      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                            NO. 68675-5-1


                    Respondent,                 DIVISION ONE


      v.
                                                UNPUBLISHED OPINION
EBRIMA SUSOHOR,

                    Appellant.                  FILED: November 4, 2013


       Leach, C.J. — Ebrima Susohor appeals his convictions for two counts-^Qf

second degree rape of a child. He contends that the court's instruction to the jury

regarding a third charge of violation of a sexual assault protection order

constituted an impermissible comment on the evidence regarding the jury's

factual determination of whether Susohor raped his stepdaughter.        Assuming,

without finding, that the challenged instruction did impermissibly comment on the

evidence, the jury received overwhelming, untainted evidence supporting

Susohor's conviction. We affirm.

                                     FACTS


       In 2006, Ebrima Susohor married A.R. and moved in with her and her

daughter, A.R.C. The child, then nine years old, began to call Susohor "daddy."

She suffers from pervasive developmental disease and mild mental retardation.
NO. 68675-5-1 / 2




      In late 2008, when A.R.C. was almost 12 years old, Susohor and A.R.'s

relationship deteriorated. Susohor moved out of the home.        Shortly after this

separation, A.R. learned she was pregnant with Susohor's child, and he returned

to live with them. Due to complications with her pregnancy, A.R. checked into

the hospital for a few days leading up to the birth of her child. During this time,

Susohor raped A.R.C. "more than one time" on "more than one night." While she

was visiting the hospital, A.R.C. reported these incidents to her mother. A.R.

notified police. After A.R.C. described multiple incidents of vaginal, oral, and

anal contact with Susohor, police arrested him on suspicion of rape of a child.

Several weeks later, a court issued a pretrial sexual assault protection order

prohibiting Susohor from contacting A.R.C. directly, indirectly, or through a third

party. Despite this order, Susohor sent a signed letter to A.R. that contained a

message for A.R.C.

       A jury convicted Susohor of two counts of rape of a child in the second

degree (counts I and II) and one count of misdemeanor violation of a court order

(count III). The jury also found as an aggravating factor for sentencing that

A.R.C. was a particularly vulnerable victim. Susohor appeals.
NO. 68675-5-1 / 3




                                    ANALYSIS


       Susohor argues that the trial court improperly commented on the

evidence by giving two instructions that referred to a sexual assault victim. We
review jury instructions de novo and in the context of the instructions as a whole.
      Article IV, section 16 of the Washington State Constitution provides,

"Judges shall not charge juries with respect to matters of fact, nor comment
thereon, but shall declare the law."      This provision prohibits a judge from

"conveying to the jury his or her personal attitudes toward the merits of the case"
or instructing a jury that "matters of fact have been established as a matter of
law."2 The court's personal feelings on an element of the offense need not be

expressly conveyed; it is sufficient if they are merely implied.3 "Thus, any remark
that has the potential effect of suggesting that the jury need not consider an
element of an offense could qualify as judicial comment."4            Because the
constitution expressly prohibits any judicial comment on the evidence, a claimed
error based upon such a comment involves a manifest constitutional error that

may be raised for the first time on appeal.5



       1 State v. Lew. 156 Wn.2d 709, 721, 132 P.3d 1076 (2006).
       2 State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997).
       3 State v. Jackman, 156 Wn.2d 736, 744, 132 P.3d 136 (2006).
       4 Lew. 156Wn.2dat721.
       5 Lew. 156 Wn.2d at 719-20.
                                         -3-
NO. 68675-5-1 / 4




       Susohor contends that instructions 17 and 18 impermissibly commented

on the evidence because they implied that the court believed A.R.C.'s version of

events. Both instructions dealt with the elements the State had to prove for the

jury to find Susohor guilty of violation of a court order. Instruction 17 read,

              A person commits the crime of violation of a court order
       when he or she knows of the existence of an order issued for the
       protection of a sexual assault victim, and knowingly violates:
       restraint provisions of the order prohibiting contact with a protected
       party or a provision of the order excluding the person from a
       residence or school or a provision of the order prohibiting the
       person from knowingly coming within or remaining within a
       specified distance of a location.

Instruction 18 listed the elements of violation of a court order as follows:


              To convict the defendant of the crime of violation of a court
       order as charged in Count III, each of the following elements of the
       crime must be proved beyond a reasonable doubt:
              (1) That on or about a time intervening between December
       2, 2009 and December 9, 2009, there existed an order issued for
       the protection of a victim of sexual assault applicable to the
       defendant.

Susohor claims that the use of the term "sexual assault victim" in these

instructions told the jury, in regard to counts I and II, that the court believed a

sexual assault had occurred, improperly removing the factual issue from the

jury's consideration. To support this claim, he cites State v. Jackman.6 in which
our Supreme Court found that jury instructions stating the victims' birth dates was




       6 156 Wn.2d 736, 744, 132 P.3d 136 (2006).
                                          -4-
NO. 68675-5-1 / 5




an impermissible judicial comment where the victims' minority was a major issue

in the case.


       He also relies on State v Becker7 and State v. Lew8 In Becker, the court

found that jury instructions that referred to a school, "'to-wit: Youth Employment

Education Program [YEP] School,'" was an impermissible judicial comment

where the State had a burden to prove that the program was, in fact, a school.9
The court in Lew confronted a similar challenged instruction. On the charge of

first degree burglary, the court instructed the jury that in order to convict Levy, it

must find that he "entered or remained unlawfully in a building, to-wit:          the

building of Kenya White" and that in so doing he "was armed with a deadly

weapon, to-wit: a .38 revolver or a crowbar."10 Our Supreme Court rejected
these "to-wit" references, finding that the instructions improperly implied that an

apartment is a building and a crowbar is a deadly weapon as a matter of law,

rather than as a factual inquiry before the jury.11
       For purposes of this appeal, we assume, without deciding, that the

language used in instruction 17, referring to A.R.C. as a sexual assault victim,

was an impermissible judicial comment. "Judicial comments are presumed to be


       7 132 Wn.2d 54, 935 P.2d 1321 (1997).
       8 156 Wn.2d 709, 132 P.3d 1076 (2006).
       9 Becker. 132 Wn.2d at 64.
       10 Lew. 156Wn.2dat716.
       11 Lew, 156 Wn.2d at 721-22.
                                          -5-
NO. 68675-5-1 / 6




prejudicial, and the burden is on the State to show that the defendant was not

prejudiced, unless the record affirmatively shows that no prejudice could have

resulted."12 To do so, the State must demonstrate that "overwhelming untainted

evidence" supports the verdict.13 In State v. Lane.14 the court clarified application
of this rule in the context of judicial comments on the evidence, explaining,

              "[Ejven if the evidence commented upon is undisputed, or
       'overwhelming,' a comment by the trial court, in violation of the
       constitutional injunction, is reversible error unless it is apparent that
       the remark could not have influenced the jury."[15]
Susohor contends that the State cannot overcome the presumption of prejudice.

He argues that the record contains no physical evidence linking him to the crime

and that he successfully challenged A.R.C.'s credibility by pointing out her mental

deficits and her apparent dislike of him.           To the contrary, strong DNA

(deoxyribonucleic acid) evidence linked him to the crime.           According to the

forensic expert, semen found in A.R.C.'s underpants had a 1 in 180 billion

chance of being from someone not related to Susohor. During a sexual assault

examination immediately after A.R.'s report to the police, A.R.C. provided

graphic, detailed description of the events. At trial, A.R.C. testified repeatedly


      12 Lew. 156Wn.2dat723.
       13 State v. Lane. 125 Wn.2d 825, 839, 889 P.2d 929 (1995) (citing State v.
Gulov. 104 Wn.2d 412, 426, 705 P.2d 1182 (1985)).
       14 125 Wn.2d 825, 889 P.2d 929 (1995)
       15 Lane. 125 Wn.2d at 839 (quoting State v. Boqner. 62 Wn.2d 247, 252,
382 P.2d 254 (1963)).
                                          -6-
NO. 68675-5-1 / 7




and consistently about the details of the rapes.       Overwhelming, untainted

evidence supports each challenged conviction.

                                CONCLUSION


      Assuming the impropriety of challenged instructions, no prejudice resulted

because the State presented overwhelming, untainted evidence that Susohor

committed the charged sexual assaults on A.R.C. We affirm.



                                                   A^t <?• ^
WE CONCUR:




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