          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON,                     )      No. 77945-1-I

                      Respondent,
                                             )      DIVISION ONE
                      v.

RICKY DESHAWN KING,                          )      UNPUBLISHED OPINION
                                             )
                      Respondent.            )      FILED: June 3, 2019


       MANN, A.C.J.   —    Ricky King was convicted of rape of a child in the third degree.

He asserts that the trial court erred by admitting hearsay evidence and that the

prosecutor committed misconduct during closing arguments. An evidentiary error only

warrants reversal when it materially affects the outcome of trial. Here, the hearsay

evidence did not materially affect the outcome of King’s trial because the implication

that he asserts caused him prejudice was already present through the nonhearsay

portion of the testimony. Further, the prosecutor did not commit misconduct because

his arguments were fair interpretations of the evidence. We affirm.



      In 2013, King’s great aunt and great grandmother died within a few weeks of

each other. Both funerals were held in Portland, Oregon, necessitating King’s family to
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travel from the Seattle, Washington area to Portland, Oregon. King attended both

funerals; King’s then 15-year-old cousin, E.K., did not, though her parents did. E.K.’s

parents left her home with her older brother.

           While E.K.’s parents were away at one of the funerals, E.K. was in her bedroom

when King knocked on the front door. E.K. answered the door and King explained that

he was looking for a car part from her father. E.K. told King that the part was probably

in the back shed, then closed the door and went back to her room. Soon after, she

heard the door open again and saw King standing in the hallway. King then entered

E.K.’s bedroom, pushed her onto the bed, and raped her while she attempted to fight

him off. After King raped E.K., he took pictures of her naked body “because he want[ed]

to remember [the event].” King told E.K. that if she told anyone no one would believe

her and his motorcycle club brothers had his back anyway. King also told E.K. that he

was going to start texting her and demanded that she text him back.

           E.K. told no one about this incident for some time. She was sad, angry, in pain,

and felt dirty. She explained that she was embarrassed and “did [not] want to talk to

anybody about it.” Then a few months after the rape occurred, E.K. told her older sister,

Patrice Dunmore, what happened. Dunmore told E.K. that she had also been sexually

assaulted when she was younger but that no one believed her when she told them.

       About a year after the rape, E.K. had a panic attack while in the car with her

other older sister, Zakeea Sykes, after Sykes mentioned the fictional character ‘Ricky

Bobby.’1 This eventually led to E.K. telling Sykes about the rape. E.K. told Sykes

“basically.    .   .   everything” that happened, “She told me that she had been raped by


       1 Ricky Bobby is a character from the popular movie ‘Talladega Nights: The Ballad of Ricky
Bobby.’ ~ https://www.imdb.com/title/tt0415306/plotsummary (last visited April 30, 2019).
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 No. 77945-1-1/3

Ricky.” Sykes told E.K. that she needed to tell her parents, and if E.K. did not, Sykes

would.

         On January 23, 2015—about a week after E.K. told Sykes—E.K. told her mother

and father what King had done. E.K.’s father called the police. Seattle Police Officer

Philip Ocker responded and took a statement from E.K. Detective Jeffrey Spong

followed up with E.K. on January 29, 2015, and took a recorded statement from E.K.

about the incident.

         The State charged King by information with rape of a child in the third degree.

The trial court held a jury trial over four days in November 2017. At trial, the State

called eight witnesses: E.K.’s mother, father, and grandmother (Frank, Catreece, and

Gloria King, respectively) E.K., E.K.’s two sisters (Dunmore and Sykes), Detective

Spong, and Officer Ocker. King’s case consisted solely of King’s father, Anthony King.

King did not testify.

         The jury found King guilty of rape of a child in the third degree. The trial court

sentenced King to 60 months, to run consecutive to the unrelated charge for which King

was already in prison. King appeals.



         King argues that the trial court erred in admitting hearsay testimony by Sykes

and that this error was substantially likely to affect the outcome of the trial. The State

conceded that the trial court erred by admitting inadmissible hearsay evidence but

contends that this error was harmless. We agree with the State.

       During Sykes’s testimony, she described an incident that occurred years prior

involving King:


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 No. 77945-1 -1/4

                        I had probably been home for about an hour after school. and                     .   .


                me and my boyfriend were watching a movie. And you know, [King] came
                yelling my name, [“]Are you home, are you home?[”] And I was like,
                {“]Yeah, what are you doing here?{”] And he was like, [“]Well, your mom
                and dad said to come check on you.{”] And I was like, [“]I just talked to my
                mom and dad.[”] Like, [“]No need for you to come check on me.[”]
                       And then he tried to come into the door into my room            And I was
                                                                                             .   .   .


                like      [“JI don’t need you down here[”]
                          .   .   .                            .1 was like, [“JI can call my dad
                                                                    .   .   .


                right now.[”] And he kind of, I think, stood there for a second. And then I
                guess when he realized I was serious because I got my cell phone out, he
                left.
The prosecutor then asked: “Did you ever find out if your parents had sent him to go

check on you?” The defense objected because this statement ‘refers to hearsay[,}” but

the trial court overruled the objection and allowed Sykes to respond: “I later asked

them    .       .    .   and they were like, [‘]Well, we didn’t ask him to come.[’]”

                Both parties agree that the trial court erred by allowing Sykes to answer this

question because the answer was inadmissible hearsay. But an evidentiary error such

as this only requires reversal if “within reasonable probabilities, the outcome of the trial

would have been materially affected had the error not occurred.” State v. Gonzalez-

Gonzalez, 193 Wn. App. 683, 689, 370 P.3d 989 (2016). An error is harmless when it is

of minor significance within the context of the entire trial. State v. Barry, 183 Wn.2d

297, 317-1 8, 352 P.3d 161 (2015).

            King asserts that this hearsay evidence prejudiced him because it painted King

as a liar who was trying to gain entry into a teenage girl’s bedroom when her parents

were not home.2 We disagree with King’s characterization of the hearsay evidence. It

was the admissible portion of Sykes’s testimony that painted King as an individual who



            2       To the extent that King also argues that Sykes’s entire account of this incident was
impermissible character evidence which should have been excluded under ER 404(b), we decline to
reach this argument as King raised it for the first time on appeal and it is not a manifest error affecting a
constitutional right. RAP 2.5(a); State v. O’Hara, 167 Wn.2d 91, 97-98, 217 P.3d 756 (2009).

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No. 77945-1-1/5

was trying to gain entry into a teenage girl’s bedroom while her parents were away, not

the inadmissible hearsay portion. The damaging part of this testimony, therefore, was

King’s actions—the admissible portion of the testimony—not the implication that King

lied—the hearsay portion of the testimony.

          Further, the admissible portion of Sykes’s testimony already heavily implied that

King was lying about why he was there. Sykes explained that she had just spoken to

her parents on the phone, which indicated that there was no reason for them to send

King to check on her, and King refused to leave until Sykes took out her cellphone to

call her parents. The hearsay evidence simply reinforced the implication that was

already present from the admissible portion of Sykes’s testimony.

          Therefore, we believe that within reasonable probabilities the outcome of the trial

was not materially affected by the trial court’s error. Gonzalez-Gonzalez, 193 Wn. App.

at 689.

                                               III.

          King next contends that the prosecutor committed misconduct during his closing

argument by arguing facts not in evidence. We disagree.

          “To prevail on a claim of prosecutorial misconduct, a defendant must show that

in the context of the record and all of the circumstances of the trial, the prosecutor’s

conduct was both improper and prejudicial.” State v. Pinson, 183 Wn. App. 411, 416,

333 P.3d 528 (2014) (citing In re Pers. Restraint of Glassman, 175 Wn.2d 696, 704, 286

P.3d 673 (2012) (plurality opinion)). For example, a prosecutor cannot invite the jury to

decide a case based on evidence outside of the record. State v. Pierce, 169 Wn. App.

533, 553, 280 P.3d (2012). But prosecutors are given “some latitude to argue facts and


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No. 77945-1-1/6

inferences from the evidence.” State v. Jones, 144 Wn. App. 284, 293, 183 P.3d 307

(2008) (internal citation omitted). Further, “[w]hen the defendant fails to object to the

challenged portions of the prosecutor’s argument, he is deemed to have waived any

error unless the prosecutor’s misconduct was so flagrant and ill intentioned that an

instruction could not have cured the resulting prejudice.” Pinson, 183 Wn. App. at 416

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

       King contends that three different comments made by the prosecutor constituted

misconduct because they were based on evidence outside the record. First, the

prosecutor argued that E.K. made consistent statements about the rape to numerous

people: “The same details that she was able to give to her sisters, her mother, Officer

Ocker, Detective Spong, the defense attorney in an interview, and then, ultimately, to all

of you.” Then, he added that E.K. “provided the same details to [Sykes] that you heard

in this court.” Finally, in rebuttal, the prosecutor argued “She’s never changed her story.

Her story has been consistent from the first time she told [Dunmore] about it, and her

story is reasonable, and her story is true.”

       These comments did not constitute prosecutorial misconduct because they were

within the latitude given to prosecutors to argue facts and inferences from the evidence.

Jones, 144 Wn. App. at 293. The State’s primary evidence, below, was E.K.’s

testimony. After describing, in detail, how King had raped her, E.K. explained what she

told others about the rape. First, E.K. told Dunmore that King had raped her. Then she

told Sykes. When the prosecutor asked EK. “what did you tell [Sykes] about what

Ricky did to you?” she responded “I basically told her everything.” The prosecutor




                                               -6-
No. 77945-1-1/7

confirmed, “What you just told the jury earlier this morning?” To which E.K. responded

 ‘Yes.”

          E.K. then told her mother what happened. The prosecutor asked “what did you

tell your mom?” E.K. responded “I told her what happened.” The prosecutor, again,

confirmed “The same details that you told earlier?” And E.K. answered “Yes.” E.K.

then confirmed that she told the same details to Officer Ocker and Detective Spong.

          On redirect examination, the prosecutor confirmed with even more detail what

E.K. told Detective Spong by having E.K. read portions of Detective Spong’s interview

transcript:

          [E.K., reading the transcript:] I accidentally told my sister so she said I
          have two weeks to tell my parents or she would.     .



          And then I was like kind of curious why he was here why he was in
          there .  And he pushed me once and then I fell back on my bed, and I
                    .   .


          thought he was playing, so I pushed him back. And then he pushed me on
          my bed and grabbed my arm.       .



          And then he put it above my head and his leg was on top of one of my
          legs, so I got kind of scared and I thought he was going to hit me or
          something. So I started trying to move, and he grabbed my other arm and
          put it above my head too.   .



          [State:] And what you told the detectives that day, was that the same thing
          that you told the police officer that first came to your house?   .



          [E.K.] yeah, I’m pretty sure what I told them is what I had told the officer
          that came out to my house that day.

          Therefore, in arguing that E.K. had not changed her story, the State was not

asking the jury to consider evidence outside of the record. Instead, the State was

arguing a reasonable inference from E.K.’s testimony. These comments were within the

latitude given to prosecutors to argue facts and inferences from the evidence. Jones,

144 Wn. App. at 293. Further, since King did not object to these arguments below, they



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 No. 77945-1-1/8

were not so flagrant and ill intentioned as to cause prejudice to the defendant that could

 not have been cured by instructing the jury. Pinson, 183 Wn. App. at 41 6.~

                                                    IV.

         Finally, King argues that the cumulative effect of the errors below violated his

right to a fair trial. Because the only error that occurred below—the trial court allowing

Sykes to testify as to inadmissible hearsay evidence—was harmless, King was

provided a fair trial.

         We affirm.




WE CONCUR:




 CL~
                                                                       .7,,’




        ~ The trial court instructed the jury that “[t]he lawyers’ remarks, statements, and arguments are
intended to help you understand the evidence and apply the law. It is important, however, for you to
remember that the lawyers’ statements are not evidence.    .   .   You must disregard any remark statement
                                                                   .

or argument that is not supported by the evidence or the law in my instructions.”
                                                   -8-
