                                                                  FILED
                                                              OCTOBER 25, 2016
                                                          In the Office of the Clerk of Court
                                                         WA State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

STATE OF WASHINGTON,                          )         No. 32968-2-111
                                              )
                     Respondent,              )
                                              )
              v.                              )         UNPUBLISHED OPINION
                                              )
ERNEST GLASGOW BARELA,                        )
                                              )
                     Appellant.               )

       LAWRENCE-BERREY, A.CJ. -        Ernest Barela appeals his convictions for two

counts of second degree incest, one count of first degree child molestation, and two

counts of second degree child molestation. He argues the trial court erred in denying his

postjudgment motion for a new trial. He also asserts three other bases of error, and

argues cumulative error requires reversal. In affirming, we conclude the trial court did

not err in denying a new trial, and we reject Mr. Barela's other claims of error.

                                          FACTS

       When E.B. was six or seven years old, her father, Mr. Barela, went into her

bedroom and sat on her bed. He removed his shorts, placed E.B. on his lap, and hugged

her. For the next several years, Mr. Barela often touched E.B. inappropriately and in a
No. 32968-2-III
State v. Barela


sexual manner. E.B. estimated the number of these inappropriate touchings was in the

high hundreds. E.B. was unable to say whether actual penetration ever occurred. The last

inappropriate touching occurred on April 9, 2012, when E.B. was 12 years old. That

morning, Mr. Barela came into E.B.'s bedroom, undressed her, and put his penis between.

her thighs. After laying on top of E.B. for a few minutes, Mr. Barela pulled up his pants

and left.

       On April 11, 2012, E.B. was participating in youth group at a church in Yakima.

After the church service had ended, E.B. approached one of the youth leaders, Sydney

Mutch, and asked to speak to her in private. The two went into a side room, and E.B. told

Ms. Mutch that her dad had been molesting her. Ms. Mutch went and got the pastor's

wife, Miel Lindseth. Ms. Lindseth, Ms. Mutch, and E.B. then met in a side room and

E.B. shared the information again. Ms. Mutch then went and got E.B.'s mother, Michelle

Barela. E.B. and Mrs. Barela went into the side room, and E.B. told Mrs. Barela what

had happened to her. After talking at the church, Mrs. Barela and E.B. drove home.

       The next night, Mrs. Barela confronted Mr. Barela about E.B. 's allegations. Mrs.

Barela told Mr. Barela about what E.B. had disclosed and Mr. Barela said, "I've been

inappropriate with her." Report of Proceedings (RP) at 493. Mrs. Barela said, "How

could you," and Mr. Barela then said, "There was no sex." RP at 494.


                                            2
No. 32968-2-III
State v. Barela


       The next morning, Mrs. Barela took E.B. to the Yakima Police Department, where

Detective Chad Janis from the special assault unit interviewed her.

       The State charged Mr. Barela with first degree rape of a child, second degree rape

of a child, first degree child molestation, two counts of second degree child molestation,

two counts of first degree incest, and second degree incest.

       Mr. Barela moved in limine to exclude testimony from Detective Janis regarding

delayed reporting in child sex victims. The trial court ruled that it was appropriate for the

State to present some testimony regarding delayed reporting.

       Mr. Barela also moved to limit discussions during jury selection relating to delayed

reporting. Mr. Barela asked the trial court to limit these types of questions to those

necessary to uncover potential bias, and to exclude a "wholesale brainstorming session on

that." RP at 49. The trial court reasoned it was appropriate for the State to be able to

identify potential jurors who might or might not be receptive to the idea of delayed

reporting. The trial court somewhat equivocally ruled, "I'm going to allow it, but I'm not,

you know." RP at 53.

       The State moved in limine to allow testimony from Ms. Mutch regarding E.B.'s

disclosure under the "hue and cry" doctrine. Clerk's Papers (CP) at 26-28; RP at 77. The

trial court granted the State's motion over Mr. Barela's objection.



                                             3
No. 32968-2-III
State v. Barela


      During jury selection, the State asked the jury pool the following question:

      What if that child, say, delayed in the time when some of the things
      happened to her and the time when the case got investigated? Would you
      hold that delay of disclosing of telling against her?

RP at 245. One juror responded that he or she would not, because "You hear about it all

the time ... between the churches and daycares and stuff where stuff comes up years

later." RP at 245. Other jurors hypothesized about the possible reasons why a sexually

abused child might delay reporting.

      During the second round ofvoir dire, the State began questioning venire juror X.

Venire Juror X$tated he had previously been employed as a counselor at a long-term

treatment facility for severely emotionally disturbed children and teens who had been

physically and sexually abused. He stated he had worked there for nine years. The

following exchange then occurred:

             [Prosecutor]: And you heard me ask the question of other jurors
      regarding delay in disclosing abuse by a child.
             [Venire Juror X]: Yes.
             [Prosecutor]: Is that something that you ran across in your work?
             [Venire Juror X]: Absolutely, yes.
             [Prosecutor]: Did you find it common?
             [Venire Juror X]: Yes.
             [Prosecutor]: And, you know, it sounds like you've dealt with
         .       .
      various serious cases.
             [Venire Juror X]: Very, very serious cases, yes.
             [Prosecutor]: Okay. Were some of those over the course of months,
      years?

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No. 32968-2-111
State v. Barela


              [Venire Juror X]: Days and weeks.
              [Prosecutor]: Days and week.
              [Venire Juror X]: Regularly and often.
              [Prosecutor]: Tough work?
              [Venire Juror X]: Yes, sir. That's why I'm no longer ih it. Nine
       years was enough.

RP at 292-93.

       Trial commenced, and the State called Ms. Mutch. Ms. Mutch testified that after

youth group E.B. had asked to talk to her, and the two went into a storage room to talk.

Ms. Mutch then testified E.B. "told me that her dad had been molesting her." RP at 364.

       The State also called Mrs. Barela. Mrs. Barela testified about Mr. Barela's

admission that he had been inappropriate with E.B. She also testified that her relationship

with Mr. Barela had been rocky for a while. On cross-examination, Mrs. Barela agreed

that she was not happy well before her children were born. Defense counsel then asked,

"Because you had an affair within the first couple of years of your marriage, correct?"

RP at 512. The State objected and the court sustained the objection. Defense counsel did

not contest the court's ruling and moved on with another question.

      The State also called E.B. E.B. testified that she told Ms. Mutch that her father

had been sexually abusing her. She also testified that several weeks before disclosing the

abuse to Ms. Mutch, she had told a friend at school. She testified that she had thought




                                            5
No. 32968-2-III
State v. Barela


about telling someone for a while but had a lot of internal conflict, and did not know what

would happen or what people would think.

       The State called Detective Janis. Detective Janis testified that he had specialized

training in child abuse cases, specifically in interviewing child sex abuse victims. He

testified he had conducted hundreds of these interviews. After Detective Janis testified

about his interview with E.B., the State began questioning him on delayed disclosures.

Detective Janis testified that a delayed disclosure is when a person delays reporting abuse,

that a person can delay reporting anywhere from several days to years, and that a child

might delay disclosing in an intrafamilial abuse case. Mr. Barela objected, arguing that

E.B. testified regarding why she delayed reporting and Detective Janis's testimony was

therefore unnecessary. The trial court overruled Mr. Barela's objection, stating that it

would allow Detective Janis a limited amount of leeway in that regard.

       Detective Janis continued testifying that children delay reporting for a variety of

reasons-fear, dependence, loyalty, love, fear of not being believed, or because they

understand the negative consequences of reporting-and the reasons are unique to each

child. He testified a "triggering event" typically causes a child to disclose, which is

usually "a receptive person to listen in their life, and that could be a family member or

church member or school member, a friend." RP at 542. Detective Janis then testified


                                              6
No. 32968-2-III
State v. Barela


that he interviewed E.B., and that E.B. disclosed the abuse to church members and

ultimately her mother.

       Mr. Barela called Dr. Kirk Johnson. On cross-examination, Dr. Johnson testified

that

       [t]he vast majority of sexual abuse is never reported. And that abuse that is
       reported, there is frequently a substantial delay. And I think that that delay
       is much more common in intrafamilial abuse where the dynamics can be so
       complex and difficult for the child.

RP at 692. Dr. Johnson also testified that children delay disclosing because they are

afraid of not being believed, concerned of harm to the parent, concerned the family will

lose resources, or the child believing that it is his or her fault.

       After both parties rested, the trial court dismissed the first degree rape of a child

charge and submitted one of the counts of first degree incest to the jury as second degree

incest. The jury convicted Mr. Barela of first degree child molestation, second degree

child molestation, and second degree incest. The jury acquitted him of second degree

rape and first degree incest. After the trial, Mr. Barela moved the trial court to arrest

judgment and moved for a new trial based on many of the same arguments he now raises

on appeal.

       The trial court denied Mr. Barela's motion. With regard to the alleged tainting of

the jury pool, the trial court referenced Dr. Johnson's testimony that delayed disclosure

                                                7
No. 32968-2-III
State v. Barela


"is the norm and not the exception." RP at 926. The trial court reasoned that "whatever

[Venire Juror X] said pales in comparison to what-Dr. Johnson testified under oath

about his years of experience in this particular area that delayed disclosure is [the] norm

and not the exception to the norm." RP at 926. Thus, the court concluded that the

discussions regarding delayed reporting during jury selection did not affect the case's

outcome.

       Mr. Barela appeals.

                                         ANALYSIS

       A.     ALLEGED JURY TAINT DURING VOIR DIRE


       Mr. Barela argues that his right to a fair trial by an impartial jury was violated

because ofvenire jurors' statements about delayed reporting in child sex abuse cases. He

argues these statements tainted the entire jury venire and require reversal.

       The parties first dispute whether Mr. Barela preserved this issue for appellate

review. When an evidentiary ruling is pursuant to a motion in limine, the losing party is

deemed to have a standing objection and need not specifically object at trial to preserve

the issue for appeal. State v. Finch, 137 Wn.2d 792, 819-20, 975 P.2d 967 (1999).

However, "a party's objections to evidence made in their motion in limine are not

preserved for appeal if the 'trial court indicates that further objections at trial are required



                                               8
     No. 32968-2-III
     State v. Barela


     when making its ruling.'" Id. at 820 (quoting State v. Powell, 126 Wn.2d 244, 256, 893

     P.2d 615 (1995)).

            Here, Mr. Barela moved in limine to exclude a "brain-storming type of discussion

     of delayed reporting with potential jurors." CP at 129. The trial court determined that

     some inquiry into the issue would be permitted, but indicated it would sustain an

     objection if the inquiry went too far. Mr. Barela understood this to be the trial court's

     ruling. In his motion for a new trial, he argued:

                   During Voir Dire, in spite of the Court's ruling that only a limited
            inquiry into juror's opinions and idea regarding delayed reporting [would be
            permitted], the State repeatedly pressed the issue with numerous jurors.
            Finally, following an objection from the defense and a warning from the
            bench, the State, yet again, invited a juror, whose background made him
            obviously predisposed to believing children "victims" of child sexual abuse,
            to speculate upon the issue. As expected, this particular juror began a
            speech regarding his experience and "expertise" into children who report
            sexual abuse, saying that children never lie regarding such claims.

     CP at 117 (footnote omitted).

            After reviewing the record, we conclude the prosecutor's questions and the venire

     jurors' answers during the State's opening voir dire were limited and proper. Despite Mr.

     Barela's assertion in the quote above, he never objected during the State's opening voir

     dire. Also, on rebuttal voir dire, the dialogue between the prosecutor and Venire Juror X

     was likely improper. But because the trial court indicated in its pretrial ruling that it




II
                                                   9
No. 32968-2-III
State v. Barela


would sustain an objection if the inquiry went too far, Mr. Barela was required to object if

he wanted to preserve any claim of error. His failure to object waives his claim of error.

See Powell, 126 Wn.2d at 256.

       B.      EVIDENCE REGARDING E.B.'s MOTHER'S MARITAL INFIDELITY

       Mr. Barela argues the trial court erred when it excluded evidence relating to Mrs.

Barela' s marital infidelity.

       During cross-examination, defense counsel asked Mrs. Barela if she had an affair

within the first couple years of her marriage. The State objected and the trial court

sustained the State's objection. Defense counsel did not contest the court's ruling and

moved on with another question.

       When a trial court excludes evidence, ER 103(a)(2) requires the proponent of that

evidence to make an offer of proof in order to preserve the issue for appellate review.

Because Mr. Barela did not make an offer of proof as ER 103(a)(2) requires, he failed to

preserve this alleged error at the time it occurred. See Seattle-First Nat 'l Bank v. W.

Coast Rubber, Inc., 41 Wn. App. 604,609, 705 P.2d 800 (1985).

       Mr. Barela moved for a new trial based in part on the trial court excluding this

evidence. He therefore preserved for appellate review the trial court's denial of that

motion. But this does not help Mr. Barela. CrR 7.5(a) allows a trial court to grant a new



                                              10
No. 32968-2-III
State v. Barela


trial under eight circumstances, none of which apply to the trial court's exclusion of this

evidence. See CrR 7.5(1)-(8).

       C.      ALLEGED PROSECUTORIAL MISCONDUCT IN REBUTTAL ARGUMENT


       Mr. Barela argues the prosecutor committed misconduct during rebuttal argument

by (1) expressing a personal opinion as to guilt, (2) impugning defense counsel, and

(3) misstating the burden of proof.

       The prosecutorial misconduct inquiry consists of two prongs: first, whether the

prosecutor's comments were improper and, if so, whether the improper comments caused

prejudice. State v. Lindsay, 180 Wn.2d 423,430, 326 P.3d 125 (2014). However, when

the defendant fails to object to the prosecutor's conduct or request a curative instruction

at trial, the misconduct is reversible error only if the defendant shows the misconduct was

so flagrant and ill intentioned that an instruction could not have cured the resulting

prejudice. 1 Id.



       1
         The Lindsay court held that when the defense does not object to prosecutorial
misconduct but moves for a mistrial, the alleged error has been preserved and the
stringent "flagrant and ill intentioned" standard applicable to unpreserved claims does not
apply. Lindsay, 180 Wn.2d at 430-31, 440-42. In Lindsay, "defense counsel made a
motion for a mistrial due to prosecutorial misconduct directly following the prosecutor's
rebuttal closing argument." Id. at 430-31 ( emphasis added). Here, Mr. Barela only
objected to one instance of alleged prosecutorial misconduct during the State's closing
argument, and then moved for a new trial pursuant to CrR 7.5 after the jury found him
guilty. See RP at 877; CP at 98. The more stringent "flagrant and ill intentioned"

                                             11
No. 32968-2-III
State v. Barela


       This court reviews allegations of prosecutorial misconduct under an abuse of

discretion standard. Id. This court gives deference to the trial court's ruling because it is

in the best position to most effectively determine if the misconduct prejudiced the

defendant's right to a fair trial. State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239

(1997).

       In the context of closing arguments, the prosecutor has "' wide latitude in making

arguments to the jury and prosecutors are allowed to draw reasonable inferences from the

evidence.'" State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009) (quoting State v.

Gregory, 158 Wn.2d 759, 841, 147 P.3d 1201 (2006)). This court considers the

prosecutor's alleged improper conduct in the context of the total argument, the issues in

the case, the evidence addressed in the argument, and the jury instructions. State v.

Anderson, 153 Wn. App. 417,430,220 P.3d 1273 (2009).

              1.     Personal opinion on guilt

       A prosecutor cannot express a personal opinion as to a defendant's guilt or    a
witness's credibility, independent of the evidence actually in the case. Lindsay, 180

Wn.2d at 437; In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 706, 286 P.3d 673




standard therefore applies here. See State v. McKenzie, 157 Wn.2d 44, 50, 57, 134 P.3d
221 (2006) (applying "flagrant and ill intentioned" standard where defense counsel did

                                             12
No. 32968-2-III
State v. Barela


(2012). The use of personal pronouns can be misconduct when a prosecutor uses them to

vouch for witness veracity, suggest that the government has special knowledge of

evidence not presented to the jury, or appeal to the jury's passions. See generally State v.

Robinson, 189 Wn. App. 877, 894-95, 359 P.3d 874 (2015). However, their use is not

always misconduct, such as when the prosecutor uses them to marshal the evidence. Id.

       In the State's closing argument, the prosecutor recounted when Mrs. Barela

confronted Mr. Barela about E.B.'s allegations. The prosecutor argued that Mr. Barela

admitted to Mrs. Barela, "' I have been inappropriate with her,'" and then said, "' There

was no sex.'" RP at 812. The prosecutor argued this statement was Mr. Barela admitting

that he and E.B. had engaged in sexual activity, but did not have intercourse. During the

defense's closing argument, defense counsel argued that Mr. Barela had actually

responded to Mrs. Barela by saying, "'Yes, I've been inappropriate ... but it wasn't

sexual."' RP at 853 (emphasis added). On rebuttal, the prosecutor stated: "It wasn't

sexual. Where did that come from? Gosh, I didn't hear that. I didn't hear that at all."

RP at 877. Defense counsel objected and the trial court sustained the objection.

       However, the prosecutor's statement that "Gosh, I didn't hear that. I didn't hear

that at all" was not an improper opinion on Mr. Barela's guilt or Mrs. Barela's credibility.



not object during prosecutor's closing argument and then moved for a new trial pursuant

                                             13
No. 32968-2-III
State v. Barela


Nor was the prosecutor appealing to the jury's passions or suggesting that the State had

special knowledge of evidence not presented to the jury. The prosecutor was arguing that

defense counsel was misstating the evidence. While the prosecutor opined on what he

personally believed the evidence was, this is not the same as opining on Mr. Barela's guilt

or Mrs. Barela's credibility. The prosecutor's comment did not constitute misconduct.

              2.     Impugning defense counsel

       "A prosecutor can certainly argue that the evidence does not support the defense

theory." Lindsay, 180 Wn.2d at 431. However, a prosecutor must not impugn defense

counsel's role or integrity. Id. at 431-32. This severely damages an accused's

opportunity to present his or her case. Id. at 432. Statements that imply that only

prosecutors have an obligation to "see that justice is served" and that defense counsel

stand in the way of that justice are improper. State v. Gonzales, 111 Wn. App. 276, 283-

84, 45 P.3d 205 (2002).

       However, a prosecutor's statements impugning defense counsel must be fairly

egregious to require reversal under the stringent "flagrant and ill intentioned" standard.

In Negrete, the prosecutor stated during rebuttal that defense counsel was "' being paid to




to CrR 7 .5 after the verdict, alleging prosecutorial misconduct).

                                             14
No. 32968-2-III
State v. Barela


twist the words of the witnesses,'" which this court held was improper but not irreparably

prejudicial. State v. Negrete, 72 Wn. App. 62, 66-67, 863 P.2d 137 (1993).

       In Warren, the prosecutor argued that there were a"' number of

mischaracterizations'" in defense counsel's argument, and these were "' an example of

what people go through in a criminal justice system when they deal with defense

attorneys."' State v. Warren, 165 Wn.2d 17, 29, 195 P.3d 940 (2008). The prosecutor

also described defense counsel's argument as a'" classic example of taking these facts

and completely twisting them to their own benefit, and hoping that you are not smart

enough to figure out what in fact they are doing.'" Id. The court held that these

comments, while improper, were not irreparably prejudicial. Id. at 30-31.

       Similarly, in Thorgerson, the prosecutor argued during closing argument that,

'" The entire defense is sleight of hand. Look over here, but don't pay attention to there.

Pay attention to relatives that didn't testify that have nothing to do with the case ....

Don't pay attention to the evidence."' State v. Thorgerson, 172 Wn.2d 438, 451, 258

PJd 43 (2011) (alteration omitted). The court held that the comments, while improper,

likely did not alter the outcome of the case and an instruction could have cured the

prejudice. Id. at 452.




                                              15
No. 32968-2-III
State v. Barela


       Here, Mr. Barela argues that the prosecutor made two comments in rebuttal that

impugned defense counsel. The first is when the State responded to defense counsel's

suggestion that E.B. and Mrs. Barela had fabricated the story:

       Posturing, everybody's posturing; apparently, I am, too, posturing. Witness
       is posturing, Ms. Barela is posturing, [E.B.] is posturing. It's a big ruse
       we're pulling over on you, apparently. That's what the defense would have
       you believe ....
               . . . She came up with this because, "Gosh, you know, he made me
       do my homework too much. He wanted me to do swimming lessons. He
       was strict with me sometimes." Oh, really? Use your common sense and
       experience when you deal with children.

RP at 875-76. These comments, while sarcastic, were directed at the defense's

theory and not at defense counsel. The prosecutor was arguing that the inferences

from the evidence did not support the defense theory. These comments were not

improper.

       Mr. Barela also argues that the prosecutor impugned defense counsel when

he argued that:

              [Defense counsel] weaves his facts ....
              . . . Some things I have to talk about, because what the defense
       wants to do---and that's what they do. That's what happens-chip away,
       chip away, chip away; "Oh, and it never happened. She's lying"; chip
       away, chip away.




                                            16
No. 32968-2-III
State v. Barela


RP at 871-72. Mr. Barela did not object. Assuming without deciding that the remarks

impugned defense counsel, they were not so flagrant or ill intentioned so as to require

reversal.

               3.     Misstatement of the burden ofproof

        Mr. Barela also claims the prosecutor committed misconduct during closing

argument by misstating the burden of proof.

        As mentioned, a prosecutor has wide latitude to argue reasonable inferences from

the evidence. Fisher, 165 Wn.2d at 747. "However, it is improper for the prosecutor to

argue that the burden of proof rests with the defendant." Thorgerson, 172 Wn.2d at 453.

Shifting this burden is flagrant and ill intentioned misconduct. Glasmann, 175 Wn.2d at

713. "In essence, the State acts improperly when it mischaracterizes the standard as

requiring anything less than an abiding belief that the evidence presented establishes the

defendant's guilt beyond a reasonable doubt." State v. Feely, 192 Wn. App. 751, 762,

368 PJd 514, review denied, 185 Wn.2d 1042, 377 PJd 762 (2016).

        Mr. Barela argues the prosecutor misstated the burden of proof in rebuttal when he .

said,

        [This is] what you signed up to do, as tough as it is: to assess what came out
        of that chair, what was said to you, to assess the credibility. You must make
        reasonable doubt into some type of comfortable, clean picture. That's not
        the standard, abiding conviction is.

                                              17
No. 32968-2-III
State v. Barela


RP at 875 (emphasis added). Mr. Barela argues that the prosecutor told the jury that they

must form a "comfortable, clean picture" of reasonable doubt in order to acquit him.

       Importantly, this court examines prosecutors' statements in context. Anderson,

153 Wn. App. at 430. When examining this statement in the context of the defense's

closing argument, it is clear that the prosecutor was not telling the jury that it needed to

form a "comfortable, clean picture" of reasonable doubt. Defense counsel stated several

times during his closing argument that the jury members needed to have a "comfortable,

clear, picture in [their] mind[s] of what happened" before they convicted Mr. Barela.

RP at 845; see also RP at 840, 846. In this disputed comment, the prosecutor referenced

defense counsel's use of this phrase and then said, "That's not the standard, abiding

conviction is," which is the correct standard. See Feely, 192 Wn. App. at 762.

       Mr. Barela also argues the prosecutor misstated the burden of proof when he

argued that

       the State has put on evidence that overcomes this presumption. The type of
       evidence that overcomes the presumption of innocence. We put on
       evidence. Reasonable doubt is defined for-it's an abiding conviction
       (inaudible). Reasonable doubt, some reason, not any reason. It's not
       beyond any doubt. Read the instructions. If you have an abiding belief in
       the guilt of Mr. Barela based on evidence that's been provided to you, you
       must come back with guilty verdicts as to all the counts.




                                              18
No. 32968-2-III
State v. Barela


RP at 882 (emphasis added). Mr. Barela argues that the prosecutor's use of "some

reason" told the jury that it needed a reason to convict him. However, the

prosecutor was simply emphasizing to the jury that a doubt needed to be a

reasonable one, rather than just any doubt. The prosecutor's contemporaneous

references to the presumption of innocence and the "abiding belief' standard

reinforces that the prosecutor did not misstate the burden of proof here.

       We determine that none of the prosecutor's comments throughout closing

argument establish a basis for reversing Mr. Barela's convictions.

       D.      DETECTIVE JANIS'S TESTIMONY REGARDING DELAYED REPORTING


       Mr. Barela argues that the trial court erred when it allowed Detective Janis to

testify regarding delayed reporting in the State's case-in-chief. He argues Detective

Janis's testimony improperly vouched for and bolstered E.B.'s credibility and carried a

special aura of reliability due to his status as a police officer.

       "An expert may not offer an opinion on an ultimate issue of fact when it is based

solely on the expert's perception of the witness' truthfulness." State v. Alexander, 64 Wn.

App. 147,154,822 P.2d 1250 (1992). This invades the jury's exclusive function to

weigh the evidence and determine credibility. Id. However, a qualified expert is

competent to express an opinion on a proper subject even though he or she thereby


                                               19
No. 32968-2-III
State v. Barela


expresses an opinion on the ultimate fact to be found by the trier of fact. State v.

Kirkman, 159 Wn.2d 918,929, 155 P.3d 125 (2007). "The mere fact that the opinion of

an expert covers an issue which the jury has to pass upon does not call for automatic

exclusion." Id.

       A trial court has discretion to permit expert testimony tending to corroborate the

testimony of a witness whose credibility is in issue. State v. Holland, 77 Wn. App. 420,

427, 891 P.2d 49 (1995). "An expert's opinion that it is not uncommon for a sexual abuse

victim to delay reporting the abuse is appropriate when ... the credibility of the victim

has been put in issue." Id.; accord State v. Petrich, 101 Wn.2d 566, 575, 683 P.2d 173

( 1984) (where child failed to report sex abuse for eight months, expert could testify that

delayed reporting was common and that the length of the delay correlated with the nature

of the relationship with the perpetrator), overruled in part on other grounds by State v.

Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988), abrogated in part on other grounds by In

re Pers. Restraint of Stockwell, 179 Wn.2d 588, 316 P.3d 1007 (2014).

       E.B. 's credibility was the central issue in Mr. Barela's trial, and therefore the State

was justified in presenting expert testimony to corroborate her testimony. Mr. Barela

contends, however, that Detective Janis improperly vouched for and bolstered E.B. 's

credibility. But Detective Janis did not give an opinion, either directly or indirectly, on



                                              20
No. 32968-2-III
State v. Barela


Mr. Barela's guilt or E.B.'s credibility. Rather, he testified generally about what delayed

disclosures are, the reasons why they occur, and what causes children to eventually

disclose. The closest Detective Janis came to opining on this particular case as opposed

to delayed reporting in general was when he testified that "[t ]here are a variety of reasons

why somebody would delay .... For this particular case, it's an intrafamilial case or a

case that involves a family member." RP at 540-41. While this was an opinion as to why

E.B. delayed reporting, it was not an opinion that Mr. Barela was guilty, that he believed

E.B., or that E.B. was telling the truth. But even if this testimony was an improper

opinion on E.B.'s credibility, because Mr. Barela's own expert agreed with the detective,

there was no prejudice.

       The trial court did not abuse its discretion when it allowed Detective Janis to

testify about delayed reporting during the State's case-in-chief.

       E.     "HUE AND CRY" DOCTRINE

       Mr. Barela argues that the trial court erred in admitting testimony about E.B. 's

disclosure under the "hue and cry" doctrine because she initially disclosed the abuse to a

school friend and E.B. 's disclosure was not made in a timely manner.

       The "hue and cry" doctrine, also known as the "fact of complaint" rule, allows the

State in criminal sexual assault cases to present evidence that the victim complained to



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someone within a reasonable time after the assault. State v. Ferguson, 100 Wn.2d 131,

144, 667 P .2d 68 ( 1983 ). The rationale for this doctrine is to dispel the feudal inference

that a person who does not disclose shortly after being sexually assaulted must be

fabricating the story. State v. Bray, 23 Wn. App. 117, 121-22, 594 P.2d 1363 (1979).

"The evidence is not hearsay because it is introduced for the purpose of bolstering the

victim's credibility and is not substantive evidence of the crime." Id. at 121.

       For a disclosure to be admissible under the hue and cry doctrine, it must be made

within a reasonable amount of time after the assault. State v. Chenoweth, 188 Wn. App.

521,532,354 P.3d 13, review denied, 184 Wn.2d 1023, 361 P.3d 747 (2015); Alexander,

64 Wn. App. at 151 ("[T]his narrow exception allows only evidence establishing that a

complaint was timely made."). The Chenoweth court found that disclosures made nearly

one year later cannot reasonably be considered "timely" and were inadmissible under the

hue and cry doctrine. Chenoweth, 188 Wn. App. at 533; see also State v. Griffin, 43

Wash. 591,598, 86 P. 951 (1906) (complaint made six months after assault was not

sufficiently timely to be admissible under the hue and cry doctrine).

      Here, Ms. Mutch testified that E.B. "told me that her dad had been molesting her."

RP at 364. E.B. 's disclosure to Ms. Mutch was not of a recent event. Rather, her

disclosure concerned past conduct that had no temporal component. This does not fit


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within the hue and cry exception to the hearsay rule, which must concern a recent event.

For this reason, the trial court erred when it admitted the statement.

       However, evidentiary error is grounds for reversal only if, within reasonable

probabilities, the error affected the outcome of the trial. State v. Neal, 144 Wn.2d 600,

611, 30 P.3d 1255 (2001). "Improper admission of evidence constitutes harmless error if

the evidence is of minor significance in reference to the evidence as a whole." Id.

       E.B. testified at trial that she told Ms. Mutch that her dad had been molesting her.

Had Ms. Mutch's improper testimony not been allowed, the jury still would have heard

the same information, but through E.B. Mrs. Barela testified that she confronted her

husband after E.B.' s allegations, and he admitted that he had been inappropriate with E.B.

In light of the evidence as a whole, we conclude that Ms. Mutch's improper testimony

was only of minor significance, and reversal is not warranted.

       F.     CUMULATIVE ERROR


       Mr. Barela argues his conviction should be reversed based on cumulative error.

The cumulative error doctrine applies if there were several trial errors, none of which

standing alone is sufficient to warrant reversal, that when combined may have denied the

defendant a fair trial. State v. Greif!, 141 Wn.2d 910, 929, 10 P.3d 390 (2000); accord

Alexander, 64 Wn. App. at 158. Here, the only preserved error was the trial court's ruling



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admitting Ms. Mutch's statement under the hue and cry doctrine. Because Mr. Barela did

not preserve any other errors, there was no cumulative error.

       G.     APPELLATE COSTS


       In compliance with this court's June 2016 general order, Mr. Barela filed a

supplemental brief with appropriate argument, supported by a current statement of

financial circumstances, establishing his current and future inability to pay an award of

appellate costs. A majority of this panel denies the State an award of appellate costs.

      Affirmed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.




WE CONCUR:




                                          Pennell, J.




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