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                                                                                                2013 DEC 10      AM 9: 55




    IN THE COURT OF APPEALS OF THE STATE OF W

                                                DIVISION II

CITY OF VANCOUVER,                                        I                        No. 4361


                                    Respondent,


        MA



ALBERT MCCLURE,                                                         UNPUBLISHED OPINION




        HUNT, J —      Albert McClure appeals his district court jury trial conviction for stalking,

which   the   superior court     affirmed on    direct   appeal.     He argues that some of the trial court' s


remarks during its case summary for the jury venire were prejudicial unconstitutional comments

on the evidence. Holding that any error was harmless, we affirm.

                                                     FACTS


                                                  I. --
                                                      STALKING - - - - - - - - - - - -


        Between April and August 2010, Erika Hamilton worked at a Vancouver, Washington


Subway       restaurant,   which   Albert McClure        patronized     several      times    per   week.   On other


occasions, Hamilton observed McClure drive past the Subway, without coming inside. McClure

would usually come by the restaurant during the late evening, when Hamilton was the sole

employee.




        From the      outset,   McClure   was   flirtatious   with   Hamilton:       He asked whether she had a


boyfriend, told her that        she was attractive, commented         that   his   son would   think   she was   pretty,
No. 43682 -5 -II



and asked      for her   personal cell phone number.               She became alarmed when he asked whether she


had    ever   been "   stalked"   before.     Clerk'   s   Papers ( CP)     at   144.   Hamilton felt more alarmed and


frightened as these incidents multiplied, especially when she would find McClure waiting

outside     in the parking lot      almost an       hour   after   he had finished eating inside the           restaurant.   She


wrote    down McClure'       s    license   plate number and             took   a photograph of   his   car.    One night she


observed a car of the type that McClure owned follow her from the restaurant; she feared he was


following her       home.   On another occasion, she was " very shooken up" when she heard someone

walking outside of her house. CP at 150.

            Hamilton asked her employer to change her shift permanently so she could avoid

working       alone    during     those   periods     when      McClure usually frequented the                 restaurant;   her


employer refused. So Hamilton began closing the restaurant early; and she asked her grandfather

to come be with her at the restaurant when she was working there alone.

            Hamilton feared that her repeated rebuffs of McClure' s overtures would upset him and

that   he   would   become      aggressive or       hurt her.      One day, for example, he became angry when she

refused to go- out on       his boat      with-him.     - And after Hamilton closed the-restaurant on August 9,


she received a call on the restaurant' s business line from an unidentified man, who disguised his


voice and said that he had been thinking about her and would go crazy if he could not have her.

This call caused Hamilton to shake with fear; she was terrified. The next day Hamilton reported

the    incident to the      police     department.          Officer Sam Abdhala interviewed Hamilton at the


restaurant and observed           that. she   was   shaking     and "    genuinely   scared."   CP at 196.




                                                                    F)
No. 43682 -5 -II



                                                     II. PROCEDURE


             The City of Vancouver charged McClure with one count of stalking. He requested a jury

trial.      Before trial began, the Clark County District Court summarized the case to the jury venire

as follows:


               T] o explain why we' re all sort of gathered here together is the City of Vancouver
             has brought      a charge   forward   against     Albert McClure.   The charge against Mr.
             McClure is that of called stalking where it' s alleged in the period of time of April
             10th, 2010 to August 10th, 2010 without lawful authority he did intentionally and
             repeatedly harass or follow a person by the name of Erika Hamilton and so you
             understand again the nature of the case is that Ms. Hamilton works at a Subway
             sandwich      shop.   I think she was of age 17 at the time if I remember correctly and
             allegations are going to be and obviously get more specific as to the times that
             maybe as much as dozens of times he went into that particular store, chatted with
             her, asked her I guess for dating [ purposes] I think if she wanted to go on a date
             with him and at some point in time maybe even asked her if she' d ever been
             stalked   before.     So they' re going to get into a lot more details but that' s sort of
             what I' ll call the flavor of the case that she obviously felt uncomfortable and
             eventually notified the police and that ended up being charged with the offense of
             stalking.     Okay? And to that particular charge he' s entered a plea of not guilty.

CP     at   28 (   emphasis added).      McClure neither objected nor asked the trial court to instruct the

potential       jurors to disregard any      of   this summary.     Eventually the court empanelled a jury and

tried the case.-,


             Before closing arguments, the trial court instructed the jury that if it appeared he had

commented on the evidence during trial; he had not done so intentionally and that the jurors

should         disregard   such comments.        The trial court also instructed the jurors that ( 1) it was their


 duty to decide the facts of the case based only on evidence presented during trial and on their

role as the sole judge of the witnesses' credibility; and ( 2) the City had the burden to prove each

 element of the crime of stalking beyond a reasonable doubt, explaining that a reasonable doubt is

 one     for    which a reason      exists and    may   rise   from the   evidence   or   lack   of evidence.   The jury



                                                                3
No. 43682 -5 -II


convicted          McClure    of   stalking    as   charged.       McClure appealed to the Clark County Superior

Court under RALJ 1. 1( a).


                The superior court affirmed, ruling, in part, that the trial court' s statements were not

comments on the evidence. McClure sought discretionary review of the superior court' s decision

on multiple grounds.



                Our court commissioner granted discretionary review on the sole issue that satisfied RAP
           1—
2. 3( d)         whether two statements he identified from the trial court' s jury venire case summary

constituted prejudicial unconstitutional comments on                      the   evidence: (    1) that McClure had asked

                                                                                                                             2
Hamilton to            go    on    a   date;   and (   2)   that   McClure' s    actions    had   made    her " obviously "


uncomfortable.              As a result, the scope of this discretionary review is very narrow, and we

circumscribe our analysis accordingly.


                                                             ANALYSIS


                McClure argues that the district court' s oral description of the case for the jury venire

was a prejudicial unconstitutional comment on the evidence because ( 1) some statements implied

     the trialcourt believed the -
that -                           stalking- charge                    against   him   was   true; ( 2) the -court' s- comments - - -


tainted the entire trial; and ( 3) the City' s evidence was insufficient to overcome the resultant

presumed prejudice. These arguments fail.




1 In granting discretionary review, our commissioner noted that if the trial court' s case summary
for the jury venire was a comment on the evidence, then the superior court' s decision affirming
McClure'          s conviction would conflict with             the   following   cases: (    1) State v. Levy, 156 Wn.2d
 709, 719 -20, 723, 132 P. 3d 1076 ( 2006) ( comments on the evidence are presumed prejudicial);
 and ( 2) State v. Jackman, 156 Wn.2d 736, 743, 132 P. 3d 136 ( 2006) ( once defendant
 demonstrates that court commented on evidence, burden shifts to State to show lack of prejudice,
 unless record reflects defendant could not have been prejudiced).

 2CPat28.
No. 43682 -5 - II


                                    1. TRIAL COURT DID NOT COMMENT ON EVIDENCE


           The Washington State Constitution prohibits a judge from commenting on the evidence.

WASH. CONST.          art.   IV, § 16. A judge' s statement is a comment on the evidence if it conveys or


implies the       court' s opinion on         the   merits or an evaluation of a            disputed fact     or   issue.   State v.


Lane, 125 Wn.2d 825, 838, 889 P. 2d 929 ( 1995).                              In our view, taken in context, neither of the


two trial court statements that our court commissioner designated for our review were opinions

about     the    merits of    the   case or an evaluation of            the   evidence.   Rather, they merely summarized
                                                                                3
for the   jury pool    the    allegations      to   give   them   a "   flavor " of what the case would be about.


           For example, the trial court did not state as fact that McClure had asked Hamilton to go

on a date; rather, the trial court predicted:


            The] allegations are going to be and obviously get more specific as to the times
           that maybe as much as dozens of times he went into that particular store, chatted
           with her, asked her I guess for dating [ purposes] I think if she wanted to go on a
           date with him and at some point in time maybe even asked her if she' d ever been
           stalked before.


CP   at   28 (   emphasis added).           Similarly, the trial court did not state as fact that McClure' s actions

had made Hamilton " obviously" uncomfortable. Rather, the trial -
                                                                court was merely attempting to -

summarize the City' s allegations against McClure:

            So they' re going to get into a lot more details but that' s sort of what I' ll call the
           flavor of the case that she obviously felt uncomfortable and eventually notified the
           police and        that   ended   up   being     charged with       the   offense of   stalking.   Okay?     And

           to that particular charge he' s entered a plea of not guilty.

CP at 28 ( emphasis added).




 3CPat28.


                                                                        5
No. 43682 -5 -II


             The context of these statements demonstrates that the trial court was not intending to

express its opinion about McClure' s guilt.4 Rather it was explaining what it expected the case to

be about, educating the jury venire for the purpose of ferreting out potential foreknowledge of

the case or other factors that might cause individual members of the venire to be unable to sit as

fair   and    impartial jurors.    We hold, therefore, that, taken in context, these statements by the trial

court were not impermissible comments on the evidence.

                                                   II. HARMLESS ERROR


             Even if the trial court' s pretrial summary of the case arguably contained improper

comments on the evidence, we hold that they did not create reversible error. For purposes of this

part of our analysis, we presume without deciding that the trial court' s statements about

Hamilton' s obvious discomfort and McClure' s asking her on a date were prejudicial comments

on     the   evidence.     Lane, 125 Wn.2d         at   838.   The burden then shifts to the State to disprove this


presumption unless the record affirmatively shows the defendant could not have been prejudiced

by these comments. Lane, 125 Wn.2d at 838 -39. We hold that the City has met this burden.
                                         A Overwhelming Untainted Evidence----- -

             For the record to demonstrate harmless error, overwhelming untainted evidence must

have "` necessarily [ led] to        a   finding   of guilt. "'   Lane, 125 Wn.2d at 839 ( quoting State v. Guloy, .

 104 Wn.2d 412, 426, 705 P. 2d 1182 ( 1985),                      cent.   denied, 475 U. S. 1020 ( 1986)).   McClure


 argues       that ( 1)    the record cannot show overwhelming untainted evidence to support his


 4
     We note, from the perspective of hindsight on appellate review, that the alleged error here
 might have been avoided if the trial court had chosen different language to summarize the case
 for the     venire.      Additionally, we note that some trial courts ask the parties to prepare an agreed
 summary of the case that the court presents to the venire before the parties begin their
 questioning.


                                                                  RA
No. 43682 -5 -II



conviction because the trial court' s opening summary tainted each piece of evidence that

followed at trial; and ( 2) the City' s lack of proof about McClure' s knowledge of Hamilton' s fear

means that the jurors used the trial court' s comment to convict him. This argument fails.

             McClure already had full review of his district court trial by the superior court, sitting in

its    appellate        capacity.       His     argument      to    us,       however,      ignores the narrow scope of our


discretionary review, which is limited to whether the trial court' s introductory comments about

only       some evidence expected             to be   presented at        trial     were prejudicial.    Clearly, we. must review

the sufficiency of that evidence on which the trial court arguably commented to determine

whether          the   untainted evidence could overcome                      the   presumed prejudice.        But none of the trial


court' s introductory comments in any way alluded to McClure' s knowledge that his actions made

Hamilton feel "           uncomfortable, "       5 which is the only element of stalking that McClure actually

challenges that falls within the narrow scope of our commissioner' s grant of discretionary
             6
review.




5 CP at 28.

6
      To    convict     a person      of   stalking,   a   jury     must       find   that ( 1)   the defendant intentionally and
repeatedly harassed              or   repeatedly followed           another person; (        2) the person harassed or followed
was fearful that the stalker intended to injure the person and a reasonable person would
experience such fear under the circumstances; and ( 3) the stalker either intended to frighten, to
intimidate, or to harass the person or knew or reasonably should have known that the person was
 afraid, intimidated, or harassed. RCW 9A.46. 110( 1).
             McClure contends that the jury must have used the trial court' s comments to convict him
to    compensate          for the     alleged   lack   of   trial   evidence of         the third    element    of   stalking —that he

 knew, or reasonably should have known, that Hamilton was afraid of him. Br. of Appellant at 8-
 9.    But the remarks that our commissioner identified as potentially being comments on the
 evidence related only to the second element of stalkingthat Hamilton was fearful that McClure
 intended to injure her.                In    contrast,    neither     of      these two     remarks (   that McClure had asked
 Hamilton to go on a date or that Hamilton obviously felt uncomfortable) reference the third
 element,         McClure'   s   knowledge.        Because McClure' s argument would thus take us outside the

 narrow scope of our discretionary review here, we do not further consider it.

                                                                          7
No. 43682 -5 -II



         Independent of the trial court' s introductory remarks, the record contains overwhelming

uncontroverted evidence ' of the second element of stalking? at issue herethat as McClure' s

comments to Hamilton and McClure' s behavior increased in intensity, she became increasingly

frightened     of   him.     She testified about ( 1) her ongoing fear of McClure based on his repeated

overtures      and   other      actions,    especially     when         she   was     working   alone    late   at   night; (   2) the


measures .she took to avoid contact with him, including seeking permission to work a different

shift, closing the restaurant early, and asking her grandfather to stay with her while she closed

up; ( 3) his   anger when she refused             his invitation to           go out on   his boat   with   him; ( 4)   being afraid

that after she had rebuffed his many requests he would assault her or " take [ her] somewhere" if

she continued        to turn him down, CP            at   147; (   5) her belief that he was not " in the same reality"

and "   sinking," CP       at   147; (   6) her fear that McClure was following her home from work; and ( 7)

her terror after the late- evening phone call at work that prompted her call to the police. We hold

that this untainted evidence of Hamilton' s fear of McClure was more than sufficient to overcome


any presumed prejudice from the trial court' s comments during its pre -voire dire summary of

what -
     evidence it-expected the jury would hear - t trial. - - --
                                              a

                                B. Presumption that Jury Followed Court' s Instructions

          McClure'     s    argument       also    ignores ( 1)         the context in which the trial court made its

comments ( as we           previously discussed in          part    I   of   this   analysis section);   and ( 2) the well -
                                                                                                                           settled


presumption that the jury follows the court' s instructions, including here, its instruction to

disregard any        statements      it   made    that   might     be   construed as comments on            the   evidence.      Thus,




 7 See n.7, above.


                                                                        3
No. 43682 -5 -II



even if the above evidence were not sufficient to overcome the presumed prejudice, other


contextual factors also preclude reversal here.

       For example, an inadvertent, isolated comment followed by a curative instruction may

not prejudice a party. Dybdahl v. Genesco, Inc., 42 Wn. App. 486, 490 -91, 713 P. 2d 113 ( 1986)

 judge' s remark not prejudicial where jury instructed to disregard explicit or implied comments

on merits of evidence).           Prejudice against a criminal defendant may also be cured by a jury

instruction that the charges are mere accusations against him or her and that the jurors should

rely only on evidence produced at trial to determine guilt. State v. Sivins, 138 Wn. App. 52, 61,
155 P. 3d 982 ( 2007).       Once such a curative instruction is given, we presume the jury followed it.

Dybdahl, 42 Wn.       App.   at   491.   Such is the case here.


        The record shows that ( 1) the trial court presented its summary of the case to the entire

venire, before the final jurors were selected and sworn; and ( 2) the focus of this summary was a

broad preliminary overview of the allegations against McClure to acquaint the potential jurors

with the nature, place, and witnesses of the case in preparation for questioning about whether any

J urors had fore- knowledge         or reasons- why        the    could not -serve -impartially. -As we previously - - --

explained, the trial court consistently prefaced its summary statements with qualifying equivocal

phrases    like " maybe"   and "   I think" "[ the]      allegations [ will show]."    CP at 28. Moreover, the trial


court' s single mention of Hamilton' s fear was not focused on any specific piece of evidence or a

specific   jury   instruction;    rather,   it   was   in the   context of   explaining the "    details" that the City' s

case was    likely   going to involve,       offered     merely to   show "   the flavor   of   the   case"   alleged.   CP at


 28.




                                                                 9
No. 43682 -5 -II



          McClure cites no cases addressing prejudicial court comments made pretrial while

summarizing the           case   for   a pool of potential   jurors,    as was      the   situation   here.     On the contrary,

every case of which we are aware analyzes the potential prejudice of court comments about finite
pieces of evidence           or a   jury   instruction   made   during     trial.   See, e. g., Dybdahl, 42 Wn. App. at

490 (   court 's   comment about "`          startling figures "'     in witness' s testimony immediately after the

testimony did       not     convey     court' s opinion on   credibility); State v. Levy, 156 Wn.2d 709, 726, 132

P. 3d 1076 ( 2006) (         court' s " mere mention of a fact" in a jury instruction did not imply court' s

belief that fact was true).


          Furthermore, the trial court here expressly explained to the jury venire that the stalking

charge against       McClure        was    only   an allegation and    that   he had      pled not    guilty. At the close of


trial, the trial court again instructed the empanelled jury that ( 1) the burden was on the City to

prove    the   charges      beyond     a reasonable   doubt based     on   the   evidence elicited at         trial; (2)   they were

to ignore anything the court may have said that could be construed as a comment on the

evidence;      and (   3)    the jury was the sole decider of the facts of the case and the witnesses'

credibility.       We presume- that the jury followed the court' s instructions- and, therefore; conclude

that in convicting McClure, the jury did not use the trial court' s pretrial remarks about




                                                                 10
No. 43682 -5 -II


                                                                     8
Hamilton'   s   fear   and   his   having   asked   her for dates.       See Dybdahl, 42 Wn. App. at 490.

        We affirm.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




                                                                 Hunt, J.
I concur:




            J..




 8 Under the circumstances of this case, we further decline McClure' s implied invitation to be the
 first court to find prejudice and reversible error based on the trial court' s educational pretrial
 summary of the case for the entire venire.



                                                               11
No. 43682 -5 -II


        WOxswICK, J. (         dissenting) —         I disagree with the majority' s decision holding that the

trial judge' s comments were not improper comments on the evidence and that the improper

comments       on   the    evidence   are   harmless.     In my opinion, this case should be reversed and

remanded. Accordingly, I respectfully dissent.

                                      I. JUDICIAL COMMENT ON THE EVIDENCE


        The majority holds that the trial judge' s initial instructions to the jury venire are not

improper comments on the evidence because they merely summarized for the jury pool the

allegations    to   give   them a "   flavor"   of what   the   case    was about.    Majority   at   5.   I cannot agree


that the trial judge' s remarks are not a comment on the evidence.


        To constitute an improper comment on the evidence, the court need not have expressly

conveyed to the jury its personal feelings on an element of the offense; it is sufficient if these
                                        State        Levy, 156       Wn.2d 709, 721, 132 P. 3d 1076 ( 2006). "         A
feelings    are   merely implied.               v.




court' s statement constitutes a comment on the evidence ` if the court' s attitude toward the merits

of the case or the court' s evaluation relative to the disputed issue is inferable from the

statement. "'                                   App.- 52,
                    State -v. -Sivins, -138 Wn. -     -               583 155 -P.3d    982 ( 2007) (   emphasis added)




 quoting State       v.   Lane, 125 Wn.2d 825, 838, 889 P. 2d 929 ( 1995)).                A trial judge is prohibited


from making even implied comments on the evidence in order " to prevent the jury from being

unduly influenced by the court' s opinion regarding the credibility, weight, or sufficiency of the

evidence."        Sivins, 138 Wn. App. at 58 ( citing State v. Eisner, 95 Wn.2d 458, 462, 626 P.2d 10

  1981)).


            The majority holds that this trial judge did not comment on the evidence because he

 qualified   his    comments as "      allegations,"   or prefaced      them   by   saying, " I think."    I cannot agree




                                                                12
No. 43682 -5 -II



that by characterizing his comments as allegations, the trial judge avoided making an improper
comment on         the       evidence.   Here, the trial judge' s lengthy recitation of the facts went beyond

giving the jury a " flavor" of the case and implied to the jury that certain facts were true and that

Erika Hamilton'          s   testimony   was credible.       See Lane, 125 Wn.2d at 837 -38 ( instruction stating

the reason for witness' s sentence being reduced impermissibly -implied that witness' s testimony

as   a   whole was credible).            And the judge'      s statements    that he " thinks"        his comments may be

correct makes these comments more, not less, problematic, in that it directly conveys the judge' s

personal feelings about the case.


           The trial judge did not merely read the allegations from the information: Instead, the trial

judge provided the jury with an impromptu summary of the City of Vancouver' s ( City) case

against.Albert McClure which included references to disputed facts. For example, the trial judge

referenced McClure asking Erika Hamilton on a date and McClure asking her if she had ever

been      stalked.       Hamilton testified that McClure made these comments to her, but McClure


expressly denied             ever   making   such comments.       Therefore, the trial judge implied that disputed


facts had been proved and that Hamilton was a credible witness. -


           And in        an     even   more   egregious      comment,       the trial judge       stated   that "[ Hamilton]



obviously felt          uncomfortable."        Clerk'   s   Papers ( CP).   at   28 (      emphasis   added).   An essential


element of stalking is that the defendant knew or reasonably should know that the person was

afraid, intimidated, or harassed, and that the feeling of fear experienced by the person allegedly

being      stalked "     must be one that a reasonable person in the same situation would experience


under      all   the   circumstances."        RCW 9A.46. 110( 1)( b), (       c)(   ii).    By commenting that Hamilton

  obviously"           felt afraid, the trial judge stated as fact a critical, disputed element that was




                                                                 13
No. 43682 -5 -II



necessary to    prove    the State'         s   case.     In my opinion, this comment is also an impermissible

judicial comment on the evidence.


         Here, the trial judge referenced several disputed facts, implied that Hamilton was a

credible witness, announced his personal feelings about the case, and stated that an element of

the State' s   case    was "   obviously" true.                 I am not persuaded that the trial judge has avoided


making improper         comments           on    the     evidence      by     characterizing its      comments   as "   allegations"




establishing the " flavor"           of   the    case.    Majority       at    5.    Accordingly, I would hold that the trial

judge' s comments were improper comments on the evidence which violated article IV, section

16 of the Washington State Constitution.

                                                         II. HARMLESS ERROR


         The majority opinion also holds that even if the trial judge' s comments were improper

comments on      the   evidence,          they   were     harmless. For purposes of its harmless error analysis, the


majority must presume that the judge' s comments were an improper comment on the evidence

and, additionally, must presume that the improper comments were prejudicial. Levy, 156 Wn.2d

at   723.- The maj ority does         not       adequately       overcome           this - quired
                                                                                         re         presumption. -   Accordingly.-I- -

disagree.


         This is a " he said she said" case, not, as the majority states, a case with " overwhelming

uncontroverted        evidence."           Majority        at    8.     The majority' s opinion essentially . ignores the

presumption of prejudice that applies when determining whether judicial comments on the

evidence are    harmless. The majority appears to apply a sufficiency of the evidence standard and


 assumes    the truth    of    the   City' s      evidence.           In my opinion, the trial judge' s comments, which

 implied Hamilton        was     a    credible          witness,       tainted Hamilton'       s    testimony.   Because judicial




                                                                        14
No. 43682 -5 -II


comments on      the   evidence are presumed           to be   prejudicial, "   overwhelming untainted evidence"


must support     the defendant' s      conviction.     Lane, 125 Wn.2d          at   839 -40 ( emphasis   added).   Many

of the facts proving the .elements of stalking were contested; the jury was required to resolve

conflicts   between Hamilton' s         and   McClure'    s   testimony. Given the presumption of prejudice, I

cannot   consider      Hamilton'   s   testimony     to be    untainted   evidence.       Because the City relied on

Hamilton' s tainted testimony to prove several of the essential elements of stalking, there is not

overwhelming, untainted evidence supporting the jury' s verdict.

         To prove McClure committed the crime of stalking, the City was required to prove that

 1)   McClure     intentionally        and    repeatedly      harassed    or   repeatedly    followed Hamilton, ( 2)


Hamilton     was placed    in fear that McClure intended to injure her, ( 3) Hamilton' s fear must have


been " one that a reasonable person in the same situation would experience under all the


circumstances,"       and ( 4) McClure either ( a) intended to frighten, intimidate, or harass Hamilton;


or ( b) knew or reasonably should have known that Hamilton was afraid, intimidated, or harassed

even if McClure did not intend to frighten, intimidate, or harass Hamilton. RCW 9A.46. 1 I0( 1).

         T agree that there was overwhelming, untainted evidence establishing that Hamilton was -

actually    afraid.   The City presented evidence from Hamilton' s grandfather and the police officer

who responded         to her   complaint.      Both   witnesses     testified that    she appeared afraid.     However,



the City relied exclusively on tainted evidence to prove other elements of stalking including ( 1)
that McClure repeatedly followed               or   harassed her, ( 2) Hamilton' s fear was reasonable, and ( 3)


McClure knew or should have known that Hamilton was afraid, intimidated, or harassed.




                                                               15
No. 43682 -5 -II


A.        Repeatedly Followed or Harassed

          The trial judge' s comments affected the City' s evidence proving that McClure repeatedly

harassed    or    followed Hamilton.               Hamilton testified that McClure came into the Subway

restaurant almost every time that she was working and would stay in or around the store for long

periods    of   time     while   she    was    working.     She also testified that a car similar to McClure' s


followed her home one night and an unidentified person called her at the Subway making

comments        like " I' m going to      go   crazy if I   can'   t   have   you."   CP     at   150.    In contrast, McClure


testified that    he   never spent more         than approximately 15           minutes      in the     Subway.   McClure also


testified that he      was not     following     Hamilton       and    had    never   been to her house.          There was no


evidence that McClure was the individual who either was walking outside Hamilton' s house, or

who was the " unidentified man" who had called her on the restaurant' s business line.

          If the trial judge' s comments did not taint Hamilton' s testimony by implying she was a

credible witness, Hamilton' s testimony would be overwhelming evidence proving that McClure

repeatedly harassed         or   followed her.       And even though the trial judge implied that Hamilton' s


testimony       was - credible, _   I- would consider Hamilton' s testimony overwhelming - if - were
                                                                                              it

uncontroverted.          However, McClure' s testimony contradicted Hamilton' s testimony on every

point required to prove he repeatedly followed or. harassed Hamilton and, as a result, there was

not overwhelming, untainted evidence supporting the essential element of stalking that McClure

repeatedly followed or harassed Hamilton.

B.        Reasonable Fear


          The     City   was     also   required   to   prove   that Hamilton' s        fear      was    fear " that a reasonable


 person    in    the     same     situation     would     experience          under    all   the      circumstances."      RCW




                                                                 16
No. 43682 -5 - II


9A. 46. 110( 1)( b).         When the trial judge commented that Hamilton " obviously felt uncomfortable"

 CP    at   28),    he implied that ( 1) the facts Hamilton would testify to were true and ( 2) those facts

would " obviously" make any person feel afraid. No other witness testified that he or she would

feel   afraid under         the    same circumstances.   McClure testified that he visited the Subway for no

more than 15 minutes at a time and his conversations with Hamilton were limited to impersonal,

casual conversation while he ordered food.


            Hamilton' s untainted testimony could have been sufficient evidence to allow a reasonable'

        to find that                                          be    afraid under   those   circumstances.    However,
jury                         a reasonable    person   would




McClure testified to               circumstances under which no reasonable person would           be   afraid.   Without


Hamilton' s testimony, the City could not prove that a reasonable person would feel afraid under

the    circumstances.              Accordingly, there is not untainted evidence that establishes an essential

element of stalking.


C.          Knew or Should Have Known


            In addition, the trial judge' s comments tainted the evidence proving that McClure

reasonably          should                      Hamilton was
                               have known -that -                       afraid,    intimidated, - or harassed. - - RCW


9A.46. 1I0( 1)(       c)(   ii).   In addition to her other testimony, Hamilton testified that McClure asked

her if she had ever been stalked before, told her she was pretty, and asked for her personal cell

phone number.               Hamilton also testified that McClure had asked her out on a date and invited her

to     go   on     his boat.       Like other aspects of Hamilton' s testimony, this testimony was directly

 contradicted by McClure' s testimony. McClure testified that he never asked Hamilton on a date.

 Although he admitted that he made a passing comment about taking Hamilton on his boat, he did

 not wait for a response, and never got angry at her for not accompanying him on his boat.



                                                               17
No. 43682 -5 -II


McClure also testified that he engaged in limited casual conversation with Hamilton while she

was   serving him.      Moreover, Hamilton did not tell McClure to stop coming to .the restaurant.

Hamilton did     not   tell McClure that he      was   making her uneasy.           McClure denied knowing that

Hamilton was alarmed or frightened.


         If the facts to which Hamilton testified were true, a reasonable jury could find that

McClure knew       or    should     have known that he            was      frightening, intimidating, or harassing
            9
Hamilton.       But some of the trial judge' s comments directly implied that the facts Hamilton

testified to were true. For example, the trial judge commented that McClure asked Hamilton out

on a date, a fact which was disputed by McClure' s testimony. The City' s argument that McClure

should have known Hamilton felt afraid, intimidated, or harassed must have rested on the

assumption that a person should know that consistently engaging in inappropriate, overly

personal conversation with a stranger would            be    frightening, intimidating,         or   harassing.   The trial


judge' s comments. implied the existence of disputed facts which established that McClure did

engage   in overly     personal conversations with       Hamilton          while she was at work.         Therefore, the



City also relied - ntainted evidence to prove that McClure should have known that Hamilton was -
                 o
afraid, intimidated, or harassed.




9 It does not appear that the City argued below that McClure intended to frighten, intimidate, or
harass   Hamilton       or   that   he   knew    she   was       afraid,    intimidated,   or    harassed.        There   is
uncontroverted evidence in the record that Hamilton never told McClure he was upsetting her or
that she wanted him to leave her' alone. Lack of notice is not a defense to stalking if the alleged

stalker was intending to intimidate or harass, but there is no evidence in the record that McClure
intended to frighten, intimidate,        or   harass Hamilton. RCW 9A.46. 110( 2)( a).                  And because the
uncontroverted evidence in the record establishes that McClure did not know Hamilton was
 afraid, intimidated, or harassed, I limit my analysis to whether the trial judge' s comments tainted
the evidence proving that McClure should have known that Hamilton was afraid, intimidated, or
harassed.



                                                            18
No. 43682 -5 -II



         The majority' s analysis of the effect of the trial judge' s comments is too narrowly applied

to the .evidence     required     to   prove   the   essential   elements      of   stalking.   In my opinion, the trial

judge' s improper comments on the evidence tainted evidence necessary to prove several essential

elements of      stalking.   Accordingly, the trial judge' s improper comments on the evidence cannot

be considered harmless.

D.       Remedial Instruction


         Finally, the majority relies on the presumption that the jury followed the trial judge' s

instruction to disregard any implied            comments on           the   evidence.   I agree that prejudice resulting

from an isolated or inadvertent judicial comment on the evidence may be cured by an instruction

                  Sivins, 138 Wn.       App.         61 ( citing Eisner, 95 Wn.2d          at   463).   However, the trial
to the   jury.                                  at



judge'   s comments     in this   case were neither       isolated     nor   trivial.   Therefore, I do not believe they

could be cured by an instruction to the jury.

          For the above reasons, I disagree with the majority' s opinion holding that the trial judge' s

 comments in this case were not improper judicial comments on the evidence or that the trial


Judge' s comments were-harmless I would reverse McClure' s convictions and remand for further -
                                  -

 proceedings. Accordingly, I respectfully dissent.




                                                 Worswfck. C. J.




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