                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                         April 12, 2016
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                            No. 46357-1-II

                                 Respondent,

           v.

    JUSTIN PURNELL MOSES,                                          consolidated with

                                 Appellant.

    STATE OF WASHINGTON,                                            No. 46377-6-II

                                 Respondent,

           v.

    AIMEE MAXINE MOSES,                                         PUBLISHED OPINION

                                 Appellant.

         MELNICK, J. — Justin Purnell Moses and Aimee Maxine Moses1 appeal their convictions

of criminal mistreatment in the second degree2 for causing substantial bodily harm by withholding

the basic necessities of life from M.A.

         Justin argues the trial court erred when it (1) admitted redacted versions of Aimee’s

interview with Detective Thomas Catey in violation of his Sixth and Fourteenth Amendment rights

to confront witnesses, (2) denied his motion to sever, (3) applied the wrong legal standard in

admitting the child hearsay statements under RCW 9A.44.120, (4) instructed the jurors on the



1
    To avoid confusion, we refer to Justin and Aimee by their first names. We intend no disrespect.
2
    RCW 9A.42.030(1)(a), or (b).
46357-1-II / 46377-6-II


abuse of trust and particularly vulnerable victim aggravating factors and imposed an exceptional

sentence on that basis. He also argues that the cumulative effect of these errors requires reversal.

       Aimee joins all of Justin’s arguments with the exception of issues 1 and 2. She further

argues that the trial court erred when it sustained the State’s objection in closing argument

regarding the presumption of innocence. Justin joins Aimee’s argument. We affirm.

                                              FACTS

       The State, by amended information, charged Aimee and Justin with criminal mistreatment

in the second degree. The State alleged they recklessly created an imminent and substantial risk

of death or great bodily harm to M.A., or in the alternative, recklessly caused substantial bodily

harm by withholding the basic necessities of life from M.A., during the period between December

1, 2011 and February 27, 2012. The State charged both Aimee and Justin with three aggravating

factors, including using their

       position of trust, confidence, or fiduciary responsibility to facilitate the commission
       of the current offense, and/or . . . [their] conduct during the commission of the
       current offense manifested deliberate cruelty to the victim, and/or . . . [they] knew
       or should have known that the victim . . . was particularly vulnerable or incapable
       of resistance.

Clerk’s Papers (Aimee) (CP A) at 20, 21; Clerk’s Papers (Justin) (CP J) at 205, 206.3

I.     OVERVIEW

       M.A., born in 2007, had issues with overeating. M.A.’s mother is related to Justin and a

member of the Muckleshoot Tribe. In September 2011, the Muckleshoot Tribe’s Indian Child

Welfare program (ICW) removed M.A. and his sister, V.A., from their foster home and placed




3
  Appellants’ designated separate clerk’s papers (CP) to this court. We reference Aimee’s
designated CPs as CP A and Justin’s designated CPs as CP J.


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them with Justin and Aimee because they were family. M.A. and V.A. lived with Justin, Aimee,

and their two children.

       In late September 2011, M.A. enrolled in Daffodil Elementary School’s Early Childhood

Education and Assistance Program. Aimee told the school’s family support specialist, Vicki Jones,

that they were addressing M.A.’s eating issues, which included him eating chicken bones. Aimee

told Jones that she was trying to get M.A. a medical appointment for a well-child exam with the

tribe. In early October, the school completed M.A.’s health screening.

       After Christmas break, M.A. stopped attending school. The school called Aimee, who said

she sprained her foot and was unable to take M.A. to school. When M.A. returned to school on

January 9, 2012, he appeared thinner to school employees. They weighed him and he was 8 pounds

lighter than his initial weigh-in approximately 3 months earlier. Concerned, the school called

Aimee. She said that M.A. was sick the week before, but she fed him PediaSure® to make sure

he received proper nutrition.

       A few days later, Aimee told Jones that M.A. should only eat one serving of food and only

drink half a cup of water at each meal because he had a tear in his esophagus that existed before

he came to live with them. M.A. did not attend school again. On January 23, 2012, Jones called

Aimee again regarding M.A.’s attendance; Aimee said they were having transportation problems.

The school continued to call the Moseses and leave messages inquiring about M.A.

       On February 27, 2012, M.A.’s case worker, Debbie Guerrero, called Claire O’Brien,

M.A.’s teacher. After the conversation, Guerrero called the Moseses and asked Justin to bring

M.A. to the ICW office for a visit. Later that day, Justin brought M.A. into the office. The staff

was shocked at M.A.’s emaciated appearance. Justin seemed unfazed and did not react to the




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46357-1-II / 46377-6-II


concerns the staff expressed; he did not have answers to any questions the staff asked about MA’s

health.

          The ICW staff called an ambulance to transport M.A. to Mary Bridge Children’s Hospital

for treatment. Mary Bridge admitted M.A. for severe malnourishment. M.A.’s tribal case workers

told one of M.A.’s doctors that they did not recognize M.A. because he had such a drastic weight

loss.

          Cornelia Thomas, a child forensic interviewer, interviewed M.A. in the hospital with

Detective Catey and Sergeant Berg present. M.A. told Thomas that he did not go to school. When

he did attend, Aimee drove him and he ate lunch at school. M.A. said that Aimee would make

dinner, he would eat jalapenos and hot sauce all the time, but he did not like them. He said that he

had to eat the jalapenos and hot sauce even though the food would make him cry because Aimee

would spank him if he did not eat it. M.A. said Justin and Aimee would tell him to stop crying.

He denied that others ate hot sauce or jalapenos, except Justin.

          M.A. remained hospitalized for approximately eight days. After his release, ICW placed

M.A. in an emergency foster home with his sister.

          A few weeks after his release, Thomas interviewed M.A. again. In this interview, M.A.

told Thomas he was locked in his room behind a gate. If he got out from behind the gate, Aimee

would spank him. M.A. denied sneaking food. He told Thomas that he did eat breakfast at

Aimee’s house, but not lunch, and only a little food. He said Aimee and Justin gave him the

jalapenos and hot sauce. He said he would eat Indian tacos, but only he and Justin ate them with

jalapenos. He told Thomas that he did not want the jalapenos, but Justin and Aimee made him eat

them.




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        On May 24, 2012, Detective Catey and Detective Darren Moss interviewed Aimee and

Justin in a joint interview at their home. Detective Catey advised them both of their Miranda4

rights, they each signed a waiver of their rights, and they both answered questions. Aimee spoke

throughout most of the interview and Justin’s answers were minimal. Aimee told Detective Catey

that the school allowed M.A. to eat off the floor. She said M.A. always wanted jalapenos. She

denied telling anyone M.A. had an issue with his esophagus. Justin said that when he brought

M.A. to ICW he was fine, and he did not notice any significant change. Aimee and Justin both

denied restricting M.A.’s food.

II.     PROCEDURAL HISTORY

        A.      Pre-Trial Motions

        The State provided notice that it intended to introduce hearsay statements of M.A. at trial.

Both Justin and Aimee filed motions to exclude any child hearsay statements because there was

no physical abuse or substantial bodily harm present in the case. The trial court heard the motions.

The State argued that the statements fell within the child hearsay statute5 because withholding food

and nutrition from a child that results in substantial bodily harm is an act of physical abuse.

        The trial court relied on Black’s Law Dictionary for definitions and reasoned that the trial

court give words their ordinary and intended meaning. The trial court read the definition for

        “abused and neglected children.” And it says, “Those that are suffering serious
        physical, emotional injury inflicted on them including malnutrition. See abuse,
        female child or child abuse.” So then that includes malnutrition. Under child abuse
        it says, “Any form of cruelty to a child’s physical, moral or mental well being.”



4
 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
5
 RCW 9A.44.120: “A statement made by a child when under the age of ten . . . describing any
act of physical abuse of the child by another that results in substantial bodily harm . . . not otherwise
admissible by statute or court rule, is admissible in evidence in . . . criminal proceedings” after a
hearing.


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46357-1-II / 46377-6-II


Report of Proceedings (RP) (Feb. 24, 2014) at 49. The trial court preliminarily determined that

Washington’s statute on child hearsay statements applied to the behavior that resulted in M.A.’s

malnutrition. However, it reserved making a ruling.

         Both Justin and Aimee filed motions to sever their trials based on the marital privilege.

They argued that in a joint trial, one spouse could deny the other the right to testify. They also

moved to exclude statements they made to the police because the admission of their statements

would violate the confrontation clause under Crawford v. Washington, 541 U.S. 36, 124 S. Ct.

1354, 158 L. Ed. 2d 177 (2004). During a CrR 3.5 hearing, the trial court determined that the

statements, with redactions, would be admissible because the interview was not custodial. The

court did not rule on the confrontation issue at this time. Subsequently, Justin filed a brief in

support of his motion to sever the trial. He argued that Detective Catey’s interview of Aimee and

Justin could not be redacted in any meaningful way and that Justin’s silence should not be

considered an adoptive admission.6

         Aimee made a motion to exclude child hearsay and argued the statements violated the

confrontation clause because they were testimonial in nature, even if they were generally

admissible under RCW 9A.44.120. After the State provided its proposed redacted transcripts of

Aimee and Justin’s interview, Aimee renewed her motion to sever. The trial court denied the

motions to sever.

         The trial court held a hearing on Aimee’s and Justin’s motions to exclude child hearsay

statements. Following its earlier reasoning, the trial court stated that the ordinary meaning of

“physical” and “abuse” would include maltreatment that results in malnutrition and the meaning

of “physical abuse” encompassed this concept as the term was used in the child hearsay statute.


6
    ER 801(d)(2)(ii).


                                                 6
46357-1-II / 46377-6-II


The trial court again reserved ruling on the child hearsay issue until trial. But, after hearing M.A.’s

testimony, it found that M.A. was competent to testify and the statements would be admissible as

long as M.A. testified at trial and was subject to cross-examination.

         The trial court analyzed the reliability of the child hearsay statements under the Ryan7

factors. The trial court found that M.A.’s statements were reliable because he had no motive to

lie, the statements were spontaneous because they were not in response to leading questions, the

timing of the statements were not too long after the events, M.A. seemed to have a good memory,

and the circumstances surrounding the statements were appropriate in that M.A. had the ability to

receive information, make a memory of the information, and then relate it later.

         B.     Trial Testimony

         At trial, M.A. testified as follows. He was kept in his room by a baby gate and if he left

his room, Justin and Aimee would “whoop” his bottom. RP (May 1, 2014) at 1027. He ate hot

sauce and jalapenos for dinner and did not like them. Only Justin and M.A. ate jalapenos. M.A.

only drank a little bit of water and did not drink any other beverages. Aimee never took him to

the doctor. M.A. said he was skinny “[b]ecause I was starved. . . . I didn’t get any food.” RP

(May 1, 2014) at 1023. He did not like living with Aimee and Justin because “[t]hey starved

[him].” RP (May 1, 2014) at 1025.

         Mary Bridge admitted M.A. for treatment because he was severely malnourished. While

in the hospital, M.A.’s weight was around the tenth or fifth percentile, and the hospital ruled out

medical causes of the malnourishment. His resident doctor, Dr. Daniel Krebs, described M.A. as

having sunken eyes, “you could see his ribs mo[r]e so than you would even on a normally skinny



7
    State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984).



                                                  7
46357-1-II / 46377-6-II


child,” and he was unable to hop on one foot; “[h]e seemed weak.” 8 RP (May 1, 2014) at 933.

When he arrived at the hospital, M.A. weighed 33 pounds and was three feet, four inches tall. He

had a great deal of lower extremity muscle atrophy, described as cachectic or “wasting away.” RP

(May 1, 2014) at 937. His skin was “doughy” and “tented” when pulled which is a sign of

dehydration and malnutrition. RP (May 1, 2014) at 937. Dr. Krebs planned to refeed M.A., but

he worried that M.A. would be subject to “refeeding syndrome,” where the body has dangerous

disturbances in its electrolytes when it finally receives food after a long period of no food. RP

(May 1, 2014) at 940-41. Dr. Krebs acknowledged that M.A. had a normal white blood cell count,

normal temperature, but low protein and a protuberant belly—other signs of malnutrition.

       The trial court admitted M.A.’s statements to Thomas at trial. Over defense objections, the

trial court also admitted redacted versions of Aimee’s and Justin’s statements to Detective Catey.

The redacted version of the interview included statements by Aimee where she used the words

“we” and “us;” references to Justin were replaced with “his.” The trial court instructed the jury

not to consider the statements made by Aimee in deciding Justin’s case.

       C.      Trial Motions, Jury Instructions, Closing Arguments, Verdicts, and Sentencings

       Justin and Aimee moved to strike the aggravating factors related to the abuse of a position

of trust and the particular vulnerability of the victim because they were already encompassed

within the crime of criminal mistreatment. They moved to strike the third aggravating factor based

on insufficient evidence to prove deliberate cruelty. The trial court denied the motions.




8
  M.A.’s doctor also testified that sunken eyes implied a loss of muscle mass in your face and can
also be a sign of dehydration. He testified that having a patient hop on one foot was something he
learned while working with a pediatrician in Africa with malnourished children; it is a way of
assessing normal muscle mass.


                                                 8
46357-1-II / 46377-6-II


        After the State rested its case, Aimee and Justin again made severance motions. The trial

court denied them. Neither Aimee nor Justin testified at trial.

        During closing argument, Justin’s counsel argued, “I would contend that being thin is not

the same as substantial disfigurement especially when you’re told, analyze the evidence while

presuming their innocence.” RP (May 13, 2014) at 1987. The State objected on the grounds that

the argument misstated the law; the trial court sustained the objection. In rebuttal, the State argued

that the presumption of innocence means “[t]hey are innocent up to and unless you find that the

State has overcome its burden and proven that they are guilty of a crime.” RP (May 13, 2014) at

1994.

        The trial court instructed the jury on the presumption of innocence: “A defendant is

presumed innocent. This presumption continues throughout the entire trial unless during your

deliberations you find it has been overcome by the evidence beyond a reasonable doubt.” CP A at

73 (Instr. 3); CP J at 241 (Instr. 3). In addition, the trial court instructed the jury:

               You may only consider statements made by defendant Aimee Moses as
        evidence when determining whether the State has proven Aimee Moses committed
        a crime. You may not consider statements made by defendant Justin Moses when
        determining whether Aimee Moses committed a crime.
               You may only consider statements made by defendant Justin Moses as
        evidence when determining whether the State has proven Justin Moses committed
        a crime. You may not consider statements made by Aimee Moses as evidence when
        determining whether Justin Moses committed a crime.

CP A at 77 (Instr. 7); CP J at 245 (Instr. 7).

        The trial court instructed the jury on aggravating factors for both Aimee and Justin. For

the particularly vulnerable victim aggravator, the court instructed the jury that “a victim is

‘particularly vulnerable’ if he or she is more vulnerable to the commission of the crime than the

typical victim of criminal mistreatment in the second degree. The victim’s vulnerability must also




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46357-1-II / 46377-6-II


be a substantial factor in the commission of the crime.” CP A at 106 (Instr. 36); CP J at 274 (Instr.

36). The trial court instructed the jury on the abuse of trust aggravating factor:

               A defendant uses a position of trust to facilitate a crime when the defendant
       gains access to the victim of the offense because of the trust relationship. A
       defendant need not personally be present during the commission of the crime, if the
       defendant used a position of trust to facilitate the commission of the crime by
       others.
               In determining whether there was a position of trust, you should consider
       the length of the relationship between the defendant and the victim, the nature of
       the defendant’s relationship to the victim, and the vulnerability of the victim
       because of age or other circumstance.
               There need not be a personal relationship of trust between the defendant and
       the victim. It is sufficient if a relationship of trust existed between the defendant
       and someone who entrusted the victim to the defendant’s care.

CP A at 107 (Instr. 37); CP J at 275 (Instr. 37).

       The jury found both Aimee and Justin guilty of criminal mistreatment in the second degree

by causing substantial bodily harm by withholding basic necessities of life. It also found Aimee

guilty of all three charged aggravating factors, and Justin guilty of two.

       The trial court sentenced Aimee to an exceptional sentence of 60 months of confinement.

The trial court entered findings of fact and conclusions of law for Aimee’s exceptional sentence:

Aimee’s conduct manifested deliberate cruelty, she knew or should have known M.A. was

particularly vulnerable or incapable of resistance, and she used her position of trust or confidence

to facilitate the commission of the crime. The trial court found that these substantial and

compelling reasons justified the exceptional sentence.

       The trial court sentenced Justin to an exceptional sentence of 40 months of confinement.

The trial court entered findings of fact and conclusions of law for Justin’s exceptional sentence:

Justin knew or should have known M.A. was particularly vulnerable or incapable of resistance,




                                                    10
46357-1-II / 46377-6-II


and he used his position of trust or confidence to facilitate the commission of the crime. The trial

court found that these substantial and compelling reasons justified the exceptional sentence.

         Aimee and Justin appeal.

                                            ANALYSIS

I.       ADMISSION OF REDACTED VERSION OF AIMEE’S INTERVIEW WITH DETECTIVE CATEY

         Justin argues that the trial court erred in admitting Aimee’s interview with Detective Catey

because the interview contained testimonial hearsay and violated his Sixth and Fourteenth

Amendment rights to confront witnesses.9 He argues that the statements inculpate him because

the use of plural pronouns like “we,” “us,” and “our” refer to him and Aimee and their joint role

as M.A.’s caretakers. We disagree.

         A.     Standard of Review

         We review alleged violations of the Confrontation Clause de novo. United States v.

Mayfield, 189 F.3d 895, 899 (9th Cir. 1999); United States v. Hoac, 990 F.2d 1099, 1105 (9th Cir.

1993).

         The Sixth Amendment to the United States Constitution states: “In all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against

him.” Under the confrontation clause, out-of-court testimonial statements by witnesses are barred

unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the

witnesses. Crawford, 541 U.S. at 54-55.




9
 Justin makes no separate legal argument relating to the Fourteenth Amendment; therefore, our
analysis is on the Sixth Amendment.


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46357-1-II / 46377-6-II


       B.      No Confrontation Clause Violation

       “[T]he United States Supreme Court held that the defendant was deprived of his

confrontation rights under the Sixth Amendment when he was incriminated by a pretrial statement

of a codefendant who did not take the stand at trial.” State v. Hoffman, 116 Wn.2d 51, 75, 804

P.2d 577 (1991) (citing Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d. 476

(1968)). But in Richardson v. Marsh, 481 U.S. 200, 208, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987),

the United States Supreme Court held that a confession redacted to omit all reference to the

codefendant fell outside Bruton’s prohibition because the statement was “not incriminating on its

face” and became incriminating “only when linked with evidence introduced later at trial (the

defendant’s own testimony).”

       Bruton applies to inculpatory statements.      391 U.S. at 135-36.      The Bruton Court

recognized the “powerfully incriminating” effect of the extrajudicial statements of a codefendant

“who stands accused side-by-side with the defendant.” 391 U.S. at 135-36. Not only are the

statements “devastating to the defendant, but their credibility is inevitably suspect.” Bruton, 391

U.S. at 135-36. Statements that do not incriminate a codefendant are not subject to the Bruton

rule. State v. Dent, 123 Wn.2d 467, 487, 869 P.2d 392 (1994).

       We have stated that a non-testifying codefendant’s statement violates the confrontation

clause unless certain criteria are met when redacting the statement. State v. Larry, 108 Wn. App.

894, 905, 34 P.3d 241 (2001). To fall outside the prohibition, “[r]edacted statements must be (1)

facially neutral, i.e., not identify the nontestifying defendant by name (Bruton[, 391 U.S. 123]);

(2) free of obvious deletions such as ‘blanks’ or ‘X’ (Gray [v. Maryland, 523 U.S. 185, 118 S.

Ct.1151, 140 L. Ed. 2d 294 (1998)]); and (3) accompanied by a limiting instruction (Richardson[,

481 U.S. 200]).” Larry, 108 Wn. App. at 905.



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46357-1-II / 46377-6-II


       Justin only challenged a few specific statements in his brief. We need not consider the

other instances from the interview because he did not properly raise them. RAP 10.3(a)(6). 10 In

reviewing the specific instances Justin cited in his brief, the use of the plural pronouns does not

involve inculpatory statements. For instance, Justin referenced a question by Detective Catey that

referred to both Justin and Aimee: “‘And when were they placed here with you?’” Br. of Appellant

at 9 (quoting Ex. 74). This question would not and did not provoke an incriminating response.

Many instances of the plural pronouns did not just refer to Justin and Aimee, but to the family as

a whole. For instance, another question by Detective Catey referred to the entire family and not

just Justin and Aimee: “‘Would the whole family eat together?’” Br. of Appellant at 9 (quoting

Ex. 74). Again, this question did not produce any inculpatory statements: Aimee responded “Um-

hm.” Ex. 74. Another example: “We all have dinner at the same time” and “when he moved in

with us, he was eating healthier.” Ex. 74. Eating together as a family is not inculpatory. Justin

also challenged both Detective Catey’s and Aimee’s use of the word “here” to refer to the Moses’s

household. Br. of Appellant at 10. Again, this information is not inculpatory and not prejudicial.




10
   Justin generally argues that throughout the interview, the plural pronouns used, e.g. “we,” “us,”
and “our” refer to him and Aimee. Except for a few examples, he does not cite to the specific parts
of the record he challenges. It is Justin’s obligation to point to the specific parts of the record he
claims constitutes error. RAP 10.3(a)(6). “Without adequate, cogent argument and briefing, [we
will] not consider an issue on appeal.” Schmidt v. Cornerstone Invs., Inc., 115 Wn.2d 148, 160,
795 P.2d 1143 (1990). Although appellate courts are not in business of searching the record to
discover the alleged deficiencies to which challenger may be referring, we have reviewed the entire
transcript. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 819, 828 P.2d 549 (1992).
Because our independent review of the record shows that not all of the plural pronouns specified
by Justin refer only to him and Aimee, we confine our decision to those few examples Justin raised
that cite to the record.



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46357-1-II / 46377-6-II


       Here, the redacted statements met the three criteria to fall outside the prohibition. First,

these statements were facially neutral in that none referred to Justin by name, and the plural

pronouns used in context could have referred to other members of the Moses family. Second, the

redactions did not leave obvious deletions. Third, the jury was instructed only to use Aimee’s

interview statements when considering the evidence against her, not against Justin. The trial court

specifically instructed the jury before the audio of the interview was played and again in instructing

the jury that they were “only [to] consider statements made by a defendant when evaluating the

evidence against that individual defendant.” RP (May 7, 2014) at 1595.

       This case is analogous to Richardson, 481 U.S. 200, because the jury could likely surmise

that certain parts of Aimee’s interview referenced Justin when combined with other evidence

introduced at trial, particularly that they were a married couple on trial as codefendants. We hold

that the statements made by Aimee were not facially incriminating of Justin because her statements

were a general denial of the abuse, and therefore, redactions of the statements were proper and

alleviated any confrontation clause issues.

       The admission of Aimee’s redacted statement did not violate Justin’s Sixth or Fourteenth

Amendment rights under the confrontation clause because the statements were not inculpatory,

they were properly redacted, and the trial court instructed the jury not to consider Aimee’s

statements when considering Justin’s charges.

II.    MOTIONS TO SEVER

       Justin argues that the trial court erred in denying his motions to sever because redacting

Aimee’s portion of their joint interview with Detective Catey did not eliminate all prejudice to him

when it was admitted at trial against Aimee. We disagree.




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46357-1-II / 46377-6-II


       A.      Standard of Review

       Separate trials are not favored in this State. Dent, 123 Wn.2d at 484; State v. Campbell,

78 Wn. App. 813, 819, 901 P.2d 1050 (1995). “Severance of trials is also discretionary with the

trial court.” Larry, 108 Wn. App. at 911. We review a trial court’s decision on a motion for

severance under CrR 4.4(c) for a manifest abuse of discretion. State v. Rodriguez, 163 Wn. App.

215, 228, 259 P.3d 1145 (2011). The defendant “must be able to point to specific prejudice” to

support a claim that the trial court abused its discretion.11 State v. Wood, 94 Wn. App. 94 Wn.

App. 636, 641, 972 P.2d 552 (1999).          “Defendants seeking severance have the burden of

demonstrating that a trial involving both counts would be so manifestly prejudicial as to outweigh

the concern for judicial economy.” State v. Bythrow, 114 Wn.2d 713, 718, 790 P.2d 154 (1990).

Severance and joinder are analyzed in the same manner. State v. Embry, 171 Wn. App. 714, 731,

287 P.3d 648 (2012).

       Specific prejudice may be demonstrated by showing:

       “(1) antagonistic defenses conflicting to the point of being irreconcilable and
       mutually exclusive; (2) a massive and complex quantity of evidence making it
       almost impossible for the jury to separate evidence as it related to each defendant
       when determining each defendant’s innocence or guilt; (3) a co-defendant’s
       statement inculpating the moving defendant; (4) or gross disparity in the weight of
       the evidence against the defendants.”

State v. Canedo-Astorga, 79 Wn. App. 518, 528, 903 P.2d 500 (1995) (quoting United States v.

Oglesby, 764 F.2d 1273, 1276 (7th Cir. 1985)) (citations omitted).




11
  In so far as Justin is arguing the failure to sever violated his right to confront witnesses, we have
addressed that issue in a previous section.


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        B.       The Trial Court Did Not Abuse Its Discretion

        “[A] motion to sever under CrR 4.4(b) addresses the issue of prejudice to the defendant

notwithstanding proper joinder.” State v. Gatalski, 40 Wn. App. 601, 606, 699 P.2d 804 (1985)

(footnote omitted). CrR 4.4(c), states in pertinent part:

        (1) A defendant’s motion for severance on the ground that an out-of-court statement
        of a codefendant referring to him is inadmissible against him shall be granted
        unless: . . .
                (ii) deletion of all references to the moving defendant will eliminate any
        prejudice to him from the admission of the statement.

            Defendants may be joined for trial, “[w]hen each of the defendants is charged with

accountability for each offense included.” CrR 4.3(b)(1). Here, the charges against Justin and

Aimee were connected in time, place, and occasion. The cross-admissibility of the evidence

supports their joint trial.

        When Justin made his motions to sever, the trial court properly analyzed the issues, took

appropriate steps to ensure fairness at trial, and instructed the jury to not consider Aimee’s

statements against Justin. Justin has failed to demonstrate any specific prejudice. The trial court

did not abuse its discretion in denying the motion to sever.

III.    ADMISSION OF CHILD HEARSAY

        Justin and Aimee argue that the trial court erred by admitting child hearsay because the

legislature did not intend RCW 9A.44.120 to apply to this type of criminal mistreatment case. We

disagree.

        A.       Standard of Review

        “Statutory interpretation involves questions of law that we review de novo.” State v.

Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005). “In construing a statute, the court’s objective

is to determine the legislature’s intent.” Jacobs, 154 Wn.2d at 600. “‘[I]f the statute’s meaning is



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plain on its face, then the court must give effect to that plain meaning as an expression of legislative

intent.’” Jacobs, 154 Wn.2d at 600 (quoting Dep’t of Ecology v. Campbell & Gwinn, LLC, 146

Wn.2d 1, 9-10, 43 P.3d 4 (2002)). “‘[W]e may discern the plain meaning of nontechnical statutory

terms from their dictionary definitions.’” State v. Kintz, 169 Wn.2d 537, 547, 238 P.3d 470 (2010)

(quoting State v. Cooper, 156 Wn.2d 475, 480, 128 P.3d 1234 (2006)). We review the trial court’s

decision to admit child hearsay evidence for an abuse of discretion. State v. Borboa, 157 Wn.2d

108, 121, 135 P.3d 469 (2006). “A trial court abuses its discretion ‘only when its decision is

manifestly unreasonable or is based on untenable reasons or grounds.’” Borboa, 157 Wn.2d at

121 (quoting State v. C.J., 148 Wn.2d 672, 686, 63 P.3d 765 (2003)).

        Hearsay statements of a child under the age of ten are admissible in a criminal case when

the statements describe sexual or physical abuse of the child, the court finds that the time, content,

and circumstances of the statements provide sufficient indicia of reliability, and the child testifies

at the proceedings. RCW 9A.44.120. When determining the reliability of child hearsay, the trial

court considers nine factors. State v. Ryan, 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984).

        B.      The Trial Court Properly Interpreted RCW 9A.44.120

        After a hearing, the trial court admitted the child hearsay evidence on tenable grounds. It

properly applied the Ryan factors. Nobody contests this aspect. Rather, Justin and Aimee contest

whether the statute permits the admission of child hearsay in this type of criminal mistreatment

case.

        RCW 9A.44.120 provides in pertinent part:

        A statement made by a child when under the age of ten . . . describing any act of
        physical abuse of the child by another that results in substantial bodily harm as
        defined by RCW 9A.04.110, not otherwise admissible by statute or court rule, is
        admissible in evidence in . . . criminal proceedings.

(Emphasis added.).


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       RCW 9A.44.120 allows for the admission of statements that describe physical abuse. The

issue in this case is whether the neglect of a child by withholding food and through other means

constitutes an “act of physical abuse.” See RCW 9A.44.120. Our legislature has defined “acted”

to include “omitted to act.” RCW 9A.04.110(1). It further defined an “omission” as a “failure to

act.” RCW 9A.04.110(14) In addition, Black’s Law Dictionary defines “abuse” as “physical or

mental maltreatment, often resulting in mental, emotional, sexual, or physical injury.” BLACK’S

LAW DICTIONARY 12 (10th ed. 2014).

       The legislature did not require an “affirmative” act, just any act that would cause substantial

bodily harm.     See RCW 9A.04.110(1), (4)(b).           An act of maltreatment that leads to

malnourishment, like the withholding of food, could satisfy the requirement because it is a physical

omission. These definitions clearly demonstrate that the failure to provide food, sustenance, and

care to a child are acts of physical abuse. Because these acts fall within the meaning of RCW

9A.44.120, the trial court properly interpreted the statute and did not abuse its discretion by

admitting the child hearsay statements.

IV.    SUSTAINING STATE’S OBJECTION REGARDING THE PRESUMPTION OF INNOCENCE

       Justin and Aimee argue that the trial court violated their right to the presumption of

innocence when it sustained the State’s objection during closing arguments to defense counsel’s

presumption of innocence argument. We disagree.

       A ruling on an objection during closing argument is an instructional error based on a legal

ruling that we review de novo. State v. Brett, 126 Wn.2d 136, 171, 892 P.2d 29 (1995). Jurors are

presumed to follow the court’s instructions. State v. Kalebaugh, 183 Wn.2d 578, 586, 355 P.3d

253 (2015). “Instructions must convey to the jury that the State bears the burden of proving every

essential element of a criminal offense beyond a reasonable doubt. State v. Bennett, 161 Wn.2d



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303, 307, 165 P.3d 1241 (2007). “[J]ury instructions must define reasonable doubt and clearly

communicate that the State carries the burden of proof.” Bennett, 161 Wn.2d at 307.

       The presumption of innocence is the “bedrock upon which the criminal justice system

stands.” Bennett, 161 Wn.2d at 315. “The presumption of innocence does not stop at the beginning

of deliberations; rather, it persists until the jury, after considering all the evidence and the

instructions, is satisfied the State has proved the charged crime beyond a reasonable doubt.” State

v. Evans, 163 Wn. App. 635, 643, 260 P.3d 934 (2011).

       Aimee and Justin argue that when the trial court sustained the prosecution’s objection in

the following exchange, it violated their presumption of innocence.

       [DEFENSE COUNSEL]: So then you next come to was there substantial bodily
       harm, and “substantial bodily harm” is defined in Instruction No. 26 and talks about
       substantial disfigurement, and I would contend that being thin is not the same as
       substantial disfigurement especially when you’re told, analyze the evidence while
       presuming their innocence. So take the assumption that thin and—
       [THE STATE]: Objection. That’s a misstatement of the law.
       [THE COURT]: Sustained.

RP (May 13, 2014) at 1987.

       The State argues that the presumption of innocence has no bearing on the legal or factual

issue of what constitutes “substantial disfigurement.” Br. of Resp’t at 22. We agree. The trial

court’s legal ruling on the objection did not violate the presumption of innocence.

       We also note that the court’s instructions to the jury correctly instructed it on the

presumption of innocence: “A defendant is presumed innocent. This presumption continues

throughout the entire trial unless during your deliberations you find it has been overcome by the

evidence beyond a reasonable doubt.” CP A at 73 (Instr. 3); CP J at 241 (Instr. 3).

       The trial court did not err.




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V.     AGGRAVATING FACTORS

       The jury found beyond a reasonable doubt that both Aimee and Justin knew or should have

known that M.A. was particularly vulnerable or incapable of resistance. Justin and Aimee argue

that insufficient evidence existed to support this finding. We disagree.

       A.      Standard of Review

       Washington courts may impose exceptional sentences outside the standard range if “there

are substantial and compelling reasons justifying an exceptional sentence.” RCW 9.94A.535.

Whenever an exceptional sentence is imposed, the court must state its reasons in written findings

of fact and conclusions of law. RCW 9.94A.535.

       To reverse a sentence which is outside the standard sentence range, the reviewing
       court must find: (a) Either that the reasons supplied by the sentencing court are not
       supported by the record which was before the judge or that those reasons do not
       justify a sentence outside the standard sentence range for that offense; or (b) that
       the sentence imposed was clearly excessive or clearly too lenient.

RCW 9.94A.585(4).

       Where the reviewing court is satisfied that the trial court would have imposed the same

sentence based upon one valid factor, it may uphold the exceptional sentence rather than

remanding for resentencing. State v. Jackson, 150 Wn.2d 251, 276, 76 P.3d 217 (2003). This rule

is particularly appropriate when the trial court expressly states that the same exceptional sentence

would be imposed based on any one of the aggravating factors standing alone. See State v. Nysta,

168 Wn. App. 30, 54, 275 P.3d 1162 (2012).

       The trial court’s written findings from Aimee and Justin’s sentencing stated that it would

have sentenced them both the same way even if the jury had only found one of the aggravating

factors. Therefore, we need only determine if substantial evidence supports one of the factors and

whether it justifies a sentence outside the standard range. Jackson, 150 Wn.2d at 276.



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       B.      Sufficient Evidence Supports Aggravating Factor of Particularly Vulnerable Victim

              The facts supporting an aggravating factor must be proved to a jury beyond
       a reasonable doubt. We use the same standard of review for the sufficiency of the
       evidence of an aggravating factor as we do for the sufficiency of the evidence of
       the elements of a crime. Under this standard, we review the evidence in the light
       most favorable to the State to determine whether any rational trier of fact could
       have found the presence of the aggravating circumstances beyond a reasonable
       doubt.

State v. Zigan, 166 Wn. App. 597, 601-02, 270 P.3d 625 (2012) (statute omitted) (citation omitted).

       “In order for the victim’s vulnerability to justify an exceptional sentence, the State must

show (1) that the defendant knew or should have known (2) of the victim’s particular vulnerability

and (3) that vulnerability must have been a substantial factor in the commission of the crime.”

State v. Suleiman, 158 Wn.2d 280, 291-92, 143 P.3d 795 (2006) (emphasis in original).

       M.A. was a five-year-old boy, who was completely dependent upon Aimee and Justin to

care for him, feed him, and assist in his education and growth. He could not attend school if not

taken there. M.A. went to live with Aimee and Justin after begin removed from a prior foster

placement. He could not live on his own. He was particularly vulnerable because of his needs. A

reasonable jury, when viewing the evidence in the light most favorable to the State, could find

beyond a reasonable doubt the aggravating factor of particular vulnerability. 12

VI.    CUMULATIVE EFFECT OF ERRORS

       Justin and Aimee argue that the combined effect of errors at trial was prejudicial, and

therefore, requires a new trial. We disagree.




12
  Because of this decision, we need not address the other aggravating factors. The trial court
found it would have imposed the same sentence even if only one aggravating factor existed.


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        The defendant bears the burden of proving an accumulation of error of sufficient magnitude

that retrial is necessary. In re Pers. Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835 (1994).

Where no prejudicial error is shown to have occurred, cumulative error cannot be said to have

deprived the defendant of a fair trial. State v. Stevens, 58 Wn. App. 478, 498, 794 P.2d 38 (1990).

Aimee and Justin’s claim of cumulative error fails.

VII.    APPELLATE COSTS

        Aimee and Justin have filed a supplemental brief raising the issue of whether or not they

should be held responsible for paying appellate costs. Because the State’s time for filing a cost

bill with us and serving a copy on the parties has not passed pursuant to RAP 14.4, we decline to

decide this issue at this time. If the State does request appellate costs, we will address the issue

after that occurs.

        We affirm.



                                                             Melnick, J.

We concur:



        Bjorgen, C.J.




        Maxa, J.




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