  IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,                             No. 72761-3-1                      ^;

                     Respondent,                 DIVISION ONE
           v.



JOSHUA DULATRE BROWN,                            UNPUBLISHED OPINION                ^
                     Appellant.                  FILED: March 2, 2015                ro,



       Leach, J. — Joshua Brown appeals his conviction for two counts of third

degree rape of a child. He challenges the trial court's denial of his motion for new

trial based on a bailiff's statements that caused a jury, during its deliberations, to not

look at photographs admitted at trial. Because the State has demonstrated beyond a

reasonable doubt that the bailiff's improper statements did not prejudice Brown and

the claims asserted in Brown's statement of additional grounds lack merit, we affirm.

                                    BACKGROUND


       In September 2011, Joshua Brown met A.B. when he pulled up next to her in

a car while she walked down Kitsap Way.         He drove them to a park, where they

talked for 20 to 30 minutes. They discussed their ages: A.B. was 14 and Brown was

24. Brown dropped A.B. off at her home.

       One or two days later, Brown called A.B. and came to her house while her

parents were in California. They had sexual intercourse twice. Brown told A.B. not to
No. 72761-3-1/2


tell anyone. A day or two later, he called A.B. and told her his parents found out

about the relationship and that he could not talk to her anymore.

       In March 2012, Brown texted A.B., then 15 years old. A day later, he picked

her up at a church near her home, he bought some alcohol, and they went to the

Dunes Motel in Bremerton to spend the night. They had sexual intercourse. Later,

A.B. told Brown that she was pregnant, and Brown told her not to call him.

       On March 20, 2012, A.B.'s parents and step-parents went to Brown's house to

confront him.     A.B.'s mother asked Brown if he knew A.B.'s age, and Brown

confirmed he did, saying that she was "[f]ifteen." During this conversation, an officer

from the Bremerton Police Department, responding to a dispatch call, arrived at

Brown's home. The officer confirmed Brown's identity by examining a Washington

State identification card. The officer did not arrest Brown but gave the parties a case

number and told them that a detective would communicate with them at a later time.

       Brown accompanied A.B. and her parents to A.B.'s doctor's appointment that

day. At the appointment, Brown acknowledged his paternity. Brown and A.B. did not

speak after the appointment.

       The State first charged Brown with one count of third degree rape of a child in

May 2012. The trial court continued the case, and then the State dismissed the case

without prejudice on August 7, 2012, the trial date.

       On November 17, 2012, A.B. gave birth.            A detective then collected

deoxyribonucleic acid (DNA) specimens from A.B., her child, and Brown. DNA test

results received on April 10, 2013, confirmed Brown's paternity by a probability of

99.99 percent.
No. 72761-3-1/3



        On May 2, 2013, by first amended information, the State charged Brown with

two counts of third degree rape of a child resulting in pregnancy.         Brown filed a

motion to dismiss for a speedy trial violation based on the previous case against

Brown. The motion also requested that the court set trial within the 60-day limit for

speedy trial on the current charges. The court denied the motion to dismiss and set

Brown's trial date for May 28, 2013, to comply with the current request for speedy

trial. The State filed a second amended information on May 28.

        At trial, the court admitted as evidence photographs of A.B. and her child

offered by the State.    A jury found Brown guilty, finding also that the crime had

caused A.B.'s pregnancy. The trial court sentenced Brown to two concurrent 50-

month prison sentences.

        After the trial, the prosecutor spoke with the jurors. The prosecutor filed an

advisory memorandum revealing that the jurors failed to review the admitted

photographs.

        According to the declaration of the bailiff, a juror had asked her during trial if

the jury would get to see the photographs presented. The bailiff responded that the

jurors would see all admitted evidence but she did not know if the trial court had

admitted the photographs. Before the jury deliberated, the bailiff carried the evidence

in a bag to the jury room, told the jurors that bag contained the exhibits, and left the

room.



        After the verdict, according to the prosecutor's advisory memorandum, the

jurors told the prosecutor that they failed to review the photographs because the

bailiff told them that they could not do so. The prosecutor immediately questioned
No. 72761-3-1/4


the bailiff, and the bailiff responded that she thought the trial court had not admitted

the photographs.

       Brown filed a motion for a new trial on the grounds that the bailiff's comments

prevented the jury from considering all evidence at trial. The trial court denied

Brown's motion, finding error but concluding that error was harmless because the

bailiff made the statement before parties rested their case and the jury had access to

the exhibits.

       Brown appeals.

                                      ANALYSIS


       We review a trial court's denial of a motion for new trial for abuse of

discretion.1 We reverse a trial court's exercise of discretion only if it "'is manifestly

unreasonable or based upon untenable grounds or reasons.'"2

       Brown argues that the trial court "abused its discretion by denying Brown's

motion for a new trial because the jury did not properly consider all the admitted

evidence in reaching a verdict" when the jury understood the bailiff's instruction to

mean it could not review the photographs of A.B. and her daughter.            The State

concedes the impropriety of the bailiff's communications, but contends that they did

not prejudice Brown and thus constituted harmless error.

       The United States and Washington Constitutions each guarantee a defendant

the right to a fair and impartial jury trial.3 Neither a trial court nor a bailiff may




      1 State v. Copeland, 130 Wn.2d 244, 294, 922 P.2d 1304 (1996).
      2 State v. Magers, 164Wn.2d 174, 181, 189P.3d 126 (2008) (quoting State v.
Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995)).
      3 U.S. Const, amend. VI; Wash. Const, art. I, §§ 3, 22.
No. 72761-3-1/5


communicate with the jury about a case in the absence of the defendant.4 A trial

court should promptly disclose any ex-parte communication to the parties and

determine if the communication requires a new trial.5 An improper communication is

an error of constitutional dimensions, but may constitute harmless error if

inconsequential.6 Where a defendant contends that an improper communication

prejudiced him, the State must prove beyond a reasonable doubt that either no error

occurred or that any error was harmless.7 To evaluate the impact a comment had on

a jury, we look not to what a bailiff said, but what the jurors heard.8

       Brown relies on State v. Moore to show that the bailiff's communication in this

case constituted reversible error.9 In Moore, the court admitted as evidence and sent

to the deliberating jury both a right shoe and a photograph of a shoe imprint labeled

as a left shoeprint.10 Jurors reported in affidavits that when a juror asked the bailiff

for the left shoe, the bailiff told the jury that a left shoe was unavailable because it

had been returned to City Hall and that the judge said to disregard the writing on the

photographs.11 During their deliberations, the jurors examined the right shoe and the

photograph of the shoe imprint carefully.12 The court found that regardless of the

truth of the bailiff's statement, the communications constituted serious error and




       4 RCW 4.44.300; State v. Bourgeois, 133 Wn.2d 389, 407, 945 P.2d 1120
(1997).
       5 Bourgeois, 133 Wn.2d at 407 (guoting Rushen v. Spain, 464 U.S. 114, 119,
104 S. Ct. 453, 78 L. Ed. 2d 267 (1983)).
       6 Bourgeois, 133 Wn.2d at 407.
       7 State v. Caliguri, 99 Wn.2d 501, 509, 664 P.2d 466 (1983).
       8 O'Brien v. City of Seattle. 52 Wn.2d 543, 548, 327 P.2d 433 (1958).
       9 State v. Moore, 38 Wn.2d 118, 228 P.2d 137 (1951).
       10 Moore, 38 Wn.2d at 120, 124.
       11 Moore, 38 Wn.2d at 122-23.
       12 Moore, 38 Wn.2d at 122-23.
No. 72761-3-1/6


required a new trial.13 The court's opinion does not reflect that the State made any
claim that the error did not prejudice Moore.

       In contrast, here, the State contends that the bailiff's comments did not

prejudice Brown because the photographs contained no exculpatory content. The

State asserts that they amounted to cumulative evidence showing that A.B. became

pregnant and gave birth to a child. Brown did not contest either event. Brown's trial

counsel did not reference the photographs in closing argument. Brown's appellate

counsel suggests no way that the jury's failure to view the photographs could

possibly have prejudiced Brown. Unlike Moore, the bailiff's comment in this case did

not cause jurors to view possibly exculpatory evidence in a manner prejudicial to the

defendant.    Moreover, the State presented testimony that A.B. had engaged in

sexual intercourse with Brown when she was 14 and 15 years old and that she

became pregnant with and gave birth to their child.         The record includes ample

evidence that supported each element of the crime of rape of a child14 and the

aggravating circumstance that the offense resulted in A.B.'s pregnancy.15 The State

proved beyond a reasonable doubt that the bailiffs error could not have prejudiced

Brown. Because the bailiff's error was thus harmless, the trial court did not abuse its

discretion when it denied Brown's motion for a new trial.

       We have reviewed Brown's statement of additional grounds.              He asserts

violations of his right to due process, right to a speedy trial, protection against double


       13 Moore, 38 Wn.2d at 127.
       14 RCW 9A.44.079(1) provides: "A person is guilty of rape of a child in the third
degree when the person has sexual intercourse with another who is at least fourteen
years old but less than sixteen years old and not married to the perpetrator and the
perpetrator is at least forty-eight months older than the victim."
       15 See RCW 9.94A.535(3)(i).
No. 72761-3-1/7


jeopardy stemming from the dismissal and subsequent refiling of his case, and his

right to effective assistance of counsel. He also alleges prosecutorial misconduct.

We do not have a sufficient record from Brown's first case to consider his speedy trial

claim. Each of his remaining claims lacks merit.

                                    CONCLUSION

         Because the State has demonstrated beyond a reasonable doubt that the

bailiff's improper statements did not prejudice Brown, we have an insufficient record

to consider Brown's speedy trial claim, and the other claims asserted in Brown's

statement of additional grounds lack merit, we affirm.




                                                          ^_

WE CONCUR:
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