       IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON 3
                                                                               CTl     r
                                                                               en      ;.
STATE OF WASHINGTON,
                                                 No. 70561-0-1
                      Respondent,
        v.                                       DIVISION ONE

T.Y.   (D.O.B 4/29/1997),                        UNPUBLISHED OPINION


                      Appellant.                 FILED: November 17, 2014


        Leach, J. — T.Y. appeals his juvenile court adjudication and disposition for

child molestation in the first degree. He challenges the trial court's finding that

complaining witness D.B., who was five years old at the time of trial, was

competent to testify.   He also contends that prosecutorial misconduct deprived

him of a fair trial. Because T.Y. did not object at trial to the court's competency

ruling and he does not show manifest error affecting a constitutional right, he

may not raise this issue for the first time on appeal. Because he has also failed

to establish prosecutorial misconduct, we affirm.

                                    Background

         In the summer of 2012, 15-year-old T.Y. lived in Bothell with his mother,

Chrissy Mannhalter, his stepfather, and two younger siblings. Mannhalter ran a

licensed day care on the main floor of the family home, usually caring for about
No. 70561-0-1/2




eight children. She employed her husband, mother-in-law, and a friend as her

assistants, and T.Y. also helped.

       D.B. was four years old that summer. She had attended Mannhalter's day

care since 2009. One day in July, while in the bathroom with her mother, D.B.

pointed to her "private area" and told her mother that she "hurt down here." Her

mother noticed her vaginal area was red and applied rash ointment. D.B. then

told her mother that she was red because "[T.Y.] keeps touching me down there."

       D.B.'s mother called Mannhalter and told her what D.B. said. Mannhalter

reported the incident to her licensor. On July 24, Child Protective Services (CPS)

investigator Corrie Hayes interviewed D.B. at home. While they played with

stuffed animals, Hayes asked D.B. about day care.        D.B. asked Hayes if she

knew who T.Y. was. When Hayes said she didn't and asked D.B. to tell her

more, D.B. said T.Y. was a "big kid," that they liked to play together, and that she

really liked him. When Hayes asked what they did, D.B. "picked up her dress,

patted the front of her panties in her vaginal area and said he touches me here."

She told Hayes that T.Y. would tickle her, and they would sit on the couch

together, and he would kiss her on the cheek "when it was over" and hug her.

The next day, Hayes interviewed T.Y., who denied inappropriately touching D.B.

       D.B.'s mother was reluctant to pursue the investigation. But after CPS

initiated an investigation into her fitness as a parent, she agreed to cooperate

and seek further professional help for D.B.
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       On December 5, forensic nurse examiner Paula Newman-Skomski

examined D.B.      Newman-Skomski talked to D.B. about personal safety and

eventually asked her if anybody had touched her private areas. D.B. initially said

no but then said that "[T.Y.] did at Chrissy's." D.B. said it happened more than

once, in the living room.

       On December 11, child interview specialist Gina Coslett conducted a

videotaped interview of D.B. at Dawson's Place Child Advocacy Center. When

Coslett began to explain the guidelines for the interview, D.B. interrupted, saying,

"[T.Y.] touched my pee-pee down here and I can't go to Chrissy's anymore."

When Coslett asked her to explain, D.B. said, "I don't remember. Can you tell

me?" D.B. then told Coslett that this happened one time in the living room when

others were present.        She showed Coslett what happened by pulling up her

dress and pointing toward her abdominal or pelvic area.

       The State charged T.Y. in juvenile court with child molestation in the first

degree. The trial court held a hearing at the start of trial to determine D.B.'s

competency to testify.       D.B. answered the prosecutor's questions about her

birthday, Christmas, Halloween, her former day care, and the difference between

the truth and a lie. The prosecutor then asked the court to find D.B. competent to

testify. When the court asked for the defense's position, counsel replied, "I will

defer to the Court." The trial court found D.B. competent to testify.

        D.B. then testified that T.Y. tickled her under her clothes, pointing to her

vaginal area. She said T.Y. did this "two times, every time," and answered
No. 70561-0-1/4




affirmatively when the prosecutor asked if she meant more than twice. When

asked whether it happened in the "living room part or the bedroom part or the

kitchen," she answered, "Bedroom part." When asked where she was sitting, she

said, "On the floor, and on the couch, in the living room." D.B. appeared restless

and reluctant during her testimony but answered all questions on direct and

cross-examination.


       T.Y. testified that he never touched D.B. inappropriately but played "tag,

wrestl[ed] around, play[ed] with the little stuffed animals" with D.B. and all the

other children at the day care. He said that he tickled her and the other children

on the stomach.     Both he and his mother testified that he was never alone with


any of the children.

       The trial court adjudicated T.Y. guilty of child molestation in the first

degree.

       T.Y. appeals.1

                                       Analysis

Child Witness Competency

       First, T.Y. contends that the trial court abused its discretion in finding D.B.

competent to testify.       He argues that D.B.'s testimony shows she didn't

understand her obligation to speak the truth on the witness stand, that she had

limited memory of past events, and that her accounts were inconsistent and

contradictory. The State responds that the trial court properly admitted D.B.'s


          The State initially filed a cross appeal but withdrew it on June 27, 2014.

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testimony but argues as a threshold matter that because T.Y. didn't object to this

issue at trial and does not demonstrate manifest error, he cannot raise it on

appeal.

          We agree with the State. Generally, a party who fails to raise an issue at

trial waives the right to appeal that issue.2      RAP 2.5(a)(3), however, allows a

party to raise for the first time on appeal a "manifest error affecting a

constitutional right."     If the reviewing court determines that an alleged error

affects a constitutional right, it then decides if the alleged error is manifest,

meaning the error actually prejudiced the defendant at trial.3 Here, because T.Y.

was able to cross-examine D.B. and other witnesses who testified about D.B.'s


accounts of the abuse, he was able to exercise his constitutional right to confront

witnesses.       Because T.Y.      does not show a       manifest error affecting a

constitutional    right,   we   decline to    review the trial   court's competency

determination.4




       2 RAP 2.5(a); State v. McFarland. 127 Wn.2d 322, 332-33, 899 P.2d 1251
(1995).
       3 McFarland, 127 Wn.2d at 333.
       4 See State v. Coolev, 48 Wn. App. 286, 290-91, 738 P.2d 705 (1987)
(finding that because defendant was able to "vigorously cross-examine"
interviewer and child witness, no manifest error occurred); see also State v.
Brousseau, 172 Wn.2d 331, 335, 347, 259 P.3d 209 (2011) (defendants have a
due process right to competent evidence, but because the consequence of even
an erroneous pretrial finding of witness competency is that the witness will testify
at trial and be subject to cross-examination, risk of due process violation is
minimal).


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No. 70561-0-1/6




Prosecutorial Misconduct


       Next, T.Y. argues that the prosecutor violated T.Y.'s right to a fair trial. In

closing argument, the prosecutor told the court, "The only reasonable explanation

for [D.B.j's repeated disclosures of what happened is that what she said is what

happened, and that [T.Y.] molested her. . . . What doesn't make sense is the

implication that either she made it up or that somehow she was coached."

Defense counsel did not object to the prosecutor's comments.

       When a defendant did not object to the alleged prosecutorial misconduct

at trial, this court does not review the alleged error unless the misconduct was so

flagrant and ill intentioned that it caused prejudice incurable by a proper jury

instruction.5   Prejudice occurs only if "'there is a substantial likelihood the

misconduct affected the jury's verdict.'"6    In a bench trial, it creates a heavy

burden for the defendant because we presume that a trial judge will disregard

inadmissible matters when making findings.7

       T.Y. argues that the prosecutor's statements "placed the burden on the

defense to prove that D.B. made up a story or that she was coached" and

misstated the burden of proof by implying that the court should convict T.Y. if it

couldn't find a reason to disprove D.B.        He contends that the prosecutor's



       5 State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d 653 (2012).
       6 State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011) (internal
quotation marks omitted) (quoting State v. Yates, 161 Wn.2d 714, 774, 168 P.3d
359 (2007)).
       7 State v. Read, 147 Wn.2d 238, 245-46, 53 P.3d 26 (2002); State v.
Miles, 77 Wn.2d 593, 601, 464 P.2d 723 (1970).
No. 70561-0-1/7




conduct here was like that in cases such as State v. Fleming,8 where the

prosecutor told the jury it could only acquit the defendant if it found that the rape

victim was lying, confused, or fantasizing.

       We disagree. Unlike the prosecutor in Fleming, the prosecutor here did

not tell the court that it could only acquit T.Y. if it found that D.B. was lying. And

unlike other cases T.Y. cites,9 the prosecutor did not say or imply that the court

needed to believe the defendant or "fill in the blank" with a reason in order to

acquit. Rather, the prosecutor's argument here was similar to that in State v.

Killinqsworth,10 where the prosecutor argued that the only "reasonable

explanation" for the evidence was the defendant's guilt.               We affirmed

Killingsworth's conviction, noting that the prosecutor "did not argue or imply that

the defense had failed to offer other reasonable explanations or comment on

Killingsworth's failure to testify. Rather, he simply argued that the evidence did

not support any other reasonable explanation."11 Here, as in Killinqsworth, the

prosecutor highlighted evidence that did not support a "reasonable explanation"

       8 83 Wn. App. 209, 213, 921 P.2d 1076 (1996).
       9 In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 713, 286 P.3d 673
(2012) (misconduct for prosecutor to imply that jury could not acquit unless it
believed defendant's testimony); Emery, 174 Wn.2d at 759-60 (improper for
prosecutor to argue that in order to acquit, jury must "fill in the blank" with
reason); State v. Miles, 139 Wn. App. 879, 890, 162 P.3d 1169 (2007)
(misconduct for prosecutor to argue that jury could only acquit if it believed
defendant); State v. Barrow, 60 Wn. App. 869, 874-76, 809 P.2d 209 (1991)
(misconduct for prosecutor to argue that in order to acquit, jury had to believe the
defendant and "completely disbelieve" the police officers State called as
witnesses).
       10 166 Wn. App. 283, 290 n.5, 269 P.3d 1064, review denied, 174 Wn.2d
1007(2012).
      11 Killinqsworth, 166 Wn. App. at 291.
No. 70561-0-1/8




other than T.Y.'s guilt: D.B.'s young age and lack of the sophistication that would

be necessary to maintain a false account over a period of months, the fact that

she liked T.Y. and considered him her friend, her consistent statements to her

mother and three professionals, and the likelihood that T.Y. was sometimes

alone with D.B. The prosecutor did not shift the burden of proof by asserting that

the judge needed to find a reason to acquit T.Y. Rather, the prosecutor properly

argued inferences from the evidence that weighed against a finding of

reasonable doubt. No misconduct occurred. Moreover, we presume that the trial

court disregarded inadmissible matters and followed the law.        T.Y. does not

overcome this presumption and therefore does not show prejudice.

                                    Conclusion


       Because T.Y. fails to show manifest error affecting a constitutional right,

we do not review T.Y.'s challenge to the trial court's finding that D.B. was

competent to testify. Because T.Y. does not establish prosecutorial misconduct,

we affirm.




WE CONCUR:




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