                                                                                           Filed
                                                                                     Washington State
                                                                                     Court of Appeals
                                                                                      Division Two

                                                                                      January 8, 2019



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                          No. 50446-4-II

                        Respondent,

         v.

    CARL LEE DOMINGUE,                                      UNPUBLISHED OPINION

                        Appellant.


        SUTTON, J. — Carl Lee Domingue appeals his conviction for first degree child molestation

following a jury trial. Domingue argues that the State committed prosecutorial misconduct during

closing argument and the trial court improperly commented on the evidence by issuing an

instruction that the alleged victim’s testimony need not be corroborated in order to convict.

Because the State’s comment during closing argument was not improper and the non-corroboration

instruction did not constitute an improper comment on the evidence, we hold that Domingue’s

claims fail and affirm his conviction.

                                            FACTS

        On October 21, 2015, the State charged Domingue with one count of first degree child

molestation, alleging that Domingue made sexual contact with an 11 year old girl, K.W.1




1
  We use initials to protect the witness’s identity. General Order 2011-1 of Division II,
In Re The Use Of Initials Or Pseudonyms For Child Witnesses In Sex Crime Cases, available at:
http://www.courts.wa.gov/appellate_trial_courts/.
No. 50446-4-II


       At a jury trial, K.W., who was 13 years old at the time of trial, testified that around 3:00

A.M. one day in August of 2015, she woke up on her living room couch to discover Domingue with

his hand up her shorts touching her private parts. K.W. testified that she saw Domingue’s face lit

up from the television. K.W. testified that after she woke up, Domingue “sped walked” out the

front door and she went to tell her mom what happened. 2 Verbatim Report of Proceedings (VRP)

at 71-72.

       K.W.’s mother, Thaieka Anderson, also testified at trial. Anderson testified that earlier on

the night in question, she had smoked marijuana with Domingue and another family friend.

Anderson testified that she woke up to K.W. crying to her and saying, “Mommy, Carl touched

me.” 2 VRP at 130.

       Domingue testified in his own defense. Domingue testified that on the day and night in

question he smoked marijuana, drank alcohol, and consumed cocaine. Domingue denied ever

touching K.W.

       Over Domingue’s objection, the trial court instructed the jury:

               In order to convict a person of child molestation in the first degree, as
       defined in these instructions, it shall not be necessary that the testimony of the
       alleged victim be corroborated. The jury is to decide all questions of witness
       credibility.

Clerk’s Papers (CP) at 60.

       During closing arguments, the State focused on K.W.’s credibility.                The State

acknowledged that the case essentially came down to a he-said-she-said determination. The State

pointed out that K.W. was the only witness from the night in question who had not consumed any

controlled substances and argued that it meant that K.W.’s ability to recall the events of the night

was better than the other witnesses. The State continued:


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No. 50446-4-II


       [K.W.]’s a straight A student, who came home that evening, laid down on the couch
       and fell asleep to the Disney channel. What bias does she have? Her and the
       defendant got along just fine.

                There’s really only two possibilities. One, she’s making it up; or two, she’s
       telling the truth.

RP (4-6-17) 441.

       The jury found Domingue guilty. Domingue appeals his conviction.

                                           ANALYSIS

                                I. PROSECUTORIAL MISCONDUCT

       Domingue argues that the State committed prosecutorial misconduct during its closing

argument when it stated, “There’s really only two possibilities. One, she’s making it up; or two,

she’s telling the truth.” Br. of Appellant at18. Because the State’s comment did not misrepresent

the jury’s burden of proof, the comment was not improper and thus, we hold that Domingue’s

prosecutorial misconduct claim fails.

       To prevail on his prosecutorial misconduct claim, Domingue must demonstrate that, in the

context of the entire record and trial circumstances, the prosecutor's conduct was both improper

and prejudicial. State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011). To demonstrate

prejudice, Domingue must show a substantial likelihood that the improper conduct affected the

verdict. Thorgerson, 172 Wn.2d at 442–43. Because Domingue did not object to the alleged

misconduct at trial, he must also show that any misconduct was so flagrant and ill intentioned that

any resulting prejudice could not have been cured by a jury instruction. Thorgerson, 172 Wn.2d

at 443. We review a prosecutor's comments at closing in the context of the entire argument, the

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

v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006). “The State has wide latitude in drawing


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No. 50446-4-II


and expressing reasonable inferences from the evidence, including inferences about credibility.”

State v. Rodriguez-Perez, 1 Wn. App.2d 448, 458, 406 P.3d 658 (2017).

       On appeal, Domingue characterizes the State’s comment during closing argument as

presenting the jury with a false choice—that they could believe K.W. and convict Domingue or

believe she was making up her story and acquit him. Domingue likens this case to State v. Miles,

139 Wn. App. 879, 890, 162 P.3d 1169 (2007), which held that the prosecutor committed

misconduct when it told jurors that they could find Miles not guilty only if they believed his

evidence. Domingue also likens this case to State v. Fleming, 83 Wn. App. 209, 213-16, 921 P.2d

1076 (1996), which held that the prosecutor committed misconduct when he told the jury that in

order to acquit Fleming it must believe that the State’s witnesses are lying or mistaken. However,

this case is distinguishable from Miles and Fleming in that, here, the State did not misrepresent the

role of the jury and burden of proof. Rather, the State’s comment related entirely to the State’s

argument on K.W.’s credibility. The State was arguing that K.W. was a credible witness,

referencing her sobriety and lack of motive to lie. The State’s comment did not misrepresent its

burden of proof and thus, was not improper. As a result, we hold that the State did not commit

prosecutorial misconduct.

                              II. NONCORROBORATION INSTRUCTION

       Domingue also argues that the trial court’s noncorroboration instruction constituted an

impermissible comment on the evidence. We disagree.

       Article 4, section 16, of the Washington Constitution provides, “Judges shall not charge

juries with respect to matters of fact, nor comment thereon, but shall declare the law.” Const. art.

4, § 16. This constitutional provision prohibits a judge from conveying to the jury his personal



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No. 50446-4-II


opinion regarding the merits of the case or a particular issue within the case. State v. Theroff, 95

Wn.2d 385, 388–89, 622 P.2d 1240 (1980). The prohibition is intended to prevent a trial judge’s

opinion from influencing the jury. State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995). We

review whether a jury instruction is legally correct de novo. State v. Chenoweth, 188 Wn. App.

521, 535, 354 P.3d 13 (2015). “‘A jury instruction is not an impermissible comment on the

evidence when sufficient evidence supports it and the instruction is an accurate statement of the

law.’” Chenoweth, 188 Wn. App. at 535 (quoting State v. Johnson, 152 Wn. App. 924, 935, 219

P.3d 958 (2009)).

       Here, the noncorroboration instruction mirrored RCW 9A.44.020(1), which provides: “In

order to convict a person of any crime defined in this chapter[,] it shall not be necessary that the

testimony of the alleged victim be corroborated.” Further, Washington case law has repeatedly

upheld the propriety of noncorroboration instructions. See State v. Clayton, 32 Wn.2d 571, 573-

74, 202 P.2d 922 (1949); State v. Malone, 20 Wn. App. 712, 714-15, 582 P.2d 883 (1978). In

2005, we held that a nearly identical jury instruction correctly stated the law and was not an

improper comment on the evidence. State v. Zimmerman, 130 Wn. App. 170, 182, 121 P.3d 1216

(2005). Most recently, Division I of this court held that in cases involving sex crimes, it is

permissible to instruct the jury that there is no corroboration requirement. Chenoweth, 188 Wn.

App. at 537. We are bound by controlling precedent upholding noncorroboration instructions like

the one issued here. Consequently, we hold that the noncorroboration jury instruction was not an

impermissible comment on the evidence.




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No. 50446-4-II


        We affirm Domingue’s conviction.

        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.



                                                    SUTTON, J.
 We concur:



 MAXA, C.J.




 MELNICK, J.




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