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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                              NO. 70955-1-


                     Respondent,                  DIVISION ONE


                     v.



JOHN PATRICK BLACKMON,                            UNPUBLISHED OPINION


                     Appellant.                   FILED: December 22, 2014




       Lau, J. — After two mistrials, the jury convicted John Blackmon on two counts of

second degree child molestation, one count of third degree rape of a child, and two

counts of third degree child molestation involving his daughter, IB. He claims error

based on ER 106 rulings, improper opinion testimony, prosecutorial misconduct, denial

of his mistrial motion, confrontation right violation, and the court's imposition of an

exceptional sentence. Blackmon also submitted a pro se statement of additional

grounds alleging 10 additional errors. Finding no reversible error, we affirm. However,
we accept the State's concession on the excessive sentence issue and remand to the

trial court for resentencing.
70955-1-1/2



                                          FACTS


      Although the facts were disputed at trial, the evidence shows the following. In

2007, John Patrick Blackmon lived in a three-bedroom home with his wife, Jenifer

Blackmon,1 and their three children, IB, ZB, and BB.

      Blackmon's oldest daughter, IB, reported that sometime before August 2008, he

began sexually abusing her when she was 13 years old. Blackmon put his hand down

IB's shorts and began rubbing her after the family had gone to bed.

      IB testified that sometimes the abuse would occur three to four times per week.

She said he performed oral sex on her, placed his penis between her butt cheeks,

exposed her to pornography, had her stimulate him, and asked to shave her pubic hair.

IB testified that this abuse happened in Blackmon's bedroom while the two watched

movies. He locked the door to prevent the other children from coming into the room.

Blackmon covered the gap between the door frame and wall with a pillow or a towel to

prevent anyone from peering into the room. IB testified the abuse happened when her

mother was at work or asleep. On occasion, IB initiated the sexual contact because it

made her feel closer to Blackmon.

      The abuse stopped at the start of IB's sophomore year of high school. She told

Blackmon she wanted a normal relationship with him without the sexual activity. He

agreed, but their relationship became contentious. For example, Blackmon revoked her

privileges and threatened to stop her from playing basketball when she violated a rule




      1 We use Jenifer's first name for clarity.
                                            -2-
70955-1-1/3



against texting friends on the "no contact" list. Report of Proceedings (RP) (July 5,

2013) at 516-17. IB described their relationship as "[v]ery rocky" and "argumentative."

RP (July 5, 2013) at 392.

       Soon afterwards, IB disclosed the abuse to her friend, MF. MF reported the

abuse to her mother, who then reported it to her husband, Mark Froland, an Edmonds

police officer. Officer Froland talked to IB and reported the abuse allegation to

Marysville Police Detective Cori Shackleton.

       Blackmon was arrested and charged with various counts of molestation and child

rape involving IB. Two trials resulted in mistrials when the juries deadlocked. The State

refiled charges against Blackmon by fifth amended information with two counts of

second degree child molestation, one count of third degree rape of a child, and two

counts of third degree child molestation. The jury convicted Blackmon as charged.

       At sentencing, the trial court imposed 116 months on each count of second

degree child molestation (counts 1 and 2), 60 months on one count of third degree rape

of a child (count 3), and 60 months on each count of third degree child molestation

(counts 4 and 5). Counts 1 through 4 ran concurrent to each other and consecutive on

count 5, resulting in a total sentence of 176 months. The court also ordered 36 months

of community custody for each of the five counts. It indicated, "The combined term of

community custody and confinement shall not exceed the statutory maximum."

Blackmon appeals.




                                            -3-
70955-1-1/4



                                            ANALYSIS

       Rule of Completeness—Evidence Rule 106

       At trial, the State read to the jury select portions from the 79-page transcript of

Blackmon's prior trial testimony.2 Blackmon argues the trial court erred by denying his

request to admit remaining portions of his prior trial testimony. He claims this error

violates ER 106 and the state and federal constitutions.3 Under ER 106, the court

admitted eight of Blackmon's proposed transcript excerpts and excluded five.

       ER 106 allows a party to supplement portions of a writing or recorded statement

offered by an adverse party with other relevant portions as fairness requires: "When a

writing or recorded statement or part thereof is introduced by a party, an adverse party

may require the party at that time to introduce any other part, or any other writing or

recorded statement, which ought in fairness to be considered contemporaneously with

it."

       The rule's purpose is "to protect against the misleading impression that might

otherwise result from hearing or reading materials out of context." 5D Karl B. Tegland,

Washington Practice: Courtroom Handbook on Evidence § 106:1 (2013-2014).

"The rule is not, however, a vehicle for the wholesale introduction of otherwise

inadmissible evidence to rebut the writing or recording or to benefit the opponent in

some other way. Material in the writing or recording that is irrelevant or privileged

remains inadmissible." 5D Tegland, supra, § 106:2. Once relevance has been


       2 Blackmon did not testify at his second or third trial.

       3 Blackmon does not contest that his prior sworn trial testimony was generally
admissible in his subsequent trial.
                                             -4-
70955-1-1/5



established, the court determines whether the offered portions of the statement are

necessary to (1) explain the admitted evidence, (2) place the admitted portions in

context, (3) avoid misleading the trier of fact, and (4) ensure a fair and impartial

understanding of the evidence. State v. Larry, 108 Wn. App. 894, 910, 34 P.3d 241

(2001) (citing United States v. Velasco, 953 F.2d 1467, 1475 (7th Cir. 1992)). The

completeness doctrine does not require introduction of portions of a statement that are

neither explanatory of nor relevant to the admitted passages. United States v. Marin,

669 F.2d 73, 84 (2d Cir. 1982). The trial court's decision regarding admission of

evidence is reviewed for abuse of discretion. State v. Simms, 151 Wn. App. 677, 692,

214 P.3d 919 (2009), affd 171 Wn.2d 244, 250 P.3d 107 (2011).

       Blackmon argues that five excerpts were erroneously excluded. He claims the

trial court erred by excluding his exculpatory testimony from the first trial where he

denied committing the offenses. At trial, he argued that it is unfair to let the jury know

he previously testified and leave them with the mistaken impression that he may have
confessed to the offenses. He also argues the omission violates his rights under the

Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and article I,
sections 3, 9, and 22 of the Washington State Constitution. In the context ofthe rule of
completeness, the State offered no prior testimony related to any confession or
admission ofguilt by Blackmon. Blackmon established no factual or legal basis to admit
his exculpatory testimony denying the commission of the offenses under this limited
rule. His defense trial strategy consistently challenged IB's credibility. Thus, he
70955-1-1/6



identifies no prior trial testimony that "in fairness" requires the admission of his

exculpatory statement. ER 106. His assertion relies on speculation not evidence.4

       Our review of the record indicates the trial court properly exercised its discretion

in excluding the remaining excerpts offered by Blackmon. These statements relate to

(1) Blackmon's disapproval of anal sex as sodomy, (2) his education and military

experience, (3) how he first met his wife, and (4) his offer to leave the house for a day

during a police investigation. The court excluded these excerpts on various grounds,

including irrelevant, duplicative, unnecessary for context and completeness, and not

unfair. For example, Jenifer testified about how she met Blackmon and about his

employment history. Officer Allen testified that Blackmon agreed to leave for the night

during their investigation. Further, the court allowed Blackmon to present, in part, his

personal views about anal sex with his wife. It properly excluded the excerpt in which

Blackmon expressed his religious feelings about anal sex.




      4 Blackmon relies on United States v. Walker, 652 F.2d 708, 710 (7th Cir. 1981),
United States v. Marin, 669 F.2d 73 (2d Cir. 1982), and United States v. Glover, 101
F.3d 1183 (7th Cir. 1996). Those cases are inapposite. He also misstates the rule in
Walker v. Bangs, 92 Wn.2d 854, 601 P.2d 1279 (1979). He asserts that case stands for
the proposition that "'fairness' ordinarily requires that the adverse party be permitted to
introduce the entire remainder of the writing." Appellant's Br. at 26. The case merely
recognizes the well-settled rule that a trial court has discretion to exclude otherwise
admissible evidence if its prejudice outweighs its probative value. Bangs 92 Wn.2d at
862.
       Blackmon fails to point out that in the prior trial, during the State's cross-
examination, he testified, "Actually I know of my innocence and I've moved forward."
The court allowed the State to present this exculpatory testimony in Blackmon's third
trial. RP (July 9, 2013) at 904.
                                              -6-
70955-1-1/7



       Given our dispositive resolution of the ER 106 issue, we need not address

Blackmon's constitutional argument.5 In any event, a criminal defendant has no

constitutional right to have irrelevant evidence admitted in his or her defense. See State

v. Hudlow, 99 Wn.2d 1,15, 659 P.2d 514 (1983); State v. Rehak, 67 Wn. App. 157,

162, 834 P.2d 651 (1992). Further, evidentiary errors are generally not of a

constitutional magnitude. State v. Grier, 168 Wn. App. 635, 643 n.16, 278 P.3d 225

(2012) (citing State v. Chase. 59 Wn. App. 501, 508, 799 P.2d 272 (1990)). Blackmon's

ER 106 claims fail.

       Opinion Testimony

       Blackmon contends that two statements by officers at trial improperly commented

on his guilt and violated his right to a jury trial.

       Marysville Police Officer David Allen testified about what he observed when he

first encountered IB. He testified, "I remember a very scared teenage girl who was

sitting on the couch. She was all curled up into a ball and kind of something that we

commonly associated with [a] defensive posture." RP (July 8, 2013) at 737.

       Detective Cori Shackleton testified about how she became involved in the

investigation. "I received a call from Mark Froland, who is an Edmonds officer, and he
said that his daughter's friend had told his daughter that she had been molested by her

father." RP (July 9, 2013) at 839.




        5 Blackmon asserts that the trial court based its ER 106 rulings "on the fact that
Mr. Blackmon could have taken the stand to testify if he chose        " Appellant's Br. at
24. The record plainly shows that the trial court rulings are based entirely on the proper
application of the legal principles discussed above.
                                                -7-
70955-1-1/8



       No witness, lay or expert, may testify to the guilt of a defendant, whether by

direct statement or inference. State v. Sanders, 66 Wn. App. 380, 387, 832 P.2d 1326

(1992). Such an opinion violates the defendant's right to a trial by an impartial jury and

the right to have the jury make an independent evaluation of the facts. Sanders, 66 Wn.

App. at 387.

       Blackmon did not object to either statement at trial. The general rule is that

appellate courts will not consider issues raised for the first time on appeal. RAP 2.5(a);

State v. Tolias. 135 Wn.2d 133, 140, 954 P.2d 907 (1998); State v. McFarland. 127

Wn.2d 322, 332-33, 899 P.2d 1251 (1995). However, a claim of error may be raised for

the first time on appeal if it is a manifest error affecting a constitutional right. RAP

2.5(a)(3); State v. Walsh, 143 Wn.2d 1, 7, 17P.3d591 (2001); Tolias, 135Wn.2dat

140.

       To raise an error for the first time on appeal, the error must be "manifest" and

truly of constitutional dimension. State v. WWJ Corp., 138 Wn.2d 595, 602, 980 P.2d

1257 (1999); State v.Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1988). The defendant

must identify a constitutional error and show how the alleged error actually affected the

defendant's rights at trial. It is this showing of actual prejudice that makes the error

"manifest," allowing appellate review. McFarland, 127 Wn.2d at 333; Scott, 110 Wn.2d

at 668. If a court determines the claim raises a manifest constitutional error, it may still

be subject to harmless error analysis. McFarland, 127 Wn.2d at 333; State v. Lynn, 67

Wn. App. 339, 345, 835 P.2d 251 (1992).

       Impermissible opinion testimony regarding the defendant's guilt may be

reversible error if such evidence violates the defendant's constitutional right to a jury
                                              -8-
70955-1-1/9



trial, which includes the independent determination of the facts by the jury. State v.

Demerv, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001); State v. Black, 109 Wn.2d 336,

348, 745 P.2d 12 (1987).

       But the exception under RAP 2.5(a)(3) for manifest constitutional error is a

"narrow one." State v. Kirkman, 159 Wn.2d 918, 934, 155 P.3d 125 (2007). In

determining whether a claimed error is manifest, we view the claimed error in the

context of the record as a whole, rather than in isolation. Manifest error is

"'unmistakable, evident or indisputable.'" State v. Burke, 163Wn.2d 204, 224, 181 P.3d

1 (2008) (quoting State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992)).

       On the specific issue of whether the admission of opinion testimony on an

ultimate fact, without objection, is reviewable as "manifest" constitutional error, the

Washington Supreme Court held:

       'Manifest error' requires a nearly explicit statement by the witness that the
       witness believed the accusing victim. Requiring an explicit or almost explicit
       witness statement on an ultimate issue of fact is consistent with our precedent
       holding the manifest error exception is narrow. . .. [It] is [also] improperfor any
       witness to express a personal opinion on the defendant's guilt.

Kirkman, 159 Wn.2d at 936-37.

       Officer Allen's testimony was not an explicit or near-explicit opinion or comment

on Blackmon's guilt or veracity. "[T]estimony that is not a direct comment on the

defendant's guilt or on the veracity of a witness, is otherwise helpful to the jury, and is
based on inferences from the evidence is not improper opinion testimony." City of

Seattle v. Heatley, 70 Wn. App. 573, 578, 854 P.2d 658 (1993). Officer Allen's disputed

testimony was based on his direct observation and knowledge ofthe facts he personally

observed.
                                             -9-
70955-1-1/10



       Detective Shackleton responded to the State's question about how she became

involved in the investigation. It is obvious from the question and her answer that the

testimony was not offered for the truth of the matter asserted.6 State v. Iverson, 126

Wn. App. 329, 337, 108 P.3d 799 (2005) ("When a statement is not offered for the truth

of the matter asserted but is offered to show why an officer conducted an investigation,

it is not hearsay and is admissible.").

       Thus, if Blackmon had objected on hearsay grounds at trial, the court would have

overruled the objection because the testimony was not hearsay given its context.

Detective Shackleton's testimony does not constitute an explicit or near-explicit opinion

or comment on Blackmon's guilt. The claimed error was not manifest.

       Motion in Limine

       Blackmon claims that when IB violated the trial court's order in limine by

mentioning the word "trial," it allowed the jury to speculate that he had been previously
tried and convicted after testifying.

       Before trial, the court granted a motion in limine precluding references to

Blackmon's "prior trials." RP (July 1, 2013) at 27. Throughout the trial, nearly all
witnesses were questioned at length about their testimony at "prior proceedings" or
"prior hearings" in the case.7




       6Blackmon's reply brief argues, for the first time on appeal, that the testimony
was inadmissible hearsay. We disagree.

       7The State provides nearly 30 citations to the record where witnesses were
questioned about prior "proceedings" or "hearings."
                                            -10-
70955-1-1/11



       On cross-examination, Blackmon sought to impeach IB with her written

statement. "So this was a statement that you wrote between the second time you

testified and this time, the third time that you've testified; right?"8 RP (July 8, 2013) at

544. On redirect, the State asked IB about the statement:

             Q: . .. When you said you testified against your father for two weeks, did
       you mean you sat in the chair you're in now, or a chair like it, and talked in front
       of people for two weeks straight?
               A: No.
               Q: What did you mean?
               A: I was meaning that I was in trial or, like, in a hearing like this for two
       weeks.


RP (July 8, 2013) at 582-83 (emphasis added).

       The court denied Blackmon's subsequent mistrial motion. It reasoned that the

reference was de minimis and Blackmon repeatedly asked her about prior testimony.

The court concluded, "[T]o grant a mistrial over that would be like swatting a fly with a

nuclear bomb. It would be wholly inappropriate to grant a mistrial under those

circumstances." RP (July 8, 2013) at 593.

       A violation of an order in limine is considered a serious trial irregularity, but not all

such violations are considered so serious as to deprive the defendant of a fair trial.

State v. Thompson, 90 Wn. App. 41, 46-47, 950 P.2d 977 (1998). To determine

whether an irregularity deprived a defendant of a fair trial, this court considers the

following factors: (1) the seriousness of the irregularity, (2) whether the statement in

question was cumulative, and (3) whether the irregularity could be cured by an

instruction to disregard the remark, an instruction that the jury is presumed to follow.

State v. Escalona, 49 Wn. App. 251, 254, 742 P.2d 190 (1987). Claims of prejudice are

       8 IB was asked by both parties about prior interviews and testimony 16 times.
                                              -11-
70955-1-1/12



reviewed against the backdrop of all the evidence. Escalona, 49 Wn. App. at 254.

Because the trial judge is in the best position to determine the impact of a potentially

prejudicial remark, a trial court's decision is reviewed for an abuse of discretion.

Escalona. 49 Wn. App. at 254-55. A trial court's denial of a motion for mistrial will be

overturned only when there is a substantial likelihood the error prompting the mistrial

affected the jury's verdict. State v. Rodriguez, 146 Wn.2d 260, 269-70, 45 P.3d 541

(2002).

       Here, the violation was de minimis. Considered in the context of numerous

references to prior "hearings" and "proceedings," the jury was well aware that

proceedings occurred before it was empaneled. IB's isolated reference to a trial

disclosed nothing about the substance or result of any prior proceedings. Moreover, the

alleged error could have been easily cured by a cautionary instruction. Blackmon

requested none. We conclude the trial court properly denied Blackmon's mistrial

motion.


          Prosecutorial Misconduct

          Blackmon alleges the prosecutor committed misconduct when he (1) elicited

testimony from MF that it was hard to testify with the defendant in the room, (2) referred

to a document as a "trial transcript" shortly after Blackmon moved for a mistrial based

on IB's trial comment, and (3) misstated the burden of proof during rebuttal closing.

          Blackmon did not object to any of these alleged errors at trial. As a general rule,

appellate courts will not consider arguments raised for the first time on appeal unless it

is a manifest constitutional error. RAP 2.5(a)(3); State v. McFarland, 127 Wn.2d 322,

333, 899 P.2d 1251 (1995). An appellant must show actual prejudice in order to
                                              -12-
70955-1-1/13



establish that the error is manifest. State v. Contreras, 92 Wn. App. 307, 311, 966 P.2d

915 (1998). It is not enough to allege prejudice; actual prejudice must appear in the

record. McFarland, 127 Wn.2d at 334. To show he was prejudiced by the statements,

defendant must show that the trial court would likely have sustained the objection if

made. McFarland, 127 Wn.2d at 334. A defendant claiming prosecutorial misconduct

"'bears the burden of establishing the impropriety of the prosecuting attorney's

comments and their prejudicial effect.'" State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d

221 (2006) (quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)). Where

the defense fails to object to an improper comment, the error is considered waived

"'unless the comment is so flagrant and ill-intentioned that it causes an enduring and

resulting prejudice that could not have been neutralized by a curative instruction to the

jury.'" McKenzie, 157 Wn.2d at 52, (quoting Brown, 132 Wn.2d at 561).

       When a prosecutor fails to act in the interest of justice, a prosecutor commits

misconduct. State v. Davenport, 100 Wn.2d 757, 762, 675 P.2d 1213 (1984). Where

there is a substantial likelihood a prosecutor's misconduct affected the jury's verdict, the

defendant is deprived of the fair trial he or she is guaranteed by the Fourteenth

Amendment. State v. Belgarde, 110 Wn.2d 504, 508, 755 P.2d 174 (1988).

       Right to Confront

       Blackmon contends that when the State asked MF why she was emotional and

having a difficult time testifying in Blackmon's presence, it improperly asked the jury to

convict him because he exercised his right to confront a witness.




                                            -13-
70955-1-1/14



      At trial, MF testified about a conversation with IB. The prosecutor asked her why

she was upset and she replied that "It's really hard to talk about what happened and to

see him." RP (July 2, 2013) at 16.

       On cross-examination, Blackmon also asked MF about being upset.

       Q: It's pretty hard for you to be here today, huh?
      A: Yes.
       Q: And that's because John Blackmon is here?
      A: Right.
       Q: You understand that he has to be here?
      A: Yes.


RP (July 2, 2013) at 24.

       Article I, section 22 of the Washington State Constitution guarantees a

defendant's right to a fair trial. The State may not ask the jury to draw adverse

inferences merely because a defendant exercised his right under article I, section 22 to

confront a witness face-to-face. State v. Wallin, 166 Wn. App. 364, 373-74, 209 P.3d

1072 (2012). A comment is improper where it "naturally and necessarily" causes the

jury to focus on the defendant's exercise of a constitutional right. State v. Ramirez, 49
Wn. App. 332, 336, 742 P.2d 726 (1987). Comments "naturally and necessarily" focus

on the exercise of a constitutional right when they explicitly or implicitly direct the jury's

attention to the defendant's actions that are a result of the exercise of that right.

Ramirez, 49 Wn. App. at 336. But so long as the focusing of the questioning or

argument is not upon the exercise of the constitutional right itself, the inquiry or
argument does not infringe upon a constitutional right. State v. Gregory, 158 Wn.2d
759, 807, 147 P.3d 1201 (2006).



                                              -14-
70955-1-1/15



       The confrontation clause includes the right to have a witness physically present,

to have that testimony offered under oath and subject to cross-examination, and to

provide the trier of fact with an opportunity to observe the demeanor of the witness.

State v. Foster, 135 Wn.2d 441, 456, 957 P.2d 712 (1998) (citing Maryland v. Craig,

497 U.S. 836, 845-46, 110 S. Ct. 3157, 3163, 111 L. Ed. 2d 666 (1990)).

       Gregory is instructive. There, the prosecutor asked a witness how she felt about

testifying in court and being cross examined. The witness elaborated about this

difficulty and the prosecutor used it in closing argument. The court characterized the

relevant issue as

       'whether the prosecutor manifestly intended the remarks to be a comment on that
       right.' State v. Crane, 116Wn.2d315, 331,804P.2d 10(1991). These cases
       suggest that so long as the focus of the questioning or argument 'is not upon the
       exercise of the constitutional right itself,' the inquiry or argument does not infringe
       on the constitutional right. [State v.] Miller, 110 Wn. App. [283,] 284, [40 P.3d
       692 (2002)].

Gregory, 158 Wn.2d at 807. The court found no constitutional violation because the

questioning and argument did not focus on Gregory's right to a trial or to confront

witnesses. Gregory, 158 Wn.2d at 807. Here, the questioning and argument were

proper because the prosecutor did not focus on Blackmon's right to confront witnesses.

       Prosecutor's Reference to "Trial" Transcript

       Blackmon contends the prosecutor committed misconduct by referring to a "trial"

transcript shortly after IB mentioned "trial."

       In the context of the entire record, Blackmon fails to show that the State's

isolated reference to a "trial" transcript incurably prejudiced the jury. The record shows

the prosecutor immediately corrected the reference, ("excuse me—a transcript of a

                                                 -15-
70955-1-1/16



hearing." RP (July 5, 2013) at 496-97), and Blackmon failed to object. Blackmon fails to

establish any prejudice resulting from the prosecutor's isolated reference to "trial." Even

assuming misconduct, the error does not constitute incurable flagrant misconduct. This

claim fails.

        Rebuttal Closing Statement

        Blackmon claims that in rebuttal closing, the State misstated the burden of proof

when it argued that to acquit, the jury must find the State's witnesses were lying. We

disagree.

       The prosecutor argued:

               Ladies and gentlemen, it should be abundantly clear to you at this point, if
        it wasn't days ago, that through the presentation of the evidence in this case, you
        have been presented with two different options. Two very different options.
               Either this was an elaborate, brilliantly constructed and perfectly executed
        fabrication designed by [IB] to get rid of her dad, and along the way enlisting the
        help of her mother and siblings and best friend and police officers, or it really
        happened.

RP (July 9, 2013) at 1021-22.

        Even improper remarks by the prosecutor are not grounds for reversal ifthey

were invited or provoked by defense counsel and are in reply to his or her acts and

statements, unless the remarks are not a pertinent reply or are so prejudicial that a

curative instruction would be ineffective. State v. Weber, 159 Wn.2d 252, 276-77, 149

P.3d 646 (2006) (citing State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994)).

When challenging a prosecutor's statement in closing, the defendant bears the burden

of establishing the prosecutor's conductwas both improper and prejudicial. State v.

Emery, 174 Wn.2d 741, 760-61, 278 P.3d 653 (2012).


                                             -16-
70955-1-1/17



        The State's remark was a direct, pertinent reply to Blackmon's closing argument

that IB had decided to tell a "terrible lie." RP (July 9, 2013) at 990, 1019-20. Even if

the comment were improper, any prejudice could have been cured by an instruction.

        Blackmon argues that the State misrepresented the burden of proof, citing State

v. Barrow, 60 Wn. App. 869, 809 P.2d 209 (1991) and State v. Fleming, 83 Wn. App.

209, 921 P.2d 1076 (1996). But here, unlike in Barrow and Fleming, the prosecutor

never mentioned the burden of proof or tied the jury's credibility determination to its

ability to convict or acquit. The prosecutor's remarks were a pertinent reply to defense

counsel's closing argument attack on IB's credibility, a theme he developed throughout

the trial.

        Blackmon fails to establish both the impropriety of the statement and any

prejudice. Blackmon's claim fails.

        Cumulative Error

        Blackmon argues that because his case was close, cumulative error denied him

a fair trial. But the cumulative error doctrine does not apply where the errors are few

and have little or no effect on the outcome of the trial. Weber, 159 Wn.2d at 279. This

claim fails.

         Exceptional Sentence

         Blackmon argues the exceptional sentence imposed by the court violates the

Sentencing Reform Act (SRA). Blackmon's convictions on counts 1 through 4 resulted
in an offender score of 9. His fifth conviction on count 5 increased his score to 12. The

court imposed an exceptional sentence by imposing a consecutive sentence for count 5.


                                            -17-
70955-1-1/18



      An offender score is computed based on both prior and current convictions.

RCW 9.94A.525(1). For the purposes of calculating an offender score when imposing

an exceptional sentence, current offenses are treated as prior convictions. State v.

Newlun, 142 Wn. App. 730, 742, 176 P.3d 529 (2008). A defendant's standard range

sentence reaches its maximum limit at an offender score of "9 or more." RCW

9.94A.510. Where a defendant has multiple current offenses that result in an offender

score greater than 9, further increases in the offender score do not increase the

standard sentence range. See State v. Alvarado, 164 Wn.2d 556, 561-63, 192 P.3d

345 (2008). A trial court may impose an exceptional sentence under the free crimes

aggravator when "[t]he defendant has committed multiple current offenses and the

defendant's high offender score results in some of the current offenses going

unpunished." RCW 9.94A.535(2)(c); State v. France, 176 Wn. App. 463, 468-69, 308

P.3d 812 (2013) review denied, 179 Wn.2d 1015 (2014).

      The trial court has "'all but unbridled discretion'" in fashioning the structure and

length of an exceptional sentence. France, 176 Wn. App. at 470 (quoting State v.

Halsev, 140 Wn. App. 313, 325, 165 P.3d 409 (2007)). The trial court's discretion to

impose an exceptional sentence on all current offenses is triggered once the defendant

has some current offenses going unpunished. France, 174 Wn. App. at 470. Here, the

trial court lawfully imposed an exceptional sentence of 176 months because Blackmon

had current offenses going unpunished. In other words, a standard range sentence

here results in one of Blackmon's current convictions going unpunished. To avoid a

free crime, count 5, the court imposed an exceptional consecutive sentence. No


                                            -18-
70955-1-1/19



findings of fact are necessary here to support the court's exceptional sentence.

Alvarado. 164 Wn.2d at 561.

       Blackmon also contends the State's failure to notify him before seeking the

exceptional sentence violates due process. Under the SRA, notice to the defendant is

not required when the aggravating factor is based on prior criminal history because the

statutory scheme itself provides notice. State v. Edvalds, 157 Wn. App. 517, 534, 237

P.3d 368 (2010). Under RCW 9.94A.537(1):

      At any time prior to trial or entry of the guilty plea ifsubstantial rights of the
      defendant are not prejudiced, the state may give notice that it is seeking a
      sentence above the standard range. The notice shall state aggravating
      circumstances upon which the requested sentence will be based.

       Here, the State made no request for an exceptional sentence.9 Blackmon's

exceptional sentence claim fails.

                   STATEMENT OF ADDITIONAL GROUNDS (SAG)

       Blackmon alleges 10 additional assignments of error in his statement of

additional grounds.

       Courtroom Closure

       Blackmon alleges that the trial court erred by closing the courtroom to public

access by sealing the court records. SAG at 2. He provides no citations to where either

a courtroom was closed or records were sealed. A review of the record reveals no

closures or sealing of court records. This argument is without merit.



       9 Blackmon relies on Burrage v. United States.          U.S.      , 134 S. Ct. 881, 187
L. Ed. 2d 715 (2014); Allevne v. United States,    U.S.    , 133 S. Ct. 2151, 186 L.
Ed. 2d 314 (2013); State v. Siers, 174 Wn.2d 269, 274 P.3d 358 (2012); and State v.
Schaffer, 120 Wn.2d 616, 845 P.2d 281 (1993). These cases are not applicable.
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       Tainted Jury Venire

       Blackmon contends that the trial court allowed a juror's improper comments to

taint the jury venire. SAG at 3. During voir dire, juror 46 informed the trial court's law

clerk "out in the hallway" that she overheard comments about the case at a coffee shop.

RP (July 2, 2013) at 83. The trial court questioned and excused the juror for potential

prejudice. There is no venire taint and no evidence other jurors heard this comment.

       Citation Errors


       Blackmon points out a citation error in his attorney's brief. We note the

correction.


       Failure to Excuse Jurors


       Blackmon argues the trial court erred by failing to excuse juror 26 who indicated

he could not be fair, by failing to excuse a juror who worked as a victim's advocate, that

several juror had implied bias, and that the trial court should have excluded jurors who

disclosed childhood abuse. A review of the record shows that juror 26 stated he could

be fair and impartial. His argument that the victim's advocate was compelled to vote

guilty or that several other jurors had implied bias is unsubstantiated. Some jurors

acknowledged they disliked the crime but stated they could be fair. This claim fails.

       Probable Cause Hearing

       Blackmon contends that the trial court erred by not holding a probable cause

hearing within 48 hours of his arrest on January 10, 2012. But Blackmon stipulated to

probable cause at a hearing on January 12, 2012. This claim fails.




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70955-1-1/21



       Improper Testimony

       Blackmon argues it was improper for the trial court to permit testimony to be read

into the record. One incident involves refreshing a witness's memory. Blackmon failed

to object. A party's failure to raise an issue at trial waives the issue on appeal unless

the party can show manifest constitutional effort. RAP 2.5(a). Blackmon makes no

such showing. Our review of his remaining alleged improprieties shows no trial error

occurred.

       Improper Hearsay

       Blackmon argues that the trial court improperly admitted hearsay evidence. His

first hearsay allegation involved no objection. His remaining allegations involved timely

objections by defense counsel. One objection was sustained, and the jury was

instructed to disregard the hearsay. The next two allegations involved objections that

were overruled. A trial court's evidentiary rulings are reviewed for an abuse of

discretion. Simms, 151 Wn. App. at 692. A trial court abuses its discretion when its

evidentiary ruling is manifestly unreasonable or is based on untenable grounds or

reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

Blackmon establishes no abuse of discretion by the trial court as to any hearsay

evidence.

       Ineffective Assistance of Counsel

       Blackmon alleges numerous grounds for ineffective assistance of counsel.10 To
prevail on a claim of ineffective assistance of counsel, a defendant must show that


       10 Blackmon claims his attorney (1) should have called an expert witness to
describe memory problems in child witnesses, (2) failed to effectively question jurors
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70955-1-1/22



counsel's performance fell below an objective standard of reasonableness and that the

deficient performance prejudiced his trial. Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); McFarland. 127 Wn.2d at 334-35. The

reasonableness inquiry presumes effective representation and requires the defendant to

show the absence of legitimate strategic or tactical reasons for the challenged conduct.

McFarland, 127 Wn.2d at 336. If one of the two prongs is not satisfied, the inquiry ends.

Strickland, 466 U.S. at 697; State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726

(2007). Blackmon fails to discuss how his counsel's performance fell below an objective

standard of reasonableness. This claim fails.

      Juror Dishonesty

       Blackmon argues that juror 14 failed to disclose a shooting incident on her juror

questionnaire. During voir dire, the prosecutor asked juror 14 about a shooting incident.

The juror responded, "I don't know what Iwas referring to." RP (July 2, 2013) at 102.

Later the juror states that she remembered a shooting incident. Blackmon contends

that because of this disclosure, his attorney should have stricken the juror for cause.

The record does not establish a basis for a for-cause challenge. This claim fails.

       Sentence Exceeds Statutory Maximum

       Blackmon alleges his sentence exceeds the statutory maximum under

RCW 9A.20.021 because it included an additional 36 months of community custody


during voir dire, (3) should have objected to a victim's advocate serving on the jury,
(4) did not challenge jurors who had suffered past abuse, (5) should have objected to
the reading oftranscripts, (6) failed to call an expert to discuss the effect oftime on the
victim's testimony, (7) should have challenged the trial judge as biased, (8) improperly
read from transcripts during trial, (9) improperly coached defense witnesses by reading
from prior testimony, and (10) should not have had a federal case load.
                                            -22-
70955-1-1/23



when combined with the statutory maximum term of confinement. The court sentenced

Blackmon to 116 months on each count of second degree child molestation, 60 months

on the count of third degree rape of a child, and 60 months on each count of third

degree child molestation. The court imposed concurrent sentences on counts 1 through

4 and consecutive on count 5. The court ordered 36 months of community custody on

each of the five counts.

       The standard range for each count of second degree child molestation is 87 to

116 months, with a maximum sentence of 10 years' imprisonment. The standard range

for third degree rape of a child is 60 months, with a maximum sentence of 5 years'

imprisonment. The standard range for each count of third degree child molestation is

60 months, with a maximum of 5 years' imprisonment. The court ordered 36 months of

community custody on each of the five counts. Here, the term of community custody,

combined with the statutory maximum term of confinement, exceeds the statutory

maximum under RCW 9A.20.021.

       RCW 9.94A.701(9) provides that the community custody term specified by RCW

9.94A.701 "shall be reduced by the court whenever an offender's standard range term

of confinement in combination with the term of community custody exceeds the

statutory maximum for the crime." See also State v. Boyd, 174 Wn.2d 470, 473, 275

P.3d 321 (2012). The remedy is to remand to the trial court to either amend the

community custody term or resentence. Boyd, 174 Wn.2d at 473. The State properly

concedes that remand for resentencing is the appropriate remedy. We accept this

concession.



                                          -23-
70955-1-1/24



                                    CONCLUSION

      For the reasons discussed above, we affirm Blackmon's convictions. But we

accept the State's proper concession under Boyd and remand to the trial court for

resentencing.




WE CONCUR:




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                                          -24-
