybody else
       participated. But we know that Chad Bennett was there. We know that he
       grabbed the center of that pillow. And the only reasonable—




                                             48
No. 35297-8-III
State v. Bennett


RP (Mar. 23, 2017) at 8531. Defense counsel objected to “that form of argument, what

we know” as being the prosecutor’s opinion. RP (Mar. 23, 2017) at 8531. The following

exchange ensued:

               MR. DANO: I apologize, Counsel. I know counsel did that a few
       times himself, so—
               MR. BUSTAMANTE: It’s easy enough.
               MR. DANO: It’s an occupational hazard. Sorry, folks.
               The state’s position, I’ll say that, I’ve got to keep saying that, the
       state’s position is that it’s only—the only plausible explanation for that is
       that Chad Bennett grabbed that pillow after he killed Lucille Moore, and
       that’s why his DNA is there.

RP (Mar. 23, 2017) at 8532. The court did not weigh in on the matter and the prosecutor

resumed his argument.

       By failing to object, Bennett has waived the first instance of alleged misconduct

for using “we know” along with the PowerPoint slide. The comment was not so flagrant

and ill intentioned that an instruction could not have cured any resulting prejudice.

Emery, 174 Wn.2d at 760-61. The statement is within the wide latitude afforded the State

to argue—contrary to the Bennetts’ testimonies—that they were, in fact, talking about the

murder.

       With regard to the second instance, Bennett must show there is a substantial

likelihood it affected the verdict. Id. He does not meet that burden. The prosecutor’s

explanation to the jury that his argument was the State’s position, based on the evidence,

                                              49
No. 35297-8-III
State v. Bennett


essentially served as a curative instruction that required no further discussion or input

from the court. As this court recently explained in State v. Rodriguez-Perez, 1 Wn. App.

2d 448, 460, 406 P.3d 658 (2017):

       There is a difference between the prosecutor’s personal opinion, as an
       independent fact, and an opinion based on or deduced from the evidence.
       State v. McKenzie, 157 Wn.2d 44, 53, 134 P.3d 221 (2006) (quoting State v.
       Armstrong, 37 Wash. 51, 54-55, 79 P. 490 (1905)). Misconduct occurs only
       when it is clear and unmistakable that the prosecutor is not arguing an
       inference from the evidence but is expressing a personal opinion. Id. at 54
       (quoting State v. Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 59
       (1983)).

Unlike in Bennett’s cited case of State v. Stith, 71 Wn. App. 14, 21-22, 856 P.2d 415

(1993), the prosecutor was not expressing his personal opinion here.

                                      Burden shifting

       Bennett argues the prosecutor shifted the burden of proof by stating that if there

was any favorable evidence, the defense would have presented it. This issue arises from

the following argument by the prosecutor in rebuttal closing, concerning initial steps by

law enforcement to lock down the crime scene:

              What did they do? They began processing the scene. They were
       meticulous about changing gloves. Counsel made a substantial—spent a lot
       of time with you talking about DNA and cross-contamination and so forth.
       The state’s position is if there was any evidence that there was actual
       contamination of this crime scene, the defense would have been talking
       about it. They talk about a lot of possibilities, possibly this, possibly that,
       possibly this. But there was nothing pointed out that there was any

                                             50
No. 35297-8-III
State v. Bennett


       contamination introduced into this crime scene where Chad Bennett’s DNA
       was planted on the cigarette butt, on the pillow area—the pillow area. I
       know you recall that Anna Wilson talked about that.

RP (Mar. 23, 2017) at 8526-27 (emphasis added). Bennett did not object. The prosecutor

then summarized the State’s evidence of Bennett’s DNA on each item and explained why

Bennett’s speculative hypotheses were unlikely.

       A defendant has no duty to present evidence; the State bears the burden of proving

each element beyond a reasonable doubt. State v. Fleming, 83 Wn. App. 209, 215, 921

P.2d 1076 (1996). It is misconduct for the prosecutor to argue otherwise. Id.

       Again, by failing to object, Bennett has waived the issue unless the comments were

so flagrant and ill intentioned that an instruction could not have cured any resulting

prejudice. Emery, 174 Wn.2d at 760-61. Allegedly improper arguments should be

viewed in the context of the total argument, the issues in the case, and evidence addressed

in the argument. State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994); see also

Thorgerson, 172 Wn.2d at 442. Here, when viewed in context, the prosecutor’s

comments were an appropriate response to the defense closing argument.

       Bennett’s counsel made extensive closing argument about various

contamination/secondary transfer hypotheses to explain exculpatory reasons for the

presence of Bennett’s DNA at the crime scene. He theorized the killer may have been


                                             51
No. 35297-8-III
State v. Bennett


wearing gloves because no male DNA was found on the victim’s neck; thus, it is

unknown how Bennett’s DNA could have been deposited on the kitchen cabinet. He

asked how DNA from two unidentified males could have gotten on Moore’s shirt when

she was not known to be a handshaker or hugger. He emphasized that the highly trained

CSRT professionals were constantly changing gloves to avoid inadvertent transfer of

DNA. He cited to Trevor Allen’s and Anna Wilson’s testimony giving hypothetical

examples of ways DNA evidence can easily be contaminated or deposited, both through

direct contact and secondary transfer, which can occur before investigators arrived, while

they were processing the crime scene, or even at the crime laboratory. He argued various

hypothetical theories of how Bennett’s DNA could have come into contact with or been

transferred onto the blood smear on kitchen cabinet, pillow, and Moore’s shirt. He

reminded the jury that forensic expert Wilson had admitted such transfer was “easy”

without the necessary precautions. RP (Mar. 23, 2017) at 8458. Counsel concluded his

closing argument recounting a hypothetical he had given Wilson, arguing Wilson’s

testimony allowed the jury to consider “if [Bennett] was a heavy shedder and his hand

was very sweaty on a hot summer day when he shook hands with Lucille Moore, that

might have been enough.” RP (Mar. 23, 2017) at 8468.




                                            52
No. 35297-8-III
State v. Bennett


       The prosecutor’s rebuttal argument did not suggest Bennett had any duty to present

evidence of actual contamination, but was a proper direct response to Bennett inviting the

jury to speculate about nonexistent contamination evidence in the State’s case. Russell,

125 Wn.2d at 86 (pertinent remarks of prosecutor not grounds for reversal when invited

by defense counsel). The prosecutor merely pointed out there was no such evidence.

This is entirely consistent with the trial testimony—particularly Wilson’s testimony that

she saw no evidence of DNA contamination in this case either at the crime scene or in the

crime lab. In this situation, it was not improper for the prosecutor to argue that in light of

Bennett’s various contamination hypotheses, he would have demonstrated actual

contamination had there been any.

       Bennett’s cited case Fleming is distinguishable. There, the prosecutor argued lack

of reasonable doubt because there was no evidence the victim had fabricated the charge

or was confused, and, if there had been such evidence, the defendants would have

presented it. 83 Wn. App. at 214. The court held the comments were improper burden

shifting and also infringed on the defendants’ election of the right to remain silent when

viewed in conjunction with the prosecutor’s additional remark that if the defendants are

suggesting reasonable doubt, they would explain some fundamental evidence in the case.




                                              53
No. 35297-8-III
State v. Bennett


Id. at 214-15. Here, on the other hand, the prosecutor did not shift the burden when

directly responding to Bennett’s hypotheticals.

        Undermining the presumption of innocence and trivializing the jury’s role

       This issue arises from the following argument by the prosecutor in rebuttal closing:

               I did want to say one other thing, as well, that I forgot to say at the
       outset. And that is that the system that we’re involved in, of a jury trial, you
       hear the words due process. And this is an example. This is probably the
       biggest example of due process that this office—or that the state has
       participated in, where we’ve afforded the defendant every opportunity to—
       the state put on its case, and for the defense to have an opportunity to put on
       their response, and to speak to you.
               So there’s been no rush to judgment in this. This has been ongoing
       for, as we know, since September of 2014. The investigation done by
       Detective Hufman and his crew, thousands of man hours have been devoted
       to this case. So this wasn’t just a situation where a snap judgment was
       made, a decision to arrest the wrong man, to frame the wrong man was
       made. Nothing of that.

RP (Mar. 23, 2017) at 8536. Bennett did not object.

       Once again, by failing to object, Bennett has waived the issue unless the comments

were so flagrant and ill intentioned that an instruction could not have cured any resulting

prejudice. Emery, 174 Wn.2d at 760-61. And again, the prosecutor’s comments must be

viewed in context; they were in response to the defense closing argument. Russell, 125

Wn.2d at 86.




                                             54
No. 35297-8-III
State v. Bennett


       Bennett’s counsel began his closing argument in the six-week trial by stating that

“90 percent of the state’s case is based on one of four things . . . .” RP (Mar. 22, 2017) at

8329. The first thing was “statements that defendant has given at various times to

Detective Hufman that contain relatively minor discrepancies as to exact sequence of

events, exact[ly] what he did that day, where he went first, second and third, what times

he did what.” RP (Mar. 22, 2017) at 8329. The second thing was the “state’s basing its

case on [jail telephone] statements of the defendant taken after he was arrested, which the

state is now twisting, taking out of context and completely trying to make them appear

that the defendant is guilty, contrary to his testimony, contrary to his own explanations

why he said what he said, and contrary in some instances to common sense.” RP

(Mar. 22, 2017) at 8329. The third thing was “statements and testimony from unreliable

witnesses who changed their stories from what they originally told the police at the time

the investigation first started. Or who completely made up things. Completely fabricated

details to suit what they found out later.” RP (Mar. 22, 2017) at 8330-31. “And finally,

the state’s case is based on speculation, supposition, outlandish theorizing and jumping to

conclusions and inviting you, ladies and gentlemen, to go along for the ride.” RP

(Mar. 22, 2017) at 8331.




                                             55
No. 35297-8-III
State v. Bennett


       As the State contends, it was defense counsel’s latter statement that invited the

alleged inappropriate rebuttal comments. A comparison to the facts in Stith illustrates

that the prosecutor’s comments—to the extent any portion was arguably inappropriate—

were not of a magnitude that any prejudice could not be cured with an instruction.

       In Stith, a drug delivery case where the defendant had previously been convicted of

that crime, the prosecutor commented in closing argument that defendant “‘was just

coming back and he was dealing again.’” Stith, 71 Wn. App. at 16. The prosecutor went

on to remark in rebuttal:

               “And this case, ladies and gentlemen, wouldn’t be . . . in court here
       today if there was any problem about the way Officer[s] Grady and Rossen
       acted. Our system has incredible safeguards that would not allow a case like
       this to come to court if somehow the police acted improperly. So the
       question of probable cause is something the judge has already determined
       before the case came before you today.”

Id. at 17 (second alteration in original). The defense objected to both comments and the

court gave curative instructions.

       In finding that both comments were flagrantly improper, the court reasoned:

               The first comment indicated to the jury that the prior crime for which
       appellant was convicted was drug related (a fact which had not previously
       been entered into evidence) and is also impermissible opinion “testimony”
       that the appellant was selling drugs again and thus was guilty, not only of
       the previous charge, but also of the current charge. Moreover, the remark
       was made in spite of a direct court order on a motion in limine to exclude
       any evidence of prior drug convictions.

                                             56
No. 35297-8-III
State v. Bennett


              The second comment concerning “incredible safeguards” and the
       court’s prior determination of probable cause not only constituted
       “testimony” as to facts not in evidence but also indicated to the jury that, if
       there were any question of the defendant’s guilt, the defendant would not
       even be in court. This was tantamount to arguing that guilt had already
       been determined. Clearly, both comments were flagrantly improper.

Id. at 22. The court applauded the trial court’s efforts to cure the violations, but held the

misconduct was so egregious as to be incurable. Id. at 22-23. The court concluded:

       [T]hese comments clearly reflect the prosecutor’s personal assurances to the
       jury as to the defendant’s guilt. Taken together these comments not only
       implied that the trial was a useless formality because the real issues had
       already been determined but also directly stated that Stith was out on the
       streets, dealing again. Such comments strike at the very heart of a
       defendant’s right to a fair trial before an impartial jury.

Id. at 23.

       Bennett contends the same is true here. He equates the prosecutor’s phrase “the

biggest example of due process”5 the State has ever seen with the “our system has

incredible safeguards” comment in Stith. And like the comments in Stith that the police

did not act improperly and probable cause had already been determined, the prosecutor

here told the jury the police had worked “thousands of man hours” and did not “arrest the

wrong man.” RP (Mar. 23, 2017) at 8536. Additionally, Bennett contends, the

prosecutor here perversely used the length of time that had passed since the crime as


       5
           RP (Mar. 23, 2017) at 8536.

                                              57
No. 35297-8-III
State v. Bennett


evidence that the State had taken the time to charge the right man—even though a

significant portion of that time was due to the hung jury in the first trial. In sum, as in

Stith, the prosecutor’s comments struck at the very heart of Bennett’s right to a fair trial

before an impartial jury and instructions could not have cured the prejudice. Bennett’s

argument fails.

       Unlike in Stith, the prosecutor did not violate a limine ruling to introduce

prejudicial facts not in evidence or imply that Bennett’s guilt had already been determined

by probable cause. The prosecutor’s point here was that due process was fully satisfied

because the trial provided both sides the full opportunity to present their positions to the

jury and that the lengthy investigation showed there was no snap judgment decision to

arrest the wrong man. That the State considered the right man to have been charged after

lengthy investigation was a statement of the obvious, but without personal assurances by

the prosecutor that Bennett was guilty.

       The prosecutor’s comments were a largely appropriate response to Bennett’s

closing argument that the State was inviting the jury to go along for the ride in a case

“based on speculation, supposition, outlandish theorizing, and jumping to conclusions.”

RP (Mar. 22, 2017) at 8331. The prosecutor calling this the “biggest example” of due

process the State has seen was gratuitous hyperbole. But again, unlike in Stith, the


                                              58
No. 35297-8-III
State v. Bennett


comment here did not suggest that due process was a safeguard that ensured Bennett’s

guilt. He makes no showing that any impropriety in the prosecutor’s remarks in response

to Bennett’s argument were egregious and could not have been cured by an instruction.

                              Cumulative effect of misconduct

       Bennett contends the cumulative effect of the prosecutor’s improper arguments

amounts to reversible error. But the cumulative error doctrine “does not apply where the

errors are few and have little or no effect on the outcome of the trial.” State v. Weber,

159 Wn.2d 252, 279, 149 P.3d 646 (2006). Here, we determined the prosecutor twice

misstated Mr. Bodziak’s testimony, but those misstatements were not prejudicial. We

conclude the cumulative error doctrine does not apply.

       D.     EXCEPTIONAL SENTENCE

       The jury returned special verdict forms finding that Bennett manifested deliberate

cruelty in the commission of second degree murder and Moore was a particularly

vulnerable victim. The trial court imposed an exceptional sentence of 660 months.

       Bennett challenges his exceptional sentence on grounds that (1) insufficient

evidence supports the aggravating factors, (2) the aggravating factors are

unconstitutionally vague, and (3) the length of the sentence is arbitrary and excessive.




                                             59
No. 35297-8-III
State v. Bennett


              1.     Sufficiency of the evidence

       We review whether the record supports the jury’s special verdict on the

aggravating circumstances under the clearly erroneous standard. State v. Hale, 146 Wn.

App. 299, 307, 189 P.3d 829 (2008).

       A court may depart from the presumptive sentence range if the offense involves

substantial and compelling reasons. RCW 9.94A.535. “Aggravating circumstances” that

can support a departure from the guidelines include the defendant’s conduct “manifested

deliberate cruelty to the victim” and the defendant knew or should have known the victim

“was particularly vulnerable.” RCW 9.94A.535(3)(a), (b).

       A jury must find any facts supporting aggravating circumstances beyond a

reasonable doubt and by special interrogatory. State v. Stubbs, 170 Wn.2d 117, 123, 240

P.3d 143 (2010). We use the same standard of review for the sufficiency of the evidence

of an aggravating factor as we use for sufficiency of the evidence for the elements of a

crime. State v. Webb, 162 Wn. App. 195, 205-06, 252 P.3d 424 (2011). Specifically,

evidence is sufficient to support the special interrogatory if, after reviewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the aggravating factor beyond a reasonable doubt. See

Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).


                                             60
No. 35297-8-III
State v. Bennett


       Deliberate cruelty. “Deliberate cruelty consists of gratuitous violence or other

conduct that inflicts physical, psychological, or emotional pain as an end in itself.” State

v. Tili, 148 Wn.2d 350, 369, 60 P.3d 1192 (2003). To justify an exceptional sentence, the

cruelty must go beyond what is normally associated with the commission of the charged

offense or what is inherent in the elements of the offense. Id. The trial court’s jury

instruction defined “deliberate cruelty” consistent with these principles.

       Bennett contends the deliberate cruelty finding is unsupported by sufficient

evidence and must be struck because the State failed to prove gratuitous violence that

inflicted pain as an end in itself or that this murder was significantly more egregious than

the typical murder. We disagree.

       Dr. Eric Kiesel, the forensic pathologist who performed Moore’s autopsy, gave

testimony describing her injuries and the likely cause of death. He described a number of

“injuries, abrasions, contusions on both sides of the head, as well as on the nose, cheek

and lips.” RP (Feb. 23, 2017) at 5081. Included were multiple significant head injuries

that resulted in subarachnoid hemorrhage on both sides of her brain, indicating it had

been severely shaken by blunt force trauma. Her maxilla was fractured with force that

Dr. Kiesel compared to a boxing injury or car crash. He believed the head injuries were

most likely inflicted by fist or hand. Moore also sustained a sharp, incised wound on her


                                             61
No. 35297-8-III
State v. Bennett


right hand, which Dr. Kiesel found consistent with a defensive wound incurred while she

was alive. He also found evidence of blunt force injury to her neck. Petechial

hemorrhages in both eyes correlated with fractures to the superior horns of the thyroid

cartilage, which Kiesel said strongly suggests manual strangulation.

       Moore also sustained two sharp force injuries to the throat, which Dr. Kiesel

described as incised wounds caused by a sharp instrument. She received another two-

inch deep stab wound to the right side of her neck. In addition, she was stabbed 17 times

in the chest. Eleven of those wounds penetrated the heart muscle itself. Dr. Kiesel

opined that the sharp force injuries, including those to the throat, were most likely

inflicted by a knife with about a one-half inch wide blade.

       Dr. Kiesel could not be certain of the order in which the injuries were inflicted.

He did conclude Moore was on the ground when she received the stab wounds because

her shirt was covered with blood but none was on her pants, where blood would have

dripped had she been standing. Kiesel said Moore could potentially have died solely from

the blunt force trauma to the head but there is no way to say with 100 percent certainty.

But she certainly would have died from either the incised wounds to the neck or stab

wounds to the heart had there been no other injuries. Kiesel believed Moore was still




                                             62
No. 35297-8-III
State v. Bennett


alive when she received the stab wounds that went through the fat around the heart and

penetrated the heart itself.

       Ultimately, while acknowledging the blunt force injuries were a significant part of

the total picture, Dr. Kiesel concluded the mechanism of death was most likely loss of

blood resulting from the sharp force wounds to the neck and chest. He said bleeding from

the neck wounds would have caused her to lose consciousness within 10 to 20 seconds

and then it takes a matter of minutes to die. He also opined the injuries inflicted on

Moore were in excess of what it takes to kill a person.

       Bennett focuses on Dr. Kiesel’s testimony that any of Moore’s head, neck, or chest

injuries could have caused her death—a fact that the prosecutor acknowledged in closing

argument and the trial court echoed in its exceptional sentence finding of fact 6. Bennett

then points to Dr. Kiesel’s testimony that the stab wounds would have caused the victim

to lose consciousness in 10 to 20 seconds and the prosecutor’s acknowledgment in

closing argument that she was “not probably alive for a long time.” RP (Mar. 22, 2017)

at 8322. He couples this with the testimony of crime scene specialist, Trevor Allen, who

said it appeared the victim was knocked down and then stabbed and that the incident

appeared to be contained to a very small location without a prolonged struggle. He said,

“It didn’t seem like there was a long, drawn-out fight.” RP (Feb. 22, 2017) at 4881.


                                             63
No. 35297-8-III
State v. Bennett


      Bennett uses the above testimony to contrast this case with State v. Scott, 72 Wn.

App. 207, 866 P.2d 1258 (1993), aff’d sub nom. State v. Ritchie, 126 Wn.2d 388, 894

P.2d 1308 (1995), whereas the State contends Scott is analogous and supports the

deliberate cruelty finding. In Scott, the victim was elderly, weak, and had diminished

mental capacities. Scott, 72 Wn. App. at 214. The court explained:

      Scott could easily have killed her by strangulation, which he did, but only
      after physically and sexually assaulting her. The medical examiner found
      that the manual and ligature strangulation were separate acts of violence.
      The first act of strangulation and/or any of the blows to the victim’s head
      were sufficient evidence upon which to base a finding of premeditation. All
      of the other blows to the head, face, and ribs, which occurred in three
      different rooms and resulted in 20 broken bones, were additional violent
      acts separate from the premeditation and the final strangulation.

Id. at 214-15. Scott contended his case was unlike cases involving deliberate cruelty due

to prolonged attacks and lingering suffering. Id. at 215. The court disagreed:

      [T]he record supports a finding of a prolonged attack by Scott and lingering
      suffering by the victim. It took time to break 20 bones, strangle the victim
      twice, and sexually assault her. The evidence that the assaults occurred in
      three different rooms also suggests a prolonged attack and lingering
      suffering.

Id.

      Bennett contends the lack of evidence that Moore was subject to prolonged attack

or lingering suffering makes his case like State v. Brush, No. 71067-2-I, 2014 WL

1912009 (Wash. Ct. App. May 12, 2014) (unpublished)

                                            64
No. 35297-8-III
State v. Bennett


http://www.courts.wa.gov/opinions/pdf/710672.pdf, aff’d in part, rev’d in part by 183

Wn.2d 550, 353 P.3d 213 (2015) and State v. Serrano, 95 Wn. App. 700, 977 P.2d 47

(1999), where the courts reversed deliberate cruelty verdicts in similar circumstances. In

Brush, the defendant shot the victim Bonney four times in rapid succession. 2014 WL

1912009 at *1. At trial, the medical examiner described the homicide as one of the two

worst he had observed in terms of being “‘gratuitously violent’” and causing damage in

excess of that necessary to kill someone. Id. at *2. The jury found deliberate cruelty. Id.

In reversing the aggravator on appeal as unsupported by the record and therefore clearly

erroneous, the court reasoned:

       [T]the entire incident was over in seconds and the actual shots occurred in
       rapid succession. Although the first nonlethal shot undoubtedly caused
       Bonney pain, there is no indication that Brush deliberately sought to inflict
       pain as an end in itself or to prolong Bonney’s suffering in any way.
       Indeed, the evidence is to the contrary; all of the eyewitnesses suggested
       that he fired the second lethal shot almost immediately after the first.

Id. at *6.

       In Serrano, the defendant was convicted of second degree murder for shooting the

victim in the back five times while he was up in the air in an “orchard ape” (caged

platform) thinning apples. The trial court found the conduct deliberately cruel and

imposed an exceptional sentence, in part on that factor. Serrano, 95 Wn. App. at 703,




                                             65
No. 35297-8-III
State v. Bennett


710-11. In holding the deliberate cruelty finding was unsupported by the record and

therefore clearly erroneous, this court reasoned:

              Some Washington cases have upheld exceptional sentences on the
       basis of the number of wounds inflicted. See, e.g., [State v.] Ross, 71 Wn.
       App. 556[, 861 P.2d 473 (1993)] (over 100 wounds); State v. Drummer, 54
       Wn. App. 751, 775 P.2d 981 (1989) (stabbing 20 times); State v. Harmon,
       50 Wn. App. 755, 750 P.2d 664 (stabbing/slicing 64 times), review denied,
       110 Wn.2d 1033 (1988). In each of those cases, however, the sheer number
       of wounds demonstrated a cruelty not usually associated with the offenses.
       Mr. Serrano shot [the victim] five times. This fact itself does not suggest he
       gratuitously inflicted pain as an end in itself.

Id. at 713.

       A majority of this court distinguishes this case from Brush and Serrano where

rapid gun fire suggested a quick death without any gratuitous infliction of pain. Here,

viewing the evidence in the light most favorable to the State, the multiple blows to

Moore’s head, the manual strangulation, the knife slash to her neck, and 17 stab wounds

to her chest—including 11 of which pierced her heart—permitted a rational trier of fact to

find beyond a reasonable doubt that Bennett gratuitously inflicted pain on Moore. The

sheer number and variety of serious injuries inflicted demonstrates a cruelty not usually




                                             66
No. 35297-8-III
State v. Bennett


associated with the offense.6 The majority concludes, when viewing the evidence in the

light most favorable to the State, a rational trier of fact could find the State proved this

aggravating factor beyond a reasonable doubt.

       Bennett also contends the State was required to provide the jury with comparative

facts of other murder cases to prove the murder was atypical to other murders. His

assertion is unsupported by any authority and lacks merit. His cited cases State v.

Suleiman, 158 Wn.2d 280, 294 n.5, 143 P.3d 795 (2006) and State v. Faagata, 147 Wn.

App. 236, 249-51, 193 P.3d 1132 (2008), rev’d on other grounds by State v. Turner, 169

Wn.2d 448, 238 P.3d 461 (2010), merely reiterate the principle that post-Blakely7 it is the




       6
         This judge believes the evidence is insufficient for a rational trier of fact to make
the required findings beyond a reasonable doubt. The evidence was consistent with the
State’s theory that Bennett struck Moore multiple times with his fist or an object,
attempted to strangle her, then slashed her throat, and stabbed her numerous times in the
chest and heart. The location of the knife slash to the throat and the numerous stabs to the
chest and heart indicate Bennett sought to kill Moore quickly once he knocked her to the
ground. A brief violent attack is inconsistent with inflicting gratuitous fear or pain. The
State believed Moore died quickly and did not even argue the injuries occurred in a
manner designed to inflict pain as an end in itself. From this evidence, a jury would need
to speculate whether the wounds occurred by a brief violent attack or by a methodical
series of acts designed to inflict pain as an end in itself. Where the State’s evidence
requires a jury to speculate rather than make reasonable inferences, the verdict must be
overturned. State v. Hummel, 196 Wn. App. 329, 357, 383 P.3d 592 (2016). I would
reverse the jury’s finding of deliberate cruelty and remand for resentencing.
       7
           Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

                                              67
No. 35297-8-III
State v. Bennett


jury’s role to determine atypicality. The cases do not require the State to present

comparative evidence.

       Particularly vulnerable victim. The trial court instructed the jury that a victim is

“particularly vulnerable” if he or she is more vulnerable to the commission of the crime

than the typical victim of first or second degree murder, and the victim’s vulnerability

must also be a substantial factor in the commission of the crime.

       Bennett argues the State presented insufficient evidence that Moore’s vulnerability

was a substantial factor in her murder. He notes that the State’s theory of the case, as

argued in closing, was that Moore threatened to evict Bennett for being unable to pay rent

and this threat caused Bennett to snap. Bennett argues the record conclusively shows

Moore’s age played no factor at all in his decision to kill her, let alone a substantial

factor. He likens his case to Serrano and State v. Barnett, 104 Wn. App. 191, 16 P.3d 74

(2001).

       As stated above, the victim in Serrano was in an orchard ape and could not run or

protect himself from the gunshots. The trial court imposed the exceptional sentence, in

part on a finding of victim vulnerability. Serrano, 95 Wn. App. at 710-11. This court

reversed because the record did not suggest the victim’s vulnerability was a substantial




                                              68
No. 35297-8-III
State v. Bennett


factor in the shooting. Id. at 712. Instead, the apparent motive was that the defendant’s

wife had an affair with the victim. Id. at 703 n.1, 710.

       In Barnett, the defendant committed multiple crimes against his ex-girlfriend. 104

Wn. App. at 194. The court imposed an exceptional sentence in part based on victim

vulnerability because she was 17 years old and the defendant waited until she was home

alone to initiate the attack. Id. at 202. In reversing the aggravator as unsupported by the

evidence, this court reasoned the victim was not particularly vulnerable because she led

the defendant on a lengthy chase and did not suffer because of age, disability, or ill

health. Id. at 204. Further, she was not incapacitated by the attack and thereby rendered

vulnerable. Instead, she was able to avoid his attempts to stab her and eventually

escaped. Id. In addition, her being home alone was not the reason the defendant chose

her as a victim. He chose her because of their failed relationship, not because she

presented an easy target for a random crime. Id. at 205.

       We disagree with Bennett’s implied argument that he could not have snapped and

decided to kill Moore because she was particularly vulnerable. A person who snaps can

decide either to attack the person who made them angry or to walk away in anger.

Viewing the evidence in the light most favorable to the State, a rational trier of fact could

have found beyond a reasonable doubt: (1) Moore, a woman in her 80s who lived alone,


                                             69
No. 35297-8-III
State v. Bennett


was more vulnerable to being murdered than a typical person, and (2) her vulnerability

was a substantial factor why Bennett murdered her (instead of walking way in anger).

       Bennett also contends the State was required to present the jury with comparison

evidence of vulnerability from other murder cases. His assertion is unsupported by

authority and lacks merit. His cited cases State v. Vermillion, 66 Wn. App. 332, 832 P.2d

95 (1992) and State v. Bedker, 74 Wn. App. 87, 871 P.2d 673 (1994) contain no such

requirement.

               2.    Vagueness challenge to aggravating factors

       Bennett argues the aggravating factors of “deliberate cruelty” under

RCW 9.94A.535(3)(a), and “particularly vulnerable” under RCW 9.94A.535(3)(b) are

unconstitutionally vague, both facially and as applied.

       The due process clauses of the Fifth and the Fourteenth Amendments to the United

States Constitution require that statutes afford citizens a fair warning of prohibited

conduct. City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990). The

due process vagueness doctrine requires that criminal statutes (1) be specific enough to

give citizens fair notice of what conduct is proscribed, and (2) provide ascertainable

standards of guilt to protect against arbitrary arrest and prosecution. Id.; State v. Baldwin,

150 Wn.2d 448, 458, 78 P.3d 1005 (2003). The prohibition against vagueness applies


                                             70
No. 35297-8-III
State v. Bennett


both to statutes defining elements of crimes and to “statutes fixing sentences.” Johnson v.

United States, __ U.S. __, 135 S. Ct. 2551, 2557, 192 L. Ed. 2d 569 (2015). Statutes that

fix sentences must “specify the range of available sentences” with sufficient clarity.

Beckles v. United States, __ U.S.__, 137 S. Ct. 886, 892, 197 L. Ed. 2d 145 (2017).

       In Baldwin, the Washington Supreme Court held: “[D]ue process considerations

that underlie the void-for-vagueness doctrine have no application in the context of

sentencing guidelines.” Baldwin, 150 Wn.2d at 459. The court reasoned that sentencing

guideline statutes “do not define conduct nor do they allow for arbitrary arrest and

criminal prosecution.” Id. And, “[s]entencing guidelines do not inform the public of the

penalties attached to criminal conduct nor do they vary the statutory maximum and

minimum penalties assigned to illegal conduct by the legislature.” Id. The court

concluded that the guidelines are intended only to structure discretionary decisions

affecting sentences; they do not specify that a particular sentence must be imposed. Since

the guideline statutes do not require a certain outcome, they create no constitutionally

protectable liberty interest. Id. at 461.

       At the time of Baldwin, the Sentencing Reform Act of 1981 (SRA), chapter 9.94A

RCW, authorized judges to impose a sentence outside the standard range based on the

judge’s finding that there were “substantial and compelling reasons justifying an


                                             71
No. 35297-8-III
State v. Bennett


exceptional sentence.” Former RCW 9.94A.120(2) (2000). The judge was required only

to provide written findings and conclusions and to base the exceptional sentence on

factors not used in computing a standard range sentence. Former RCW 9.94A.120(3);

State v. Gore, 143 Wn.2d 288, 315, 21 P.3d 262 (2001), overruled by State v. Hughes,

154 Wn.2d 118, 131, 110 P.3d 192 (2005). Therefore, the SRA allowed the judge “to

impose an exceptional sentence . . . without the factual determinations being charged,

submitted to a jury, or proved beyond a reasonable doubt.” Gore, 143 Wn.2d at 314.

       In Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403

(2004), the Court ruled this sentencing scheme unconstitutional. To comply with the

Sixth Amendment, the Court held that, except for the fact of a prior conviction, any fact

that increases the penalty for a crime must be admitted by the defendant or submitted to a

jury and proved beyond a reasonable doubt. A trial court’s sentencing authority must be

limited to the maximum sentence the court could impose without making any additional

findings. Id. at 303-04. Under the SRA, such a sentence would be the maximum

punishment within the standard range rather than the statutory maximum for the particular

crime. Id. After Blakely, the trial court is allowed to impose an exceptional sentence

based on a finding of substantial and compelling reasons. RCW 9.94A.535. But the facts

supporting aggravating sentences in RCW 9.94A.535(3) must be proved to a jury, or to


                                            72
No. 35297-8-III
State v. Bennett


the court if a jury is waived, beyond a reasonable doubt, or by the defendant’s stipulation.

RCW 9.94A.537(3).

       In Johnson v. United States, the United States Supreme Court struck down as

unconstitutionally vague a provision of the Armed Career Criminal Act of 1984 in

18 U.S.C. § 924(e)(1) that required courts to increase the sentence from a 10-year

maximum to a 15-year mandatory minimum for defendants convicted of felon in

possession of a firearm with three prior violent felony convictions. Johnson, 135 S. Ct. at

2555. Johnson ruled that such “statutes fixing sentences” are subject to a vagueness

challenge. Id. at 2556-57.

       In Beckles, the United State Supreme Court addressed a vagueness challenge to

advisory federal sentencing guidelines. Beckles, 137 S. Ct. at 890. The Court observed

that vagueness concerns apply to laws that define criminal offenses and that “fix the

permissible sentences for criminal offenses.” Id. at 892. The laws “must specify the

range of available sentences” with sufficient clarity. Id. The Court distinguished

Johnson because unlike the sentence-fixing statute at issue there, the guidelines did not

fix the permissible range of sentences that a trial court must impose. Id. Instead, they

“merely guide the exercise of a court’s discretion in choosing an appropriate sentence




                                             73
No. 35297-8-III
State v. Bennett


within the statutory range.” Id. Therefore, the guidelines were not subject to a vagueness

challenge under the due process clause. Id. at 895.

      Recognizing and applying Beckles, all three divisions of this court continue to

reject due process vagueness challenges to aggravating factors like Bennett’s and adhere

to Baldwin as controlling law. State v. DeVore, 2 Wn. App. 2d 651, 413 P.3d 58 (2018)

(Division Three), review denied, 191 Wn.2d 1005 (2018); State v. Brush, 5 Wn. App. 2d

40, 425 P.3d 545 (2018) (Division Two), review denied, 192 Wn.2d 1012 (2019); State v.

Lloyd, 3 Wn. App. 2d 1060, 2018 WL 8642839 (Division One), (unpublished)

http://www.courts.wa.gov/opinions/pdf/751115.pdf., review denied, 191 Wn.2d 1016

(2018).

      In Devore, we stated:

              We consider Matthew DeVore’s appeal akin to Beckles v. United
      States, not Johnson v. United States. The destructive impact factor does not
      increase the permissible sentence of the offender. The trial court must still
      sentence the defendant within the statutory maximum of the crime, life
      imprisonment. Therefore, we hold that challenges to the destructive impact
      factor and other aggravating factors under RCW 9.94A.535(3) do not merit
      review under the void for vagueness doctrine. We do not then address any
      vagaries of the aggravating factor.

DeVore, 2 Wn. App. 2d at 665 (emphasis added).

      In Brush, Division Two of this court ruled likewise, rejecting the same arguments

Bennett makes and citing to DeVore. Brush, 5 Wn. App. 2d at 61-63. In the unpublished

                                            74
No. 35297-8-III
State v. Bennett


case, Lloyd, Division One also rejected a void for vagueness challenge to the deliberate

cruelty and particular vulnerability factors, upholding Baldwin and citing Beckles as

reaffirmation that the aggravating factors merely guide the sentencing court’s decision to

impose an exceptional sentence. Lloyd, 2018 WL 8642839 at *26. In short, the

requirements under Blakely and RCW 9.94A.535 and .537 that a jury must determine the

applicability of certain aggravators does not change the Baldwin analysis.

       Bennett nevertheless contends DeVore and Brush misapply Beckles. He also

contends that in two post-Blakely cases, the Washington Supreme Court has signaled its

understanding that Baldwin no longer applies and aggravators are subject to the

prohibition on vague laws because the cases assumed the defendants could bring void for

vagueness challenges. State v. Murray, 190 Wn.2d 727, 732 n.1, 416 P.3d 1225 (2018);

State v. Duncalf, 177 Wn.2d 289, 298, 300 P.3d 352 (2013). But the court in those cases

determined that “even if we assume” or “even assuming” the vagueness doctrine applies,

the defendants’ vagueness challenges failed; thus, the court in each case found it

unnecessary to address whether Baldwin survived Blakely. Whatever the Supreme

Court’s future intent on this issue, it is currently resolved in DeVore, Brush, and Lloyd.

The Supreme Court denied review in each of those cases.




                                             75
No. 35297-8-III
State v. Bennett


       Baldwin remains good law and applies here. Bennett cannot assert a vagueness

challenge to RCW 9.94A.535(3)(a), (b).

       Even assuming Bennett can make his vagueness challenges, he makes no showing

that the deliberate cruelty and victim vulnerability factors are vague as applied to his

conduct.

              3.     Excessive length of sentence

       Bennett contends the 660-month length of his exceptional sentence for second

degree murder was based on untenable reasons and is arbitrary and excessive.

       We review whether a sentence is clearly excessive only for an abuse of discretion.

Ritchie, 126 Wn.2d at 392. If the record supports the reasons for the exceptional sentence

and justifies an increased exceptional sentence, we will reverse only if no reasonable

person would have imposed the sentence, i.e., it is based on untenable grounds or

imposed for untenable reasons. Id. at 392-93; State v. Bluehorse, 159 Wn. App. 410, 434,

248 P.3d 537 (2011). If the trial court does not base its sentence on an improper reason,

such as race or receipt of prison good time credit, this court will not deem the sentence

excessive unless its length, in light of the record, shocks the conscience. Ritchie, 126

Wn.2d at 396.

       In imposing Mr. Bennett’s 660-month sentence, the trial court reasoned:


                                             76
No. 35297-8-III
State v. Bennett


               I do believe there are similarities between the case of State vs. Scott
       and the present matter. And I have attempted to draw some conclusions
       about how the trial judge reached its decision in that case, considering the
       heinous facts of that case. And what it appears to me that the trial court did
       in that case was to first identify a sentence within the higher end of the
       applicable standard range, and then applied a multiplier of three as a result
       of the presence of the aggravating factors. And this court believes that that
       is a reasonable guidance or reasonable instructions [sic] to follow.
               So in the present case the standard range is between 134 and 234
       months. And based on my analysis, again, of the method used in State vs.
       Scott, Mr. Bennett, your sentence will be 660 months.

RP (May 12, 2017) at 8761.

       In Scott, the defendant was convicted of first degree murder for raping and killing

a 78-year-old woman who suffered from Alzheimer’s disease and lived alone. 72 Wn.

App. at 209-10. The defendant’s standard range was 240 to 320 months. Based on four

aggravating factors—abuse of trust, victim vulnerability, deliberate cruelty, and multiple

injuries inflicted in the commission of the crime—the trial court imposed an exceptional

sentence of 900 months. Id. at 210. On appeal, the court affirmed the sentence because it

did not shock the conscience, and, although harsh, was not so clearly excessive that no

reasonable person would have imposed it. Id. at 221-22.

       Bennett’s 660-month sentence is approximately 2.82 times greater than the 234-

month top end of his standard range. Although the sentence is harsh and quite substantial

relative to Bennett’s standard range, its length does not shock the conscience in light of


                                             77
No. 35297-8-III
State v. Bennett


what the record shows to be a violent murder of a particularly vulnerable 82-year-old

woman. Contrary to Bennett’s contention, using Scott for comparison does not make the

court’s sentencing decision here untenable. The 660-month sentence is not one that no

reasonable person would have imposed.

      As the State notes, exceptional sentences of similar magnitude have been affirmed

on appeal. See e.g., Ritchie, 126 Wn.2d at 399 (upholding 900-month exceptional

sentence where standard range was 240 to 320 months); State v. Van Buren, 112 Wn.

App. 585, 596-601, 49 P.3d 966 (2002) (upholding 600-month sentence for first degree

murder where plea agreement recommended 292-month standard range sentence); State v.

Burkins, 94 Wn. App. 677, 697, 702, 973 P.2d 15 (1999) (upholding 720-month sentence

despite 333-month standard maximum); see also State v. Smith, 82 Wn. App. 153, 156,

167, 916 P.2d 960 (1996) (upholding 100-year sentence that was 3.1 times the top end of

the standard range for attempted first degree murder, robbery, rape, and kidnapping).

      Finally, Bennett’s assertion of youth as a mitigating factor to lessen his 660-month

sentence is without merit. He was two weeks shy of his 25th birthday when he committed

the murder. Assuming, at his age, that he could have argued youth as a mitigating factor

under State v. O’Dell, 183 Wn.2d 680, 358 P.3d 359 (2015), he presented no such

evidence or argument at sentencing. Youth does not “per se automatically reduce an adult


                                           78
No. 35297-8-III
State v. Bennett


offender's culpability." Id. at 689. For the court to consider it, the "defendant must

provide some evidence that youth in fact impaired his capacities." Id. Bennett did not do

so. He steadfastly maintained his innocence all the way through sentencing. The youth

factor was appropriately absent from the trial court's sentencing decision.

      We conclude the court did not abuse its discretion by imposing the 660-month

exceptional sentence.

      Affirmed.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                          Lawrence-B~y, J.          -1
                                                                        j
WE CONCUR:




      8
         The Honorable Rich Melnick is a Court of Appeals, Division Two, judge sitting
in Division Three under CAR 2l(a).

                                            79
