        FILE
        l~l CLERKS OFFICE
8UPREM:: L ~ Jf{T, STATE OF WASHINCJTON



~201~
       IN THE SUPREME COURT OF THE STATE OF WASHINGTON


  STATE OF WASHINGTON,                           )
                                                 )
                         Respondent,             )                     No. 87929-0
                                                 )
          v.                                     )                       En Bane
                                                 )
  TIMOTHY DYE,                                   )
                                                 )           Filed         -SEP 2 6 2013
                          Petitioner.            )
                                                 )




               WIGGINS, J.-This case requires us to determine whether a court may

  allow a witness to be accompanied by a comfort animal, here a dog, when

  testifying during trial. Generally, we give trial courts wide discretion to control trial

  proceedings, including the manner in which testimony will be presented. We

  recognize that some trial procedures, such as providing a child witness with a toy

  on the stand or shackling a defendant at trial, may risk coloring the perceptions of

  the jury. But trial courts are capable of addressing these risks. Here, the trial court

  acted within its broad discretion when it determined that Ellie, the facility dog

  provided by the prosecutor's office to the victim Douglas Lare, was needed in light

  of Lare's severe developmental disabilities in order for Lare to testify adequately.

  We affirm the Court of Appeals.
No. 87929-0


                                         FACTS

    I.   Background

         Douglas Lare suffers from significant developmental disabilities, including

cerebral palsy, Kallman Syndrome, and mild mental retardation. He has an IQ of 65

and, although he is 56 years old, he functions at a mental age ranging from 6 to 12
            1
years old. While he lives independently and has been working for the Veteran's

Hospital for 23 years, Lare has difficulty with daily household activities, reading,

and writing, and he uses a payee service to handle his finances.

         In 2005, Lare became romantically involved with his neighbor Alesha Lair. 2

Alesha was also dating the defendant, Timothy Dye, a fact that she did not reveal

to Lare. In 2007, Alesha moved into Lare's apartment, along with Alesha's sister,

her mother, and her mother's boyfriend. Alesha opened several credit cards in

Lare's name and charged them to their limits, using them to buy herself and her

family clothing, shoes, computers, beer, cigarettes, a DVD (digital video disk)

player, and cell phones. Alesha also withdrew money from Lare's retirement

account.

         When Alesha and her family moved out of Lare's apartment, Alesha used

Lare's money to furnish her new apartment, and Dye moved in with Alesha. Alesha

took a key to Lare's apartment with her. In total, Alesha borrowed approximately



1
 The defense characterizes Lare's mental age as between two and a half years and eight
and a half years.
2
 Because of the similarity of Lair and Lare's names, Alesha Lair is hereinafter referred to
by her first name. No disrespect is intended.



                                             2
No. 87929-0


$42,000 against the credit cards in Lare's name and withdrew $59,000 from Lare's

retirement account. 3

       On January 19, 2008, Lare called 911 to report a DVD player and DVD

missing. On January 24, Lare woke up to find Dye rummaging through his

apartment. Dye asked Lare if he could take a DVD player and VCR (videocassette

recorder), but Lare refused. Dye nonetheless took some DVDs and a shelving unit.

The following day, Lare came home from work to find his front door propped open.

His television, VCR, DVD player, microwave, and a collectible knife were missing.

In a telephone interview with a police detective, Dye admitted that he had pawned

Lare's DVD player but claimed that Lare had voluntarily offered it to him. After the

detective stopped the recording, Dye told her that "he didn't have anything to worry

about because his name wasn't on any of the pawn slips and so there was no way

to pin it on him." Report of Proceedings (RP) (Dec. 6, 201 0) at 6.

       After the burglaries, Lare became very fearful. He installed three locks on his

front door and began sleeping with mace, a frying pan, and two knives in his

bedroom for protection.

 II.   Trial and Appellate Proceedings

       The State charged Dye with residential burglary in connection with the

January 24 incident, alleging as an aggravator that Lare was a vulnerable victim.




3
  Alesha later pleaded guilty to theft in the first degree with the aggravating circumstance
that Lare was a particularly vulnerable victim. Alesha's guilt is not at issue in this case and
is not further discussed.



                                              3
No. 87929-0


       During Lare's defense interview, he was accompanied by a facility dog, 4

Ellie. Ellie is a golden retriever used by the King County Prosecuting Attorney's

Office to comfort children who are giving statements and testimony. Ellie was

trained by, and lives with, the prosecutor at Dye's trial.

       Lare then requested Ellie's presence during his testimony at trial. The State

moved to allow Ellie to accompany Lare during his testimony, arguing that Lare

needed Ellie's assistance because of his "significant anxiety regarding his

upcoming testimony" and because he "functions at the level of a child and is fearful

of the defendant." Clerk's Papers (CP) at 104. The State further added during a

pretrial hearing that Lare was a "complete dog fan" and that Ellie had provided Lare

"tremendous comfort" during the previous interview. RP (Nov. 18, 201 0) at 28.

       Dye's counsel said that she did not object to Ellie's presence "if [Dye] gets to

hold his baby while he is testifying," arguing that "the prejudice is extreme, allowing

the alleged victim in this case to pet the dog." /d. The trial court disagreed, noting

that Lare was a "developmentally disabled individual who has . . . significant

emotional trauma." /d. at 29. The court found that Ellie would be

       very unobtrusive, will just simply be next to the individual, not be
       laying [sic] in his lap, and if we can accommodate somebody who has
       a developmental disability when they're testifying in the courtroom I
       think it's appropriate to do so.



4
   The defense characterizes Ellie as a "comfort dog," Pet'r's Suppl. Br. at 1, a "therapy
dog[]," Pet. for Review at 8, or a "support dog," Br. of Amicus Curiae Wash. Defender
Ass'n & The Defender Ass'n at 1. However, the Court of Appeals adopted the term
"'facility dog,"' State v. Dye, 170 Wn. App. 340, 343 n.5, 283 P.3d 1130 (2012), and we do
the same.



                                            4
No. 87929-0


/d. The court then suggested that if Dye had a similar disability, the court might be

receptive to allowing Dye to hold his baby on the stand.

      Dye's counsel also argued that Ellie's presence might inflame Dye's allergies

or distract the jury. The court offered to accommodate Dye's allergies so long as he

could provide medical documentation of them. There is no indication in the record

that Dye did so.

      At trial, Ellie sat with Lare during his testimony and accompanied him to the

restroom. Lare also fed Ellie treats and used Ellie as a table while reading an

exhibit. Ellie's presence is not otherwise indicated in the record except for her

introduction at the beginning of Lare's testimony:

      Q ..... Who's your friend there with you?

      A This is Ellie.
      Q. And why is Ellie there with you?

      A Ellie is to help me and to make it easier for me. And I have treats
      here.

RP (Dec. 1, 201 0) at 10. At the end of the trial, the court instructed the jury not to

"make any assumptions or draw any conclusions based on the presence of this

service dog." CP at 53.

      The jury convicted Dye of residential burglary but did not find that Lare was a

vulnerable victim. State   v.   Dye, 170 Wn. App. 340, 344, 283 P.3d 1130 (2012). Dye

appealed his conviction and the Court of Appeals affirmed the trial court, holding

that Ellie's presence did not compromise Dye's right of cross-examination, that the

prosecutor did not improperly give Lare a gift, that the trial court properly balanced



                                             5
No. 87929-0


Lare's special needs against the possibility of prejudice, and that there was no

prejudice in the first instance. /d. at 346-48. Dye appealed on the ground that Ellie's

presence violated his right to due process and a fair trial.

                                            ANALYSIS

 I.     Standard of Review

        The trial court is generally in the best position to perceive and structure its

own proceedings. Accordingly, a trial court has broad discretion to make a variety

of trial management decisions, ranging from "the mode and order of interrogating

witnesses and presenting evidence," 5 to the admissibility of evidence, 6 to

provisions for the order and security of the courtroom. 7 In order to effectuate the

trial court's discretion, we grant the trial court broad discretion: even if we disagree

with the trial court, we will not reverse its decision unless that decision is

"manifestly unreasonable or based on untenable grounds or untenable reasons." In

reMarriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997).

            Alleging that a ruling violated the defendant's right to a fair trial does not

change the standard of review. For example, we have reviewed for abuse of

discretion a trial court's ruling requiring the defendant to attend trial in shackles.

State v. Finch, 137 Wn.2d 792, 852, 975 P.2d 967 (1999); State                  v.   Hartzog, 96

Wn.2d 383, 401, 635 P.2d 694 (1981 ). We have consistently reviewed courtroom


5
    ER611(a).
6
    State   v.   Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997).
7
 State v. Jaime, 168 Wn.2d 857, 865, 233 P.3d 554 (201 0); State      v.   Hartzog, 96 Wn.2d
383, 401, 635 P.2d 694 (1981 ).



                                                  6
No. 87929-0


procedures-allegedly prejudicial or not-for abuse of discretion standard, and Dye

presents no reason for us to depart from that standard now.

II.     Abuse of Discretion

        A trial court abuses its discretion only if any of the following is true:

     (1)    The decision is "manifestly unreasonable," that is, it falls "outside the
range of acceptable choices, given the facts and the applicable legal standard";

      (2)    The decision is "based on untenable grounds," that is, "the factual
findings are unsupported by the record"; or

     (3)    The decision is "based on untenable reasons," that is, it is "based on
an incorrect standard or the facts do not meet the requirements of the correct
standard."

Littlefield, 133 Wn.2d at 47. As a preliminary matter, the "manifestly unreasonable"

and "untenable reasons" tests require us to determine a legal standard to use.

      A. Applicable legal standard

         No controlling authority in Washington decides whether a dog may

accompany a witness during testimony. We have found only two on-point published

cases from other jurisdictions: People v. Tohom, 969 N.Y.S.2d 123 (N.Y. App. Div.

2013), and People v. Spence, 212 Cal. App. 4th 478, 151 Cal. Rptr. 3d 374 (2012).

In both cases, the witness at issue was a young girl who had been raped by her

father. Tohom, 969 N.Y.S.2d 123; Spence, 212 Cal. App. 4th at 485. The witness in

Spence was crying and upset as she recounted the events to health workers. 212

Cal. App. 4th at 485-86. Accordingly, the prosecutor moved for a "therapy dog" to

be present on the witness stand with the victim, citing concerns that the witness

might have an "emotional meltdown and refuse to testify." /d. at 512. The trial court

granted the motion, ruling that "it was reasonably probable that testifying might be



                                              7
No. 87929-0

an intimidating situation for [the witness]," id., and that the dog was known to be

nondisruptive. The appellate court agreed, deferring without analysis to the trial

court's "implied findings of necessity." 8 /d. at 518. Similarly, in Tohom, the witness

was experiencing symptoms of posttraumatic stress disorder and did not feel

comfortable testifying because her family members blamed her for the situation.

969 N.Y.S.2d at 126-27. The trial court permitted the dog to be present during the

witness's testimony and the appellate division affirmed, citing the trial court's

discretion to "fashion[] an appropriate measure to address a testifying child

witness's emotional or psychological stress, based upon the particular needs of

that child." /d. at 132-33 (citations omitted).

       The Court of Appeals has held that a child witness may hold a doll during

testimony. In State v. Hakimi, 124 Wn. App. 15, 18, 98 P.3d 809 (2004), the two

witnesses were young girls who had been allegedly molested by their babysitter,

Morteza Hakimi. Hakimi moved to prohibit the witnesses from carrying a doll to the

witness stand. The trial court heard argument on the motion, including testimony by

an expert in child interviewing that "girls in particular in the 9-year-old age range

may find security and comfort by holding a toy while answering questions posed to

them during examination at trial." /d. at 21. The trial court weighed the interests of

the witnesses against the potential prejudice to Hakimi and denied Hakimi's

motion, stating that

8
  Defense counsel suggests that the result might also be attributed to a California statute
allowing vulnerable victims to appear accompanied by support persons. CAL. PENAL CoDE
§ 868.5. However, the court in Spence, 212 Cal. App. 4th 478, did not rely on this statute.
Furthermore, Washington has a similar support person statute. RCW 7.69A.030(3).



                                             8
No. 87929-0


       the doll will not be the subject of any questioning .... [C]hildren do
       present different issues and different considerations in terms of being
       witnesses in different cases. They have a peculiar need to find some
       security in an otherwise insecure setting, I suspect.

              I don't think the doll unduly prejudices, to the extent it
       prejudices anyone at all; so I will allow it.

/d. at 20. The Court of Appeals affirmed the trial court, joining the many other

jurisdictions that have permitted child witnesses to hold a doll, toy, or other comfort

item on the witness stand, 9 or to be accompanied by a parent, victim advocate, or

other trusted individual. 10

       Upon examining those cases that have allowed a child witness to use a

comfort item or support person, a few important similarities and differences

become clear. First, the cases are in largely universal agreement that abuse of

discretion is the correct standard. See, e.g., State v. Perovich, 2001 SO 96, 632

9
 See Smith v. State, 2005 WY 113, 119 P .3d 411, 419; State v. Perovich, 2001 SD 96,
632 N.W.2d 12, 17; State v. Dickson, 337 S.W.3d 733, 743 (Mo. Ct. App. 2011 ); State v.
Powell, 318 S.W.3d 297, 302 (Mo. Ct. App. 201 0); State v. McPhee, 58 Conn. App. 501,
508, 755 A.2d 893 (2000); State v. Marquez, 1998-NMCA-010, 124 N.M. 409, 413, 951
P.2d 1070; State v. Gibson, 973 S.W.2d 231, 245 (Tenn. Grim. App. 1997); Sperling v.
State, 924 S.W.2d 722, 726 (Tex. App. 1996); People v. Gutkaiss, 206 A.D.2d 628, 631,
614 N.Y.S.2d 599 (1994); State v. Cliff, 1161daho 921,924,782 P.2d 44 (Ct. App. 1989);
Commonwealth v. Amirault, 404 Mass. 221, 243, 535 N.E.2d 193 (1989).
10
   See Holmes v. United States, 171 F.2d 1022, 1023 (D.C. Cir. 1949); Baxter v. State,
522 N.E.2d 362, 365 (Ind. 1988); State v. Jones, 178 W. Va. 519, 521, 362 S.E.2d 330
(1987); State v. Rogers, 213 Mont. 302, 307-08, 692 P.2d 2 (1984), overruled on other
grounds by State v. Olson, 286 Mont. 364, 951 P.2d 571 (1997); State v. Keeley, 8 Utah
2d 70, 71-72, 328 P.2d 724 (1958); Hortman v. Vissage, 193 Ga. 596, 598, 19 S.E.2d 523
(1942); Evers v. State, 84 Neb. 708, 121 N.W. 1005, 1007-08, rev'd on other grounds,
State v. Brockman, 184 Neb. 435, 168 N.W.2d 367 (1909); Boatright v. State, 192 Ga.
App. 112, 116, 385 S.E.2d 298 (1989); Stanger v. State, 545 N.E.2d 1105, 1114 (Ind. Ct.
App. 1989), overruled on other grounds by Smith v. State, 689 N.E.2d 1238 (Ind. 1997);
Commonwealth v. Pankraz, 382 Pa. Super. 116, 125-26, 554 A.2d 974 (1989); State v.
Dampier, 94 Or. App. 258, 261, 764 P .2d 979 (1988); State v. Johnson, 38 Ohio App. 3d
152, 154, 528 N.E.2d 567 (1986); Brooks v. State, 24 Md. App. 334, 342, 330 A.2d 670
(1975); Rodgers v. State, 30 Tex. Ct. App. 510, 528-29, 17 S.W. 1077 (1891).



                                           9
No. 87929-0


N.W.2d 12, 17-18 ("A cold record invariably lacks the emotion of the occurrence

below. It is obvious that a trial of this type takes its toll on both witnesses and the

parties. Whether or not these emotions amount to circumstances that create an

unfair trial is best addressed within the discretion of the trial court.").

       Second, many of these cases involved highly egregious facts. See, e.g.,

Holmes v. United States, 171 F.2d 1022, 1023 (D.C. Cir. 1949) ("The child was a

little girl of nine who had been subjected to a most terrible and horrifying

experience [being raped, beaten and disfigured, and left unconscious under some

leaves] to a degree which might well influence the balance of her life.").

       Third, the courts are split on whether the prosecution must prove that the

special measure is necessary to secure the witness's testimony. A number of

courts have declined to require that the prosecution make a showing of necessity,

instead putting the onus on the defendant to prove prejudice or impropriety. See,

e.g., State   v.   Dickson, 337 S.W.3d 733, 743 (Mo. Ct. App. 2011) ("[T]here was

nothing to suggest that the toys were used to engender the sympathy of the jurors;

no reference to the teddy bears was made in the presence of the jury; and the

witnesses were testifying about traumatic events."); State         v.   Powell, 318 S.W.3d

297, 303-04 (Mo. Ct. App. 201 0) ("There is nothing to suggest that the stuffed

animals were merely an attempt to cater to the emotional sympathy of the jurors.

No reference was made to the teddy bears by any of the witnesses or counsel in

the presence of the jury."); Sperling v. State, 924 S.W.2d 722, 726 (Tex. App. 1996)

("With nothing more in the record, we cannot conclude that the teddy bear

constituted demonstrative evidence which engendered sympathy in the minds and


                                             10
No. 87929-0


hearts of the jury, validated the child-victim's unimpeached credibility, or deprived

appellant of his constitutional right of confrontation.").

       Two states explicitly require the prosecution to show that a special measure

is necessary to facilitate the witness's testimony. Delaware has adopted a

"substantial need" standard, Gomez       v.   State, 25 A. 3d 786, 798-99 (Del. 2011 ), and

Hawaii has adopted a similar "compelling necessity" standard. State            v.   Palabay, 9

Haw. App. 414, 417, 844 P.2d 1 (1992).

       Finally, several states have shied away from an explicit necessity test but

nevertheless relied on a record that clearly indicated that the witness would have

difficulty testifying in the absence of the comfort item or support person. See

Hakimi, 124 Wn. App. at 21 (expert in child interviewing testified that doll could put

young girls at ease); Perovich, 632 N.W.2d at 17 (witness refused to come to the

stand when called, remaining in the back of the courtroom and crying); State v.

Cliff, 1161daho 921,923,782 P.2d 44 (Ct. App. 1989) (child had dry heaves while

testifying at preliminary hearing and had to be taken to restroom); State           v.   Dampier,

94 Or. App. 258, 260, 764 P.2d 979 (1988) (witness began crying on the stand and

was unable to answer questions until foster mother was permitted to enter the

stand with her); Brooks      v.   State, 24 Md. App. 334, 341, 330 A.2d 670 (1975)

(witness "virtually fainted after being removed from the courtroom").

       In a different vulnerable-witness setting, Washington and United States

Supreme Court jurisprudence has required a showing of necessity to allow

testimony via closed-circuit television. In Maryland      v.   Craig, 497 U.S. 836, 840, 110

S. Ct. 3157, 111 L. Ed. 2d 666 (1990), the prosecution sought to have the


                                               11
No. 87929-0


witness-a young girl who had been allegedly molested by the owner of her

kindergarten-examined and cross-examined in a separate room while those in the

courtroom watched on video. The Court held that in order to overcome the

defendant's confrontation clause right of "face-to-face confrontation," the trial court

must make a case-specific finding of necessity. /d. at 855-56. That is, the trial court

must hear evidence and "find that the child witness would be traumatized, not by

the courtroom generally, but by the presence of the defendant." !d. at 856. We

adopted the same rule in State v. Foster, 135 Wn.2d 441, 469, 957 P.2d 712

(1998), agreeing with the Court's reasoning in full.

      Our confrontation clause analysis in Foster, 135 Wn.2d at 466-70, and our

fair-trial analysis in Finch, 137 Wn.2d 843-46, show that where special courtroom

procedures implicate constitutional rights, it is not the defendant's burden to prove

that he or she has been prejudiced, but the prosecution's burden to prove that a

special dispensation for a vulnerable witness is necessary. The present context is

no different. However, we do not require a showing of "substantial need" or

"compelling necessity" like Delaware, in Gomez, 25 A.3d at 798-99, or Hawaii, in

Palabay, 9 Haw. App. at 417. Trial courts have a unique perspective on the actual

witness that an appellate court reviewing a cold record lacks; because the trial

court is in the best position to analyze the actual necessity of a special

dispensation, we will not overrule the trial court's exercise of discretion unless the

record fails to reveal the party's reasons for needing a support animal, or if the

record indicates that the trial court failed to consider those reasons. Using this




                                           12
No. 87929-0


standard, we now analyze whether the trial court's decision was based on

untenable grounds, or based on untenable reasons, or manifestly unreasonable.

   B. Untenable grounds

      A trial court's decision is based on untenable grounds "if the factual findings

are unsupported by the record." Littlefield, 133 Wn.2d at 46-47.         Here, the trial

court found that Lare was a "developmentally disabled individual who has ... had

some significant emotional trauma" and that in contrast, Dye was "under no

disability whatsoever." RP (Nov. 18, 201 0) at 29. These findings are well supported

by the record. Lare's sister testified as to the nature and extent of Lare's conditions.

Lare himself testified to how the burglaries made him feel "very vulnerable and very

scared." RP (Dec. 1, 2010) at41.

      The trial court also found that Ellie would be "very unobtrusive, will just

simply be next to the individual, not be lying in his lap .... " RP (Nov. 18, 201 0) at

29. Indeed, Ellie's conduct at trial supports the trial court's finding. The record does

not indicate that Ellie ever disrupted proceedings, left Lare's side, or made any

gestures toward Dye (growling, for instance) that would have made him look

dangerous or untrustworthy. Because the trial court's decision to allow Ellie to be

present was predicated on findings based in the record, the trial court did not rely

on untenable grounds.

   C. Untenable reasons
       A trial court's decision is made for untenable reasons if "it is based on an

incorrect standard or the facts do not meet the requirements of the correct

standard." Littlefield, 133 Wn.2d at 47. Under the standard discussed above, the


                                           13
No. 87929-0


trial court's "implicit" finding of necessity was sufficient. Dye, 170 Wn. App. at 348.

The trial court was made aware of Lare's "significant anxiety regarding his

upcoming testimony," as well as his fear of Dye. CP at 104. The trial court

expressly relied on Lare's "significant emotional trauma" and "developmental

disability," RP (Nov. 18, 201 0) at 29, when it allowed Ellie to accompany Lare on

the witness stand. The trial court clearly understood that Ellie was needed in order

to facilitate Lare's testimony, in light of his mental state. The trial court did

everything but explicitly state on the record that Lare would not testify but for Ellie's

presence, and the failure to do so does not constitute error. Our precedent does

not call for magic words, but for "'a hearing with a record evidencing the reasons

for the action taken .... "' Hartzog, 96 Wn.2d at 401 (quoting State      v.   Hartzog, 26

Wn. App. 576, 588-89, 615 P.2d 480 (1980) (alteration in original) (internal

quotation marks omitted)). Because the trial court held a hearing on the

permissibility of Ellie's presence, and because the record showed why Ellie's

presence was needed to facilitate Lare's testimony, the trial court did not rely on

untenable reasons.

   D. Manifestly unreasonable

       A manifestly unreasonable decision is one that is "outside the range of

acceptable choices, given the facts and the applicable legal standard . . . . "

Littlefield, 133 Wn.2d at 47 (citing State v. Rundquist, 79 Wn. App. 786, 793, 905

P.2d 922 (1995)). As we have noted above, the applicable legal standard gives

broad discretion to the trial court, and the trial court based its decision on Lare's

vulnerable mental state. Furthermore, there is no actual evidence on the record


                                           14
No. 87929-0


that Ellie had the effect of distracting the jury, damaging the presumption of Dye's

innocence,    or otherwise tainting      the proceedings.      Dye    argues that Ellie

impermissibly bolstered Lare's credibility by giving Lare's testimony an "aura of

truth and sympathy," Pet'r's Suppl. Br. at 5-6; that Ellie made Lare look pitiful to the

jury and "presupposed the victimhood of the complainant," Pet. for Review at 13;

that jurors may have believed Lare's stress was because he was telling the truth;

that the trial prosecutor was Ellie's trainer and might have given Ellie conscious or

unconscious behavioral cues; and that a defendant or defense counsel might have

allergies or be uncomfortable around dogs, thereby impeding the defendant's right

of cross-examination. None of these theories has any basis in the record. For

example, far from being discouraged by Ellie's presence, Dye's counsel conducted

an extensive cross-examination of Lare and discredited him by exposing numerous

inconsistencies. See RP (Dec. 1, 2010) at 43, 61,69-70, 72, 80, 87, 101, 120, 126-

27.

       It is the responsibility of a party alleging error to create a record of that error.

If Dye's counsel had seen Ellie jump on Lare, make a defensive posture toward

Dye, or engage in other prejudicial behavior, she could have noted such behavior

for the record, or even asked the court to remove Ellie from the witness stand

momentarily. Counsel did not. This court is not in a position to speculate about

what might have happened at trial.

       Furthermore, whatever subconscious bias may have befallen the jury was

cured by the trial court's limiting instruction, which cautioned the jury not to "make

any assumptions or draw any conclusions based on the presence of this service


                                            15
No. 87929-0


dog." 11 CP at 53. Juries are presumed to follow instructions absent evidence to the

contrary. State v. Kirkman, 159 Wn.2d 918, 928, 155 P.3d 125 (2007). No such

evidence appears on the record here. The constitutional role of the jury prevents us

from presuming-on the force of a bare allegation-that the jury "[made] a decision

based on the dog's reaction and demeanor, not the witness's .... " Br. of Amicus

Curiae Wash. Defender Ass'n & The Defender Ass'n at 14. And our own precedent

compels us to respect the trial court's decision: whether or not we might have

conducted the trial differently, we cannot say the trial court acted in a manifestly

unreasonable manner.

Ill.   Conclusion

       Dye has failed to establish that his fair trial rights were violated. Any

prejudice that resulted from Ellie's presence was minor and largely mitigated by the

limiting instruction that the trial court gave. In contrast, the trial court ruled that

Ellie's presence would be helpful in reducing Lare's anxiety and eliciting his

testimony, and no evidence to the contrary appears on the record. Both the general

trend of courts to allow special procedural accommodations for child witnesses and

the deference built into the abuse of discretion standard require us to respect the

trial court's decision in how to structure its own proceedings. While the possibility


11
   Dye alleges that the limiting instruction was an improper judicial comment on the
evidence because referring to Ellie as a "service dog" implied that Lare was disabled. He
argues that Lare's perceptions and cognitive abilities were central questions of fact for the
jury and that implying that Lare was disabled suggested the answers to those questions
for the jury. However, the only element that Lare's disability weighed on was the
vulnerable-victim aggravator sought by the State, CP at 59, and the jury did not find that
Lare was a vulnerable victim. Therefore, even if the court's reference to Ellie as a "service
dog" presupposed Lare's disability, there was no prejudice.



                                             16
No. 87929-0


that a facility dog may incur undue sympathy calls for caution and a conscientious

balancing of the benefits and the prejudice involved, the trial court balanced the

competing factors appropriately. The trial court did not abuse its discretion and the

Court of Appeals is affirmed.




                                          17
No. 87929-0




      WE CONCUR.




                   18
State v. Dye (Timothy), No. 87929-0
Gordon McCloud, J., Concurrence




                                      No. 87929-0



      GORDON McCLOUD, J. (concurring)-Symbols matter in court. Judicial

robes symbolize formality, decorum, and dignity.        Our flag in the courtroom

symbolizes the importance of American constitutional values. The witness's oath

provides a reminder of the solemn duty to testify truthfully.

       Some symbols convey such a powerful message about the criminal

defendant's probable guilt that we bar their use.        For example, we bar the

government from forcing the defendant to appear at a jury trial in jail garb. State v.

Finch, 137 Wn.2d 792, 844-45, 975 P.2d 967 (1999) (collecting cases). Similarly,

we generally bar the government from forcing the defendant to appear at trial in

shackles. Id.; see also, e.g., Illinois v. Allen, 397 U.S. 337, 90S. Ct. 1057, 25 L.

Ed. 2d 353 (1970).        As this court recently stated regarding an electronic

presentation by a prosecutor, "prejudicial images may sway a jury in ways that

words cannot." In re Pers. Restraint ofGlasmann, 175 Wn.2d 696, 707, 286 P.3d



                                           1
State v. Dye (Timothy), No. 87929-0
Gordon McCloud, J., Concurrence



673 (2012) (citing State v. Gregory, 158 Wn.2d 759, 866-67, 147 P.3d 1201

(2008)).

      The facility dog, Ellie, was a powerful symbol in this case. Indeed, that's

why she was so important for Mr. Lare: her mere presence conveyed a deeply

reassuring, yet silent, message of comfort, security, and support.          I join the

majority in concluding that the State showed the need for such a powerful symbol

to assist Mr. Lare in testifying given the particular facts of this case.

      But given the undisputed power of the dog's symbolic message, I disagree

with the majority's conclusion that that is the end of the trial court's job. Instead,

to maintain the symbolism of fairness in the courtroom, additional measures must

be taken. Those measures must ensure that the jury decides the case based solely

on the facts, rather than based-even in part-on the facility dog's silent message

about Mr. Lare's status as a sympathetic and truthful victim who is worthy of

support.

       The defense in this case did not suggest any additional measures, except for

what appears to be the sarcastic comment that Mr. Lare could testify with Ellie if

Mr. Dye could testify holding his baby. But the trial court should have considered

other measures to neutralize the facility dog's powerful symbolism in support of

the alleged victim. See, e.g., State v. Rodriguez, 146 Wn.2d 260, 271-72, 45 P.3d

                                            2
State v. Dye (Timothy), No. 87929-0
Gordon McCloud, J., Concurrence



541 (2002) (listing steps that court should take before permitting an inmate

witness-for either side-to testify in shackles). 1 For example, if the State's key

witness is accompanied by a facility dog, then the defendant or the defendant's key

witness might be accompanied by a facility dog.            The purpose of the second

facility dog need not be to provide symbolic support; its sole purpose could be to

symbolize a level playing field in the courtroom. Alternatively, the witness might

have been seated with the dog shielded from view before the jury entered the

courtroom. The trial court should also be open to other suggestions in the future

for neutralizing a facility dog's powerful symbolism.

       The majority asserts that the court's instruction that the jury should ignore

the dog in the room sufficed to guard against any possible prejudice to Mr. Dye.

Majority at 15-16. I disagree. The majority bases this conclusion on the general

rule that jurors are presumed to follow their instructions. State v. Emery, 174

Wn.2d 741, 766, 278 P.3d 653 (2012) (citing State v. Anderson, 153 Wn. App.

417, 220 P.3d 1273 (2009)).



       1
         The defense's failure to request equalizing measures, despite initially objecting,
seems similar to a failure to request a curative instruction despite raising an objection.
The failure to request a curative instruction does not waive the claim of error, e.g., State
v. Claflin, 38 Wn. App. 847, 849 n.2, 690 P.2d 1186 (1984), and the failure to request an
equalizing measure should not waive the claim of error here either.

                                             3
State v. Dye (Timothy), No. 87929-0
Gordon McCloud, J., Concurrence



      That presumption, however, does not always apply. The courts recognize

the reality that jurors are likely unable to follow certain instructions, like an

instruction to ignore a codefendant's confession. Bruton v. United States, 391 U.S.

123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). In fact, this court has noted that

"[prejudicial] imagery" in particular "may be very difficult to overcome with an

instruction." Glasmann, 175 Wn.2d at 707 (citing Gregory, 158 Wn.2d at 866-67).

Thus, the presumption that jurors follow instructions is especially inapplicable

where the challenged procedure-here, the presence of the adorable dog Ellie-is

a procedure that works only because it provides such powerful symbolism.

       Finally, the majority asserts that adding a claim that the challenged ruling

"violated the defendant's right to a fair trial does not change the standard of

review" and that the standard of review applicable to evidentiary errors still

applies. Majority at 6. I agree that violation of a state rule concerning the conduct

of the trial and control of the courtroom does not necessarily change the analysis

from evidentiary error to constitutional error. 2 But a constitutional issue is presented

when an error in the conduct of the trial-even one that would be subject to abuse of

       2
         Sawyer v. Smith, 497 U.S. 227, 239, 110 S. Ct. 2822, 111 L. Ed. 2d 193 (1990);
Tinsley v. Borg, 895 F.2d 520, 530 (9th Cir. 1990) (incorrect evidentiary rulings ordinarily
not a basis for constitutional claim); United States ex rel. Lee v. Flannigan, 884 F.2d 945,
953 (7th Cir. 1989) (claim based on "other crime" evidence not cognizable because error
did not violate constitutional right to fundamental fairness).

                                             4
State v. Dye (Timothy), No. 87929-0
Gordon McCloud, J., Concurrence



discretion review if analyzed solely under state court rules-also violates a

                        3
constitutional right.       The defense raised such an issue here. E.g., Pet'r's Suppl. Br.

at 3-4 (raising fair trial right under Sixth and Fourteenth Amendments to the United

States Constitution).

       Given the strength of the State's evidence in this case, however, any error

involving Ellie was certainly harmless, under any standard of review.            I therefore

concur.




       3
           E.g., Miller v. Pate, 386 U.S. 1, 6, 87 S. Ct. 785, 17 L. Ed. 2d 690 (1967)
(evidentiary error of admitting men's shorts with reddish brown stain amounted to
constitutional error warranting federal habeas corpus relief because state knew at time of
trial that the stain was not blood and, hence, conviction obtained by knowing use of false
evidence); White v. White, 925 F.2d 287 (9th Cir. 1991) (granting habeas corpus reliefbased
on petitioner's inability to confront adverse witnesses at parole revocation hearing); Rivera
v. Dir., Dep't ofCorr., 915 F.2d 280, 281-83 (7th Cir. 1990) (granting habeas corpus relief
because trial court improperly used hearsay rule to exclude codefendant's confession
exculpating petitioner); Thomas v. Lynaugh, 812 F.2d 225, 230 (5th Cir. 1987) (admission
or exclusion of evidence may violate constitution if the evidence is a "crucial, critical, or
highly significant factor in the context of the entire trial" (citing Mullen v. Blackburn, 808
F.2d 1143, 1143-46 (5th Cir. 1987))); Walker v. Engle, 703 F.2d 959, 963 (6th Cir. 1983)
(where the violation of state's evidentiary rule has resulted in denial of fundamental
fairness, habeas corpus relief will be granted); Dickson v. Wainwright, 683 F.2d 348, 350
(11th Cir. 1982) (fundamentally unfair state evidentiary rulings are basis for habeas relief).
Cf Estelle v. McGuire, 502 U.S. 62, 70, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991) (leaving
open question of whether violation of state evidentiary rule can amount to due process
 clause error).

                                                5
State v. Dye (Timothy), No. 87929-0
Gordon McCloud, J., Concurrence




                                      6
