          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


In the Matter of the Detention of             )         No. 73727-9-1
                                              )
PATRICK EVERETT MCGAFFEE,                     )
                                              )
                      Appellant,              )
                                              )        DIVISION ONE
                       v.                     )
                                              )
THE STATE OF WASHINGTON,                      )        UNPUBLISHED OPINION
                                              )
                       Respondent.            )        FILED: August 14, 2017
                                              )

       MANN, J. — Patrick McGaffee appeals his continued civil commitment as a

sexually violent predator following a jury verdict in an unconditional discharge trial.

McGaffee argues that the trial court erred (1) under Frve,1 by admitting testimony based

on the Structured Risk Assessment-Forensic Version (SRA-FV)tool,(2) by allowing

testimony of McGaffee's ranking to reoffend as against other sexual offenders,(3) by

limiting McGaffee's criticism of one of the risk assessment tests used by the State, and

(4) by refusing to ask one of the jury's questions. McGaffee also asserts the State

committed prosecutorial misconduct during closing argument.

       Finding no error or misconduct, we affirm.


       1 Frye v. United States, 293 F. 1013(D.C. Cir. 1923).
No. 73727-9-1/2


                                         FACTS

      As a young adult, Patrick McGaffee repeatedly offended against prepubescent

boys. In 1992, McGaffee pleaded guilty to residential burglary and attempted second

degree rape of a 15-year-old boy after he broke into the boy's home with the intent of

raping him. At the conclusion of McGaffee's sentence, the State petitioned for

continued civil commitment under the Sexually Violent Predator Act(SVPA), ch. 71.09

RCW. In 1998, McGaffee was committed and has since resided in total confinement at

the Special Commitment Center(SCC).

      In 2013, McGaffee petitioned for, and was granted, an unconditional release trial

pursuant to RCW 71.09.090. McGaffee moved pretrial to exclude testimony from the

State's expert witness regarding the use of the SRA-FV tool. The trial court conducted

a multi-day Frye, hearing and heard testimony from the State's expert, Amy Phenix,

Ph.D, and McGaffee's experts, Howard Barbaree, Ph.D, and Brian Abbott, Ph.D. At the

conclusion of the Frye hearing, the trial court denied McGaffee's motion and concluded

that the testimony concerning the use of the SRA-FV as a measure for risk assessment

was admissible.

       Clinical psychologist, Harry Goldberg, Ph.D, testified for the State. Dr. Goldberg

diagnosed McGaffee with pedophilic disorder and fetishistic disorder and concluded

those disorders amounted to a mental abnormality. Dr. Goldberg opined that

McGaffee's mental abnormality causes him serious difficulty controlling his sexually

violent behavior.

       Dr. Goldberg then assessed McGaffee's risk of reoffending using a method

known as structured clinical judgment. He used a series of actuarial tools, including the

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No. 73727-9-1/3


Static-99R, Static 2002R, and Violence Risk Appraised Guide-Revised (VRAG-R)tools

to consider "static"(or unchanging) risk factors. He also used the SRA-FV and STABLE

2007 tools to assess "dynamic" risk factors (also knowns as psychological

vulnerabilities). Dr. Goldberg also considered protective factors and case-specific

factors. Dr. Goldberg concluded that McGaffee's mental abnormality makes him more

likely than not to commit predatory acts of sexual violence if not confined in a secure

facility.

        Clinical psychologist, Brian Abbott, Ph.D., testified for McGaffee. Dr. Abbott

testified that McGaffee does not have a qualifying mental disorder and that McGaffee's

risk "falls below the [statutory] threshold of more likely than not." As a result, Dr. Abbott

did not assess McGaffee's risk of reoffending. Dr. Abbott criticized Dr. Goldberg's

methodology including his use of the VRAG-R and the SRA-FV actuarial tools.

        The jury returned a verdict finding McGaffee continues to be a sexually violent

predator. The trial court ordered continued commitment at the SCC. McGaffee

appeals.

                                         ANALYSIS

        Once an individual has been involuntarily committed under the SVPA,they have

the right, on an annual basis, to petition for conditional release to a less restrictive

alternative or for unconditional discharge. RCW 71.09.090(2). If the issue is whether

the individual should be unconditionally discharged, the State bears the burden of

proving, beyond a reasonable doubt, that the person continues to meet the definition of

a sexually violent predator. RCW 71.09.090(3)(c); RCW 71.09.060(1); In re Det. of

Post, 170 Wn.2d 302, 309, 241 P.3d 1234 (2010).

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No. 73727-9-1/4


       A "sexually violent predator" is defined as any person who has been convicted of

or charged with a crime of sexual violence and who suffers from a mental abnormality or

personality disorder that makes the person "likely to engage in predatory acts of sexual

violence if not confined in a secure facility." RCW 71.09.020(18). "Likely to engage in

predatory acts of sexual violence if not confined in a secure facility" means the person

"more probably than not will engage in such acts if released unconditionally from

detention on the sexually violent predator petition." RCW 71.09.020(7). This is often

referred to as the "more likely than not" standard. See In re Det. of Moore, 167 Wn.2d

113, 119, 216 P.3d 1015 (2009). "The fact to be determined is not whether the

defendant will reoffend, but whether the probability of the defendant's reoffending

exceeds 50 percent." In re Detention of Brooks, 145 Wn.2d 275, 298, 36 P.3d 1034

(2001), overruled on other grounds by In re Det. of Thorell, 149 Wn.2d 724, 753, 72

P.3d 708 (2003).

                                     Frye Challenge

       McGaffee argues first that the trial court erred by allowing Dr. Goldberg to testify

based on the SRA-FV tool, because it is a novel risk assessment tool that does not

meet the test in Frye v United States, 293 F. 1013, 1014 (D.C. Cir. 1923). We disagree.

       Washington courts follow the Frye test in determining the admissibility of novel

scientific evidence. State v. Copeland, 130 Wn.2d 244, 255-56, 922 P.2d 1304 (1996).

Testimony is admissible under Frye where "(1) the scientific theory or principle upon

which the evidence is based has gained general acceptance in the relevant scientific

community of which it is part; and (2)there are generally accepted methods of applying

the theory or principle in a manner capable of producing reliable results." Lake Chelan

                                          -4-
No. 73727-9-1/5


Shores Homeowners Ass'n v. St. Paul Fire & Marine Ins. Co., 176 Wn. App. 168, 175,

313 P.3d 280 (2013).

       The admissibility of evidence under Frye is a mixed question of law and fact that

we review de novo. In re Det. of Pettis, 188 Wn. App. 198, 204, 352 P.3d 841 (2015).

"We undertake 'a searching review which may extend beyond the record and involve

consideration of scientific literature as well as secondary legal authority." Pettis, 188

Wn. App. at 204-05 (quoting Copeland, 130 Wn.2d at 255-56). "We may consider

materials that were unavailable until after the Frye hearing." Pettis, 188 Wn. App. at

205.

       Since McGaffee's trial concluded, Division Two and Division Three of this court

have reviewed and found the use of the SRA-FV tool has gained general acceptance in

the scientific community, and that there are generally accepted methods of applying the

test in a manner capable of producing reliable results. Both courts concluded that use

of the SRA-FV test is admissible under Frye. Pettis, 188 Wn. App. at 209-10, 211; In re

Det. of Ritter, 192 Wn. App. 493, 499, 372 P.3d 122(2016), as amended (Apr. 12,

2016), review denied, 185 Wn.2d 1039 (2016). While McGaffee attempts to circumvent

these decisions by arguing that the SRA-FV was applied differently in this case, his

argument is unavailing.

       Both Pettis and Ritter involved the use of the SRA-FV tool in conjunction with the

Static-99R tool, in the same way that it was used in this case. Pettis, 188 Wn. App. at

210; Ritter, 192 Wn. App. at 498. Pettis and Ritter also involved several of the same

psychological experts who testified in this case—Dr. Phenix and Dr. Abbott. See Ritter,

192 Wn. App. at 496 (Phenix and Abbot); Pettis, 188 Wn. App. at 202(Phenix). We find

                                           -5-
No. 73727-9-1/6


no reason to diverge from these recent decisions, and concur that the SRA-FV tool is

generally accepted by the scientific community, that there are generally accepted

methods of applying the tool capable of producing reliable results, and that the tool is

admissible under Frye.2

                                         Percentile Ranking

        The State was required to prove McGaffee's mental abnormality makes him more

likely than not to commit predatory acts of sexual violence if not confined in a secure

facility. RCW 71.09.020(18). The SVPA does not, however, require the State to prove

that any individual actuarial tool estimates the risk of reoffending exceeds 50 percent.

In re Meirhofer, 182 Wn. 2d 632,645, 343 P.3d 731 (2015). Indeed, the SVPA "does

not limit experts to the results of actuarial tests." Meirhofer, 182 Wn.2d at 645. When

completing a risk assessment in SVP cases, experts generally use tools that test both

static and dynamic risk factors and consider their own clinical judgment. In re Det. of




        2 McGaffee's brief points to the lack of peer reviewed literature supporting use of the SRA-FV
tool. But as the court discussed in Pettis, this has changed:
        In December 2013, after Pettis's trial, Dr. Thornton published a peer-reviewed article
        describing the SRA-FV. David Thornton & Raymond Knight, Construction and Validation
        of SRA-FV Need Assessment, SEXUAL ABUSE: A JOURNAL OF RESEARCH AND TREATMENT
        XX(X) 1-16 (2013). The SRA-FV has been described favorably in some books:"For non-
        disabled clients, the[SRA-FV](Thornton, 2002). .. enjoy[s] relative degrees of favor,
        depending on the jurisdiction in which each is used." Robin J. Wilson & David S. Prescott,
        Understanding and RESPONDING TO PERSONS WITH SPECIAL NEEDS WHO HAVE SEXUALLY
        OFFENDED, IN RESPONDING TO SEXUAL OFFENDING: PERCEPTIONS, RISK MANAGEMENT AND
        PUBLIC PROTECTION 128, 134 (Kieran McCartan, ed., 2014); see also Alix M. McLearen et
        al., Perpetrators of Sexual Violence: Demographics, Assessments, Interventions, in
        Violent Offenders: Understanding and Assessment 216, 231 (Christina Pietz, et al., eds.,
        2014)(describing the SRA-FV as a "research-guided multistep framework for assessing
        the risk presented by a sex offender and provides a systematic way of going beyond
        static risk classification").

Pettis, 188 Wn. App. at 208-09.



                                                 -6-
No. 73727-9-1/7


Sease, 190 Wn. App. 29, 44, 357 P.3d 1088(2015)(citing Meirhofer, 182 Wn. 2d at

646).

        During his testimony concerning McGaffee's risk of reoffending, Dr. Goldberg

described the results he obtained using several commonly used actuarial tools.

According to the Static-99R test, the most commonly used sex offender risk tool, Dr.

Goldberg explained that the results showed McGaffee had a 30.7 percent chance of

committing an offense over a period of 5 years and a 42.8 percent chance over a period

of 10 years. Dr. Goldberg also explained, that McGaffee scored a seven which placed

him in the high category for sexual reoffense. Goldberg then explained that this score

placed McGaffee in the 94th percentile of other sexual offenders. Goldberg explained

that McGaffee did not have a 94 percent chance of reoffending, "[i]t just means

compared to other sex offenders, he's in the 94th percentile meaning that's where he

falls." Dr. Goldberg again explained his testimony in response to a question from the

jury. The jury asked:"Mr. McGaffee falls into the 94th percentile of sex offender, but it

doesn't mean 94 percent chance of reoffending. What does it mean?" Dr. Goldberg

reiterated that it meant McGaffee is "94 percent of a higher risk than other sex offenders

. . . It doesn't mean he's 94 percent going to reoffend."

        McGaffee argues that this testimony was irrelevant and confused the jury by

conflating the 94th percentile ranking with the absolute risk of reoffense needed under

the statute. McGaffee also argues that the evidence of such a high percentile ranking

was prejudicial and was likely to arouse an emotional response in the jury, rather than

contribute to a rational decision. We disagree.



                                          -7-
No. 73727-9-1/8


       We review the trial court's evidentiary rulings for abuse of discretion. "A court

abuses its discretion when its evidentiary ruling is manifestly unreasonable, or exercised

on untenable grounds, or for untenable reasons." State v. Williams, 137 Wn. App. 736,

743, 154 P.3d 322(2007). Evidence is relevant and admissible if it has any tendency to

make the existence of a fact more or less probable. ER 401. Relevant evidence may

be excluded "if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative evidence." ER 403.

Evidence is unfairly prejudicial if it is more "likely to arouse an emotional response than

a rational decision among the jurors." Carson v. Fine, 123 Wn.2d 206, 223, 867 P.2d

610 (1994). The burden of showing prejudice is on the party seeking to exclude the

evidence. Carson, 123 Wn.2d at 225. The trial court sits in the best position to

determine the prejudicial effect of evidence. State v. Powell, 166 Wn.2d 73, 81, 206

P.3d 321 (2009).

       McGaffee's percentile ranking is certainly relevant. Dr. Goldberg testified that

understanding McGaffee's percentile ranking against other offenders is a starting

point—it informed him that McGaffee has a higher risk of reoffending than most

offenders. Further, instead of just knowing McGaffee had a high risk of offending,

knowing where he ranked against other offenders provided more specific information.

Dr. Goldberg also explained that the percentile ranking is frequently relied upon by

others in his field and that it is "a standard practice." Based on Dr. Goldberg's testimony

and argument, the trial court found the evidence relevant and admissible. We agree.



                                          -8-
No. 73727-9-1/9


       While evidence that McGaffee's risk of reoffending was in the 94th percentile

against other offenders might be prejudicial, it is not so highly prejudicial so as to be

excluded. Evidence is not inadmissible under ER 403 just because it may be

prejudicial, as nearly all evidence will prejudice one side or the other in a lawsuit.

Carson, 123 Wn.2d at 224. As Dr. Goldberg was the State's main expert, most of his

testimony and evidence was bound to be inherently prejudicial. Dr. Goldberg was free

to provide his expert opinion on McGaffee's overall risk of offense and was not limited to

discussing the actuarial instrument used to get the absolute recidivism rates. Dr.

Goldberg repeatedly explained that the percentile was not the same as the absolute risk

of reoffense and testified to two smaller percentages that he specified were indicative of

McGaffee's risk of reoffense. Moreover, the record supports the conclusion that the jury

was rationally considering this evidence for its appropriate purpose, demonstrated by

the clarifying question posed in order to ensure the evidence was properly measured.

       The trial court did not abuse its discretion in allowing the testimony concerning

percentile rankings.

                       Dr. Abbott's Opinion of the VRAG-R Instrument

       The State's expert, Dr. Goldberg, used three different actuarial tools to consider

McGaffee's "static" risk factors for reoffending. McGaffee's expert, Dr. Abbott, held the

opinion that Dr. Goldberg's use of VRAG-R was inappropriate. McGaffee claims that

the trial court limited Dr. Abbot's criticism of the VRAG-R and consequently violated

McGaffee's right to present a defense. McGaffee's argument is without merit.

       While a trial court's decision to admit or exclude evidence is reviewed for abuse

of discretion, a court "necessarily abuses its discretion by denying a criminal

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No. 73727-9-1/10


defendant's constitutional right." State v. Strizheus, 163 Wn. App. 820, 829, 262 P.3d

100(2011)(internal quotations omitted). A criminal defendant has a right under the

Sixth Amendment of the United States Constitution and article!, section 22(amendment

10) of the Washington Constitution to present a defense. Strizheus, 163 Wn. App. at

829-30. However, the right to present a defense is not absolute and does not turn every

trial court decision excluding evidence into an error of constitutional magnitude. "The

right to present a defense does not extend to irrelevant or inadmissible evidence."

Strizheus, 163 Wn. App. at 830.

       During his testimony, Dr. Abbott was asked whether he believed the VRAG-R

instrument should be used in forensic applications. The State objected, and after

argument outside the presence of the jury, the trial court ruled that Dr. Abbott could

testify as to why he did not personally use the VRAG-R but could not opine whether the

tool should be used.

       Despite the court's ruling, Dr. Abbott testified that the VRAG-R was unreliable in

part because it had not been cross-validated on other populations, and the

developmental sample was not representative of the group of offenders to whom

McGaffee belongs. Dr. Abbott also testified that any cross-validation of the VRAG-R

would likely show reduced predictive validity. The only objection the trial court

sustained during this line of questioning, was an objection to Dr. Abbott predicting how

future cross-validations would turn out, stating "you can't predict the future." Dr. Abbott,

however, was then able to continue discussing the possibility of "shrinkage" and

diminished accuracy in cross-validation.



                                           -10-
No. 73727-9-1/11


       The trial court's statement that the objection was sustained because "you cannot

predict the future," indicates it was excluded because it was speculative. "'It is well

established that conclusory or speculative expert opinions lacking an adequate

foundation will not be admitted." Miller v. Likins, 109 Wn. App. 140, 148, 34 P.3d 835

(2001)(quoting Safeco Ins. Co. v. McGrath,63 Wn. App. 170, 177, 817, P.2d 861

(1991)). "In addition, when ruling on somewhat speculative testimony, the court should

keep in mind the danger that the jury may be overly impressed with a witness

possessing the aura of an expert." Miller, 109 Wn. App. at 148 (quoting Davidson v.

Municipality of Metro. Seattle, 43 Wn. App. 569, 571-72, 719 P.2d 569 (1986)). Dr.

Abbott's claims that future cross-validations would most likely show diminished

accuracy was clearly speculative, as it assumes an outcome that cannot be verified.

       McGaffee was not prevented from presenting a defense and the trial court did not

abuse its discretion in limiting Dr. Abbot's speculative testimony.

                               Jury Question for Dr. Abbott

       Dr. Abbott testified that McGaffee did not suffer from a mental abnormality.

Because Dr. Abbott did not believe McGaffee had a mental abnormality, he did not

address whether McGaffee had difficulty in controlling sexually violent behavior. Dr.

Abbott also did not "specifically" address whether McGaffee was more likely than not to

engage in predatory acts of sexual violence; he only conducted a risk assessment to

contrast Dr. Goldberg's assessment. Dr. Abbott did not testify to which instruments or

methods he relied upon in reaching his criticism of Dr. Goldberg's opinion. At the

conclusion of Dr. Abbott's testimony, the jury submitted the following question:"You

testified you completed a risk assessment to compare with Dr. Goldberg's. What

                                          -11-
No. 73727-9-1/12


instruments did you use and what were the scores?" On its own motion, the trial court

refused to ask the question. McGaffee now argues the trial court erred. We disagree.

        In civil cases, including SVP trials, jurors are permitted to submit questions for

the court to ask witnesses during the witness's testimony. CR 43(k); In re Det. Of

Greenwood, 130 Wn. App. 277, 286-87, 122 P.3d 747(2005). The court may rephrase

or reword the question. On its own motion, the court may also refuse to allow a

particular question from a juror to a witness. CR 43(k). We review the trial court's

decision for abuse of discretion. See e.g., Jarrad v. Seifert, 22 Wn. App. 476, 478, 591

P.2d 809 (1979).3

        Prior to deciding whether to ask the jury's question, the trial court heard

argument outside of the presence of the jury. The State argued the question was

outside the scope of the testimony because Dr. Abbott had not testified to conducting a

risk assessment or what instruments he had used. McGaffee's counsel agreed that the

question was outside the scope of direct and redirect examination but did not take a

position "as to whether that's a proper reason to exclude." McGaffee did not argue that

he wanted the question asked, or state that the question was necessary.

        The trial court agreed that the question was outside the scope because "It

appears that this question was never asked by the respondent." The trial court further

opined that the question would require spending substantial time going into a topic

McGaffee had chosen not to raise, which might interfere with respondent's strategic

reasoning for not going into the topic. In the end the trial court ruled, "I am using my


         3"The trial court has broad discretion in propounding questions to witnesses in order that it may
gain all the information possible to aid in correctly determining the disputed questions presented by the
respective parties." Jarrad, 22 Wn. App. at 478.
                                                 -12-
No. 73727-9-1/13


authority under CR 43(k) and I am refusing on my own motion, with not really any

objections from either of you, to ask this particular question." McGaffee then objected

for the record.

       McGaffee argues that the trial court's decision to withhold this question barred

him from being able to present a defense. We disagree. The jury submitted this

question after Dr. Abbott had testified for two days. McGaffee chose not to ask Dr.

Abbott about, or have Dr. Abbott discuss, the assessment he had used. Thus, the

question was undoubtedly outside the scope of the testimony. McGaffee did not argue

that the question was necessary to their case or even meaningfully argue that the

question should be allowed. The trial court then agreed, without any argument to the

contrary. The trial court did not abuse its discretion on refusing to ask the question.

                                 Prosecutorial Misconduct

       McGaffee next argues that the State committed prosecutorial misconduct during

closing arguments. We disagree.

        In determining whether prosecutorial misconduct has occurred, we first look at

whether the defendant objected to the alleged misconduct. State v. Magers, 164 Wn.2d

174, 191, 189 P.3d 126 (2008). "If the defendant objected, we evaluate (1) whether the

prosecutor's comments were improper and (2) whether a substantial likelihood exists

that the improper comments affected the jury's verdict." Magers, 164 Wn.2d at 174.

The defendant bears the burden of showing both prongs of prosecutorial misconduct.

Magers, 164 Wn.2d at 191 (citing State v. Hughes, 118 Wn. App. 713, 727,77 P.3d 681

(2003)). If the appellant failed to object to the improper remark at the trial court, they

waived the error "unless the remark is so flagrant and ill intentioned that it causes an

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No. 73727-9-1/14


enduring and resulting prejudice that could not have been neutralized by an admonition

to the jury." State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747(1994)).

       In closing argument, a prosecutor has wide latitude to draw reasonable

inferences from the evidence and to express such inferences to the jury. Magers, 164

Wn.2d at 192. A prosecutor's remarks should be viewed in "context of the total

argument, the issues in the case, the evidence addressed in the argument, and the

instructions given to the jury." Maqers, 164 Wn.2d at 192 (quoting State v. Brown, 132

Wn.2d 529, 563, 940 P.2d 546 (1997)).

       McGaffee assigns error to four comments made during the State's closing

argument. We address each in turn.

A.     Comments without objections

       Three of the four statements McGaffee complains of must be analyzed under the

"enduring and resulting prejudice" standard. "Failure to request a curative instruction or

move for a mistrial 'strongly suggests to a court that the argument or event in question

did not appear critically prejudicial to an appellant in the context of the trial." In re Det.

of Law, 146 Wn. App. 28, 51, 204 P.3d 230(2008)(quoting State v. Swan, 114 Wn.2d

613,661, 790 P.2d 610 (1990)).

       First, McGaffee claims that the State committed misconduct by suggesting that

the jurors could rely on their subjective beliefs, when the State said,

       'More likely than not' is defined as 50 percent, greater than 50 percent, in
       your instruction. That means that based on the evidence, you believe
       there's at least 50 percent plus something that he will reoffend; that does
       not mean that the actuarial percentage has to be above 50 percent.




                                            -14-
No. 73727-9-1/15


This statement is not error because it is a correct statement of the standard and the law.

The statement clearly limited the juror's decision to being "based on the evidence," and

was not arguing that the jury could use their "subjective belief' as McGaffee suggests.

       Second, McGaffee argues the State misstated the burden of proof by saying,

       Actuarials cannot predict the future. We don't have a crystal ball. We
       don't know whether or not he will reoffend or won't reoffend. That's not
       what you're being asked. You're being asked to see whether or not it's
       likely.

This statement is also an accurate statement of the standard and the evidence. The

State was simply admitting the limitations of the actuarial tools relied on by the experts.

Although the statement that the jurors are "being asked to see whether or not it's likely"

could have drawn an objection requiring that the State clarify that it must be "more likely

than not," this error was not "enduring" as the correct legal standard was repeatedly

provided.

       Finally, McGaffee argues the State committed misconduct by arguing the

absence of evidence of a current pedophilic disorder did not mean it was not there.

Using a vacuum analogy, the State said,

       So say a vacuum.. . a vacuum is like the absence of air. It's that sucking
       that happens. You can't see it, you can't observe the vacuum. That
       doesn't mean it's not there. Right?
               How do we know that it's there? You look at the evidence around
       the vacuum. You look at what's going on around it, that things are being
       pulled into it. Right? So you can see what's happening to the feather
       when you hold it up next to the vacuum, and that's how you know there's a
       vacuum.
               Similarly, you can look at Mr. McGaffee, and in the absence of
       direct, Mr. McGaffee on the stand saying I continue to be a pedophile, I
       continue to suffer from pedophilic disorder, you can look at the evidence
       around it to determine whether the condition still exists.



                                          -15-
No. 73727-9-1/16


Considering the State's analogy in the "context of the total argument," as is required,

this statement was not a claim that the jury need not rely on the evidence. The

statement was a description of the state of the evidence and an argument that the jury

may use circumstantial evidence in the absence of direct evidence. This argument was

not misconduct, and, though awkward, was not so "flagrant and ill intentioned" that it

caused "an enduring and resulting prejudice that could not have been neutralized by an

admonition to the jury." Russell, 125 Wn.2d at 86.

B.    Comment with obiection

       McGaffee did object and request a mistrial during closing argument after the

State used a "soup" analogy to describe the evidence that was presented at trial.

Because McGaffee did object, the first question is whether the State's comments were

improper. Maoers, 164 Wn.2d at 174.

      During closing argument, the State offered a PowerPoint slide presentation that

showed Dr. Goldberg's name, a bowl of soup, and the word "risk assessment" with

arrows pointing toward it showing the different measures Dr. Goldberg used to reach his

"risk assessment." The next slide showed Dr. Abbott's name,then the word "risk

assessment" with no arrows demonstrating he had not provided any testimony to

explain his assessment. While the slide was before the jury, the State argued,

             So if we were to go back and look at the risk assessment, if you
      only have the actuarial tools, you don't have a risk assessment, you don't
      have soup. If you don't have dynamic risk factors, or you just have case-
      specific factors, and protective factors, you don't have a risk assessment.
      The soup has to be completed, and Dr. Goldberg completed the risk
      assessment. Dr. Abbott, this is his risk assessment.

McGaffee objected and the trial court overruled the objection. The State continued,


                                         -16-
No. 73727-9-1/17


       Dr. Abbott took the stand and he told you that Mr. McGaffee is not likely to
       reoffend, not -- sorry, is not more likely than not to reoffend, but he did not
       support his conclusion. [Dr. Abbott] criticized the use of the VRAG, he
       talked a little bit about the use of the percentile rankings, but he did not
       support his conclusion. Dr. Goldberg is the only one that did.

McGaffee moved for a mistrial. The trial court denied the motion.

       McGaffee argues first that the "soup analogy" improperly trivialized a critical legal

standard to everyday decision making. Washington courts have found prosecutorial

misconduct when a prosecutor "compares the reasonable doubt standard to everyday

decision making" because "it improperly minimizes and trivializes the gravity of the

standard and the jury's role." State v. Lindsay, 180 Wn.2d 423, 436, 326 P.3d 125

(2014). This rule does not apply here. The State was using the "soup" analogy to

describe the evidence, not to explain reasonable doubt, and is thus not relevant under

this line of cases.

       McGaffee next argues that the argument was misconduct because it improperly

transferred the burden onto McGaffee to prove that he was not likely to reoffend,

instead of on the State to prove that he was likely to offend. McGaffee argues,"[t]he

respondent has no burden to demonstrate that he is safe to be at large. The

respondent has the right to expert assistance, but no obligation to present any

evidence, and certainly no obligation to develop risk assessment testimony." McGaffee

maintains that this error was "particularly egregious" because the State was arguing that

"McGaffee should be faulted for not presenting evidence the prosecutor knew to have

been earlier excluded by judicial order," citing to State v. Kassahun, 78 Wn. App. 938,

952, 900 P.2d 1109(1995).



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      "Arguments by the prosecution that shift the burden of proof onto the defense

constitute misconduct." State v. Thorgerson, 172 Wn.2d 438, 466-67, 258 P.3d 43

(2011). "A prosecutor generally cannot comment on the lack of defense evidence

because the defense has no duty to present evidence." Thorgerson, 172 Wn.2d at 466-

67; State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003). But, in closing

argument, a prosecutor has wide latitude to draw reasonable inferences from the

evidence and to express such inferences to the jury. Magers, 164 Wn.2d 174 at 192.

"An argument about the amount or quality of evidence presented by the defense does

not necessarily suggest that the burden of proof rests with the defense." Thorgerson,

172 Wn.2d at 466-67 (quoting State v. Gregory, 158 Wn.2d 759, 760, 147 P.3d 1201

(2006)).

       Here, the State's argument was not a comment on the amount and quality of the

evidence presented by the defense, and did not improperly shift the burden of proof

onto the defense. The mere mention that defense evidence is lacking does not

constitute prosecutorial misconduct or shift the burden of proof to the defense. State v.

Jackson, 150 Wn. App. 877, 885-86, 209 P.3d 553(2009). The State clearly explained

to the jury that the State had the burden of proof. The State also explained that the jury

was the sole judge of credibility and outlined numerous reasons why it should find the

State's witnesses more credible than McGaffee's witness. The prosecutor did not argue

that the jury should find McGaffee guilty because he did not present a risk assessment.

The State's argument was that McGaffee's witness, who attacked the risk assessments

used by the State, admitted to doing one himself, then did not present such an



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assessment, was less credible than the State's witnesses. See Jackson, 150 Wn. App.

at 886. This was also not misconduct.

        Finally, McGaffee argues that the State committed misconduct by benefitting

from McGaffee's failure to present a risk assessment after they specifically objected to

the trial court admitting the jury question that would have asked Dr. Abbott to discuss

the risk assessments he relied on. McGaffee bases this argument on the ruling in

Kassahun, in which the State kept the defendant from discovering evidence, and then

used the defendant's inability to present that evidence against him in closing argument.

Kassahun, 78 Wn. App. at 952.

        The facts in this case are readily distinguishable from Kassahun. Here, unlike in

Kassahun, the State did not prevent McGaffee from asking Dr. Abbott to list the

methods he relied on in reaching his conclusion during the two days in which Dr. Abbott

testified. Moreover, McGaffee did nothing to induce the court to allow the jury

instruction to be presented to Dr. Abbott. While the State's actions were underhanded,

given that they said the question of what instrument Dr. Abbott used was "not needed"

and then argued in closing that he was less credible due to not providing such

instruments,4 the State did not keep McGaffee from presenting the evidence of Dr.

Abbott's risk assessment.

        The State did not commit prosecutorial misconduct.




         4 "I'm sure we can do it, it will be fairly time consuming, and ultimately I don't know that it would
be that illuminating to the jury given that Dr. Abbott's testimony was that Mr. McGaffee is under 50
percent in his assessment. So we're not going to get any new information out of it, other than the fact
that he used an instrument, and what that instrument's score was. So the answer is not needed. The
evidence that Dr. Abbott has is in."
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No. 73727-9-1/20


                                    Cumulative Error

      The cumulative error doctrine applies only when several trial errors occurred

which, standing alone, may not be sufficient to justify a reversal, but when combined

together, may deny a defendant a fair trial. State v. Hodaes, 118 Wn. App. 668, 673-74,

77 P.3d 375(2003). Because McGaffee has identified no errors, the cumulative error

doctrine does not apply.

      We affirm.




WE CONCUR:



                        1




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