     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


STATE OF WASHINGTON,
                                                 No. 77738-6-1
                     Respondent,
                                                 DIVISION ONE
       V.

BRIAN O'KEITH RITCH,                             UNPUBLISHED OPINION

                     Appellant.                  FILED: June 11.2018

       SPEARMAN, J. — To prevail on a claim of prosecutorial misconduct where a

defendant did not object at trial, the defendant must establish that the

prosecutor's comments were so flagrant that the resulting prejudice could not

have been cured through instruction to the jury. Brian O'Keith Ritch challenges

his conviction, arguing that the prosecutor's comments during closing argument

were improper and prejudicial. But any impropriety in the comments could have

been cured through instruction. We affirm.

                                      FACTS

       Ritch was tried on charges of child rape and child molestation. Ritch's

daughter, H.R., testified to repeated incidents of abuse occurring over several

years. She described in detail incidents that occurred when she was nine and ten

years old. The jury convicted Ritch as charged. He appeals.
No. 77738-6-1/2

                                   DISCUSSION

       Ritch asserts that the prosecutor committed reversible misconduct during

closing argument. To prevail on a claim of prosecutorial misconduct, a defendant

must generally establish that the prosecutor's comments were both improper and

prejudicial. State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937(2009). Where the

defendant did not object to the allegedly improper comments at trial, he must

meet a heightened standard. In that case, the defendant must show that the

misconduct was so flagrant and prejudicial that it could not have been cured by

Instruction. Id.

       Ritch first objects that the prosecutor bolstered H.R.'s credibility and

argued facts outside the record. A prosecutor has wide latitude to argue

inferences from the evidence during closing argument. Fisher, 165 Wn.2d at 747.

A prosecutor may not, however, argue facts not in evidence. Id. Likewise, a

prosecutor may not vouch for a witness's credibility, as by expressing a personal

belief in the witness's veracity. State v. Thomerson, 172 Wn.2d 438,442, 258

P.3d 43(2011). We review a prosecutor's comments during closing argument in

the context of the entire argument. Fisher, 165 Wn.2d at 747.

       H.R. was twelve years old at the time of trial. After testifying to the abuse,

she stated that she did not tell anyone at the time because Ritch told her not to

and because she was scared it was her fault. H.R. testified that she eventually

disclosed the abuse because she was so sad. She said that one night, about a

year before trial, she had been crying all night. She tried to stay awake to talk to

her mother in the morning before she left for work. But, H.R. stated, she fell


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No. 77738-6-1/3

asleep and did not wake up until after her mother had left. Id. at 269. She

described the next day as "just a sad day." Verbatim Report of Proceedings

(VRP)at 268. H.R. testified that, when her mother came home for lunch, she

tried to tell her about the abuse but could not. Her mother asked what was wrong

and then, H.R. stated, she told her.

       At times during her testimony, H.R. spoke inaudibly, needed to take

breaks, and needed tissues. She also yawned and appeared sleepy. She stated

that she was tired from talking.

       In closing argument, the prosecutor recounted H.R.'s testimony

concerning the day she disclosed the abuse:

           And so when I asked her why — how did you finally decide to
       tell, she said it was just too sad. I don't even remember anything
       about that day except it was just a really sad day. I couldn't
       sleep. And I was crying and crying. And I thought I might stay up
       long enough that I could tell my mom first thing in the morning,
       but I didn't make it.
           Apparently judging by the yawning on the stand sleepiness is
       a response that[H.R]experiences In response to stress and in
       response to the fact she'd been up most of the night until roughly
       4:00 a.m. trying to hold on until she could tell her mom, but she
       didn't make it. She fell asleep.

VRP at 564. Ritch objected that there was no testimony referring to 4:00 a.m.,

stating "I just don't — I believe she spoke about 4:00 a.m. I don't believe that was

testified to." Id. at 564-65. The court responded "No that extent, that the question

goes to a particular timing as to what was involved or not, I will go ahead and

strike that portion as to the time itself." ii at 565.

       On appeal, Ritch argues that the prosecutors comment that H.R. became

sleepy as a response to stress is unsupported by evidence. He argues that this


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No. 77738-6-1/4

comment amounted to arguing facts outside the record and improperly bolstering

H.R.'s credibility. Ritch asserts that he objected to this comment below and need

only meet the lesser standard of showing that the comment was improper and

prejudicial.

       We disagree. Ritch's objection below was to the time 4:00 a.m. He did not

object to the argument that H.R.'s yawning and sleepiness were a response to

stress. To prevail, he must show that the comment was not only improper but

also so prejudicial that it could not have been cured through instruction. Ritch

fails to meet this standard. If there was any impropriety in the prosecutor's

comment about H.R.'s yawning and sleepiness, it could have been cured through

Instruction.

       Ritch next argues that the prosecutor misstated the law concerning the

jury's role and the State's burden of proof. Under the pattern jury instruction

approved by the Supreme Court,juries are instructed that if, after full and fair

consideration of the evidence, they "'have an abiding belief in the truth of the

charge,'" they are satisfied beyond a reasonable doubt State v. Boyd, 1 Wn.

App.2d 501, 521,408 P.3d 362(2017) rev. denied, 190 Wn.2d 1008,414 P.3d

578(2018)(quoting WASHINGTON PRACTICE: WASHINGTON PATTERN JURY

INSTRUCTIONS: CRIMINAL 4.01 (4th ed. 2018)(emphasis added). In contrast, it is

improper to instruct the jury that its role is to "determine the truth" or that its

verdict must "speak the truth." State v. Emery, 174 Wn.2d 741, 760, 278 P.3d

653(2012). This is because the jury's role is to determine whether the State has

proved the charge beyond a reasonable doubt, not to determine the truth. Id.


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No. 77738-6-1/5

       In this case, Ritch's theory at trial was that H.R.'s testimony was

Inconsistent and uncorroborated. The prosecutor, in her closing argument,

reminded the jury that it was the sole judge of credibility. After summarizing the

testimony supporting each element of the crimes charged, the prosecutor

addressed the burden of proof:

          I want to talk to you now about the notion of beyond a
       reasonable doubt...
          This is a legal standard, not an impossible standard. It
       doesn't mean beyond all concept of any doubt that you might
       create in your own mind. It doesn't mean that you start asking
       yourself could this have been a masked intruder who came in,
       and she just got confused? You don't have to reach for
       outlandish explanations, and I don't have to disprove those.
          I simply have to prove to you beyond a reasonable doubt that
       what we are alleging happened at the hands of this defendant
       actually did happen beyond a reasonable doubt. Which means
       that if you have an abidina belief in the truth of the facts that you
       heard from the testimony here, then you can be satisfied.
          Specifically with regard to rape of a child and child
       molestation charges, the victim's testimony — an alleged victim's
       testimony need not be corroborated. There is no DNA
       requirement There is no physical injury requirement.

VRP at 562-63(emphasis added). In her final comments,the prosecutor argued:

           [Rath]said all you need — all the State wants to say is that
       all you need is a little girl to say so. What you need is for that
       girl to say so, and then to ask yourselves do I have an abiding
       belief in the truth of what she said? And if what she said is true.
       Is it a violation of the law as described in these instructions?

Id. at 628.

       Ritch contends that, by telling the jury to consider whether it had "an

abiding belief in the truth of the facts that you heard from the testimony here," the

prosecutor urged the jury to find the truth. VRP at 562. He asserts that this was

flagrant misconduct that could not have been cured through instruction. We


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No. 77738-6-1/6

disagree. The prosecutor correctly argued that the jury was the sole arbiter of

credibility and that H.R.'s testimony alone, if credible, was sufficient to establish

each element of the crimes charged. In context, the prosecutor did not urge the

jury to find the truth. Any impropriety in referring to "an abiding belief In the truth

of the facts," rather than "an abiding belief in the truth of the charge" could have

been cured through instruction.

       Affirmed.



                                                     ce2(isAtts-. N)
WE CONCUR:                                                     )‘




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