    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                       No. 69227-5-1
                    Respondent,
                                                       DIVISION ONE

                                                       UNPUBLISHED OPINION
JAMES EDWARD HUDEN,

                    Appellant.                         FILED: February 3, 2014


      Appelwick, J. — Huden was convicted of first degree murder and given an

exceptional sentence based on his victim's particular vulnerability. Huden appeals his

sentence, arguing that there was insufficient evidence to support the aggravating factor.

He also appeals his conviction, arguing that the trial court abused its disci^tio^ig
                                                                                 m    m—,

allowing the jury access to a video of his police interrogation during deliberations l ^
that the prosecutor committed misconduct. We affirm.                             §£ r^>':
                                                                                 oc   r-o ^
                                         FACTS                                   Ji   3i5

      On December 27, 2003, Russel Douglas was found dead in a car on Whidbey

Island. Douglas had a gunshot wound to the head, apparently a homicide. The police

investigation ultimately led to James Huden, due in part to information from Huden's

close friend, William Hill. The State charged Huden with first degree murder.

      At trial, Hill testified that Huden said he and a woman named Peggy Thomas

killed a man. Huden told Hill that they chose Douglas as a victim, because Huden

thought Douglas was abusive to his family. Huden's stepfather abused him, and Huden

wanted to kill someone that fit that modus operandi. Under the ruse of giving Douglas a

gift for his wife, Thomas lured Douglas to a dead end road in a sparsely populated area
No. 69227-5-1/2



of Whidbey Island.       Huden was waiting there.       When Douglas arrived, Huden

approached the car and shot Douglas in the forehead.

       The State argued that Douglas was particularly vulnerable to the crime of first

degree murder, because he was still buckled into his car when Huden approached him

and because he had an unsuspecting mindset. The jury found Huden guilty as charged,

including the aggravating factor of particular vulnerability. Huden appeals.

                                      DISCUSSION


       Huden challenges his exceptional sentence, arguing that there was insufficient

evidence to support the aggravating factor of particular vulnerability. He also argues

that the statute establishing the aggravating factor is unconstitutionally vague.        In

addition, Huden appeals his conviction, alleging that the trial court abused its discretion

in permitting the jury access to a video of his interrogation. He further asserts that the

prosecutor committed multiple instances of misconduct.

  I.   Particularly Vulnerable Victim Aggravating Factor

       Huden argues that the trial court improperly imposed an exceptional sentence,

because there was insufficient evidence to establish particular vulnerability. We review

the fact finder's reasons for imposing an exceptional sentence under a clearly

erroneous standard. State v. Law, 154 Wn.2d 85, 93, 110 P.3d 717 (2005). Under this

standard, we reverse the findings only if substantial evidence does not support them.

State v. Bluehorse, 159 Wn. App. 410, 423, 248 P.3d 537 (2011).                "Substantial

evidence" is sufficient evidence to "'persuade a fair-minded person of the truth of the

declared premises.'" \_± at 423-24 (quoting State v. Jeannotte, 133 Wn.2d 847, 856,

947 P.2d 1192 (1997)).
No. 69227-5-1/3




       The jury must find beyond a reasonable doubt that there is a factual basis for an

aggravated sentence. RCW 9.94A.537(6); State v. Suleiman, 158 Wn.2d 280, 292, 143

P.3d 795 (2006). RCW 9.94A.535(3)(b) permits a sentence above the standard range

where the victim was particularly vulnerable or incapable of resistance and the

defendant knew or should have known that fact. For a victim's vulnerability to justify an

exceptional sentence, the State must also show that the vulnerability or inability to resist

was a substantial factor in the commission of the crime. Suleiman, 158 Wn.2d at 291-

92.


       The evidence at trial demonstrated that Douglas was shot while seated in his car.

The angle of the wound indicated that the shot came from the driver's side. The door

was closed, but the window was down several inches. The range of fire was between

several inches and a couple of feet. Douglas was in the driver's seat, slumped over

with his hands on his thighs. The keys were still in the ignition, the car was in reverse,

and the emergency brake was up to his right. His seatbelt was across his body with the

buckle unhooked.      Based on the blood spatter, however, Douglas was shot with his

seatbelt still attached.

       The evidence further showed that Huden and Thomas lured Douglas to the

location under false pretenses. Thomas had told Douglas that she had a gift for his wife

and asked him to meet her. When Douglas left that day, he told his wife that he was

going to run errands. When Douglas arrived at the meeting spot, Huden shot him.

       The evidence also demonstrated that Huden attacked Douglas in a relatively

remote location. Wahl Road is a dead end road outside of Langley city limits and does

not get much traffic. The area has multiple residents, but is sparsely populated overall.
No. 69227-5-1/4




Douglas's car was parked in an opening in the vegetation off Wahl Road that was

visible to neighboring homes and passersby.

        In closing, the prosecutor argued that Douglas was more vulnerable than a

typical victim of first degree murder:

              He is in two ways. Obvious way: He is seat belted in his car. He's
        got bucket seats. He's got a center console. Shift lever. Parking brake's
        up. His legs are under the steering wheel. ...



              And [Douglas] was particularly vulnerable in another way. . . .

              . . . [Hje's unsuspecting. And he has no reason to think twice when
        the man coming up to his car approaches the car. He has no reason to
        flinch, to duck, to start the motor, to take the brake off, to unbuckle the
        seatbelt because he's been duped into thinking that this is just the average
        thing that a husband might do on the day after Christmas. [He was b]oth
        vulnerable and incapable of resistance...

In addition to Douglas's seatbelt and unsuspecting mindset, the State's briefing argued

that his remote location contributed to his particular vulnerability

        Huden does not allege that the jury was not properly instructed on the law in this

case.   Rather, he contests the jury's factual finding by special verdict that particular

vulnerability existed.1   He argues that Douglas was not particularly vulnerable to a
sudden gunshot to the head. This is so, he contends, because the suddenness of such

an attack would prevent any victim from resisting. He relies on State v. Jackmon. 55

Wn. App. 562, 569, 778 P.2d 1079 (1989), and State v. Serrano. 95 Wn. App. 700, 712,


        1 At trial, the jury was instructed to consider whether "[Huden] knew or should
have known that [Douglas] was particularly vulnerable or incapable of resistance." The
instructions elaborated that a victim is particularly vulnerable if "he or she is more
vulnerable to the commission of the crime than the typical victim of murder in the first
degree. The victim's vulnerability must also be a substantial factor in the commission of
the crime."
No. 69227-5-1/5




715, 977 P.2d 47 (1999), both of which reversed a finding of particular vulnerability in

cases involving victims shot from behind with a firearm.

       In Jackmon, the victim was shot in the back of the neck while seated at table in

his office.   55 Wn. App. at 564-65, 567. The trial court made a finding of particular

vulnerability based in part on the fact that the victim was disabled by a cast on his ankle,

jd. at 565.    The Court of Appeals reversed, noting that there was no indication the

victim's disability rendered him more vulnerable to the assault that an able-bodied

person would have been, jd. at 567. No evidence established that the defendant knew

about the leg injury or that the cast was visible to the defendant prior to committing the

crime. Id. Further, it was highly unlikely an able-bodied person would have been able

to escape, jd.

       In Serrano, the victim, an orchard worker, was above the ground in an orchard

ape2 when he was shot multiple times in the back. 95 Wn. App. at 710-11. The trial

court found that the victim could not run or protect himself and that he was particularly

vulnerable, jd. at 711. The court of appeals reversed, jd at 712, 715. It reasoned that,

though the victim may have been vulnerable because he was above the ground in an

orchard ape, the record did not suggest this was a substantial factor in the shooting, jd.

       Neither case stands for the proposition that an exceptional sentence based on

victim vulnerability is necessarily unavailable when the victim is attacked with a firearm.

Rather, in each case, one of the key components necessary to uphold the exceptional

sentence was not supported in the record below.



       2 An orchard ape is a caged platform on a hydraulic lift powered by a tractor.
Serrano, 95 Wn. App. at 711.
No. 69227-5-1/6



      Here, the victim was an able-bodied man like the victim in Serrano.        But, the

finding of particular vulnerability or inability to resist is not limited to the physical

characteristics of the victim. State v. Ross, 71 Wn. App. 556, 565, 861 P.2d 473, 883

P.2d 329 (1993). We recognized particular vulnerability when the defendant knew the

victim was alone and stranded. State v. Altum, 47 Wn. App. 495, 503, 735 P.2d 1356

(1987), overruled on other grounds by State v. Parker, 132 Wn.2d 182, 937 P.2d 575

(1997). Similarly, we recognized particular vulnerability where the defendant picked his

victims based on the fact that they worked alone in offices open to the public. Ross, 71

Wn. App. at 565. And, we recognized that attacking women alone in their homes while

they slept left them less able to resist and more vulnerable than a person awake. State

v. Hicks, 61 Wn. App. 923, 931, 812 P.2d 893 (1991).

       The record here supports a finding that Huden knew or should have known that

Douglas was particularly vulnerable or unable to resist the attack. Like the victims in

Altum, Ross, and Hicks, Douglas had been isolated by Huden. Douglas was asked to

meet at a fairly remote location that required he come in a vehicle. He was alone when

he was attacked. Like the victims in Hicks and Serrano, Douglas was unable to resist

the attack. He had set the parking brake and turned off the vehicle. He was belted into

his vehicle, with little ability to move between the door, wheel, and console. He was

approached and shot before he could exit the vehicle.3


       3 The State also relied on the argument that Douglas was unsuspecting.
However, the victim was unsuspecting in virtually every published case that involved
this exceptional sentencing option. See, e.g., Serrano, 95 Wn. App. at 711 (victim shot
from behind); Ross, 71 Wn. App. at 564 (defendant gained entry using ruse); Hicks, 61
Wn. App. at 931 (victim asleep); Jackmon, 55 Wn. App. at 567 (victim shot in back of
neck); Altum, 47 Wn. App. at 497 (victim grabbed from behind). If that factor alone was
No. 69227-5-1/7




       And, like Hicks—but unlike Jackmon and Serrano—the record here supports a

finding that Douglas's particular vulnerability or inability to resist were substantial factors

in the commission of the crime, based on the way Huden set up the meeting and crime.

Taken together, these circumstances provide sufficient evidence to support the jury's

finding of particular vulnerability.4

       We hold that the particularly vulnerable victim aggravator properly supports

imposition of the exceptional sentence.

 II.   Vagueness of Aggravating Factor Statute

       Huden also challenges the constitutionality of RCW 9.94A.535(3)(b), which

establishes the "particularly vulnerable" aggravating factor. He argues that the statute is

unconstitutionally vague.

       However, in State v. Baldwin, the Washington Supreme Court held that

sentencing guidelines are not subject to due process vagueness analysis. 150 Wn.2d

448, 461, 78 P.3d 1005 (2003). This is because sentencing guidelines do not define

conduct or allow for arbitrary arrest and prosecution. Id. at 459.

       Huden maintains that the U.S. Supreme Court's decision in Blakelv v.

Washington nullifies the Baldwin rationale. 542 U.S. 296, 303-04, 124 S. Ct. 2531, 159

L. Ed. 2d 403 (2004).       In Blakelv. the Court ruled that a judge may not impose a

sentencing enhancement without either findings by the jury or a stipulation by the

defendant. See id.


enough, one would have expected it to have been discussed in Jackmon and Serrano,
since it would have resulted in affirmance rather than reversal.
       4 Because there is sufficient evidence to support a finding of particular
vulnerability, the trial court had substantial and compelling reasons to support Huden's
exceptional sentence. See RCW 9.94A.535.
No. 69227-5-1/8




        Huden argues that this established a due process right that encompasses

vagueness challenges to sentencing enhancements. He focuses on the Blakelv Court's

treatment of aggravating factors as equivalent to elements of a crime. But, Blakelv did

not destroy any distinction between aggravating factors and elements.              In State v.

Powell, a post-Blakelv decision, a majority of the Washington Supreme Court concluded

that aggravated sentencing factors are the functional equivalent of essential elements

that must be charged in an information.        167 Wn.2d 672, 690, 223 P.3d 493 (2009),

(Stephens, J. concurring), overruled by State v. Siers, 174 Wn.2d 269, 274 P.3d 358

(2012). But, the court subsequently overruled that decision:

       [W]e are of the view that the decision a majority of this court reached in
       Powell on the issue of whether aggravating factors must be charged in the
        information is incorrect. . . . We, therefore, overrule this court's decision on
       that issue and adopt the position advanced by the lead opinion in Powell
       to the effect that, so long as a defendant receives constitutionally
       adequate notice of the essential elements of a charge, "the absence of an
       allegation of aggravating circumstances in the information [does] not
       violate [the defendant's] rights under article I, section 22 of the
       Washington Constitution, the Sixth Amendment to the United States
        Constitution, or due process."


Siers, 174 Wn.2d at 276 (alterations in original) (quoting Powell, 167 Wn.2d at 687).

        Blakelv focused on the right to a jury trial. See 542 U.S. at 301-02. This is

distinct from the vagueness doctrine, which exists to provide notice to the public and

protect it from arbitrary state intrusion. Baldwin, 150 Wn.2d at 458. The rule in Baldwin

still stands.


        Huden may not bring a vagueness challenge to the aggravating factor statute.




                                                   8
No. 69227-5-1/9




 III.   Jury Access to Interrogation Video During Deliberations

        Huden argues that the trial court improperly permitted the jury unlimited access

to a video of his interrogation.    At trial, the prosecution introduced the video as an

exhibit and played it for the jury during trial. The court provided the jury with a video

player to watch it again during deliberations.

        The trial court has discretion to allow the jury to take video tape recorded exhibits

to the jury room. State v. Castellanos, 132 Wn.2d 94, 100, 935 P.2d 1353 (1997). In

Castellanos, the trial court provided the jury a playback machine during deliberations so

it could review video tape recordings of drug transactions, jd. at 96-97. The appellate

court affirmed this exercise of discretion, finding that the jury's unlimited access to the

recordings alone did not prove that the jury gave the exhibit undue prominence, jd. at

102.    The court also distinguished between testimonial and nontestimonial exhibits,

suggesting that the former raised problems of undue emphasis, while the latter should

be treated as any other exhibit. See id at 101-02.

        Huden focuses on this distinction, arguing that the video of his police interview

was testimonial. He cites to State v. Elmore, a case in which the trial court permitted

the jury to review video tapes of the defendant's confession and police interview. See

139 Wn.2d 250, 296, 985 P.2d 289 (1999). Huden relies on the dissent in that case to

assert that the video of his own interview was testimonial.       But, the Elmore majority

expressly found the taped confession and interview to be nontestimonial. jd

        The record here does not contain the video tape or a transcript of Huden's

interrogation. But, under Elmore, the trial court did not abuse its discretion in providing
No. 69227-5-1/10




the jury unlimited access to a video tape of the defendant's police interrogation and

confession. Huden offers no evidence to distinguish the present case.

       Based on the evidence presented, we do not find that the trial court abused its

discretion.


IV.    Prosecutorial Misconduct


       Huden alleges multiple instances of prosecutorial misconduct.       Prosecutorial

misconduct is grounds for reversal where the conduct is both improper and prejudicial.

State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011). This court determines the

effect of a prosecutor's improper conduct in the context of the full trial, including the

evidence presented or addressed in argument, the issues in the case, and the jury

instructions. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006). Generally, a

prosecutor's comments are prejudicial only where there is a substantial likelihood that

they affected the jury's verdict. Monday, 171 Wn.2d at 675.

       A. Comments On Huden's Demeanor


       Huden first argues that the prosecutor improperly inferred that he was guilty by

commenting on Huden's demeanor. Prosecutors have wide latitude in closing argument

to draw reasonable inferences from the evidence and express those inferences to the

jury. State v. Stenson. 132 Wn.2d 668, 727, 940 P.2d 1239 (1997). But, counsel must

refrain from expressing a personal opinion. State v. Rivers, 96 Wn. App. 672, 674-75,

981 P.2d16(1999).

       Huden challenges the prosecutor's comments about his interaction with the

police. In closing, the prosecutor described Huden's reaction to the police showing up

at his Florida home, noting that Huden did not seem surprised, despite the fact that the


                                              10
No. 69227-5-1/11




detectives came all the way from Washington.        The prosecutor also commented on

Huden's behavior during his interrogation, pointing out his "[v]ery flat affect."     The

prosecutor further noted that Huden never expressly denied having killed Douglas.

None of these statements contained opinions—they were descriptions of the evidence

established at trial. At most, they were implications of inferences that counsel wished

for the jury to draw. This was not improper.

        B. Comments On Huden's Credibility

        Huden also argues that the prosecutor improperly commented on his credibility.

Specifically, he contests the prosecutor's statement about "some actual information that

[Huden] gave that was reliable here." He contends that this improperly insinuated that

he had lied to the police.

        Prosecutors may not express their personal opinions of the defendant's

credibility.   State v. Calvin, 176 Wn. App. 1, *18-*19, 302 P.3d 509,         P.2d

(2013). But, there is no prejudicial error unless it is "'clear and unmistakable'" that

counsel is expressing a personal opinion, jd. at *19 (quoting State v. Brett, 126 Wn.2d

136, 175, 892 P.2d 29 (1995)). In Calvin, the prosecutor said the defendant was "'just

trying to pull the wool over your eyes.'" Id The court found that this was an explanation

of the evidence, rather than a personal opinion. Id

        Taken out of context, the prosecutor's statement here may seem like an

insinuation that Huden was an unreliable witness.       But, the prosecutor's comment

directly preceded a list of evidence that corroborated Huden's statements during his

interrogation.    The prosecutor did not assert that Huden had otherwise lied, thus




                                               11
No. 69227-5-1/12




juxtaposing the following reliable statements.         See jd This was not a clear and

unmistakable opinion of the defendant's credibility.

       C. Comments On Huden's Silence

       Huden further asserts that the prosecutor improperly commented on his silence

during his police interview. In closing, the prosecutor reviewed statements that Huden

made during his interrogation, and then pointed out some details that Huden had not

mentioned.      The prosecutor noted that the absence of these details was "[pjretty

significant."

       The Fifth Amendment forbids comment by the prosecution on a defendant's

refusal to testify. Griffin v. California, 380 U.S. 609, 614, 85 S. Ct. 1229, 12 L. Ed. 2d

106 (1965). But, this was not a comment on Huden's silence. In fact, the prosecutor

explicitly stated that Huden spoke to the police. The prosecutor was merely drawing

inferences from the contents of Huden's statement. This was not improper.

       D. Vouching For State's Witnesses

       Huden also challenges the prosecutor's comments about the State's witnesses.

It is improper for a prosecutor to vouch for the veracity of a witness. State v. Ish, 170

Wn.2d 189, 196, 241 P.3d 389 (2010).         But, counsel may comment on a witness's

veracity so long as it does not express a personal opinion and does not argue facts

beyond the record. State v. Smith, 104 Wn.2d 497, 510-11, 707 P.2d 1306 (1985). In

State v. Warren, the court found that a prosecutor's actions were proper when he

argued that certain details had a "'ring of truth'" to them. 165 Wn.2d 17, 30, 195 P.3d

940 (2008). The court found that the statement was an inference based on specific

details from trial, rather than the prosecutor's personal opinion. ]d


                                                12
No. 69227-5-1/13




       Here, the prosecutor made multiple statements about the strength of the State's

witnesses' testimony.     He said that their testimony combined was "so strong, so

overwhelming, in and of themselves they prove beyond a reasonable doubt." He also

called Hill's testimony "uncontroverted," "unassailable," and "unimpeachable," stating

that it had "[every] indicia of reliability."   The prosecutor emphasized that Hill was

Huden's best friend, and that it was very difficult for Hill to come forward. As in Warren,

these comments were mere inferences from the evidence at trial. The prosecutor did

not state his own belief about witness credibility, but remarked on the strength of the

evidence presented at trial and the lack of reason to doubt it.

       Huden also challenges the prosecutor's comments that two State witnesses were

"heroes" for testifying against Huden. During closing, the prosecutor said:

              But this case is also about heros fsicl.

               I submit to vou that Bill Hill is a hero. Bill was put in a position he
       did not ask to be put in, he did not want to be put in, and it was very
       difficult for him. He had to choose between loyalty to his best and closest
       friend and doing the right thing and doing what his conscience told him to
       do.




              Now Keith Qgden, I submit, is also a hero in a similar situation. He
       didn't have the closeness with Jim Huden that Bill Hill had; but
       nevertheless, Keith found himself in possession of a gun that he had good
       reason to believe . . . was used to kill a man.       And Keith, too, had to
       struggle with that a little bit. But he knew what he had to do because his
       conscience told him what to do.

(Emphasis added.) The use of the word "hero" crossed into the realm of personal

opinion.

       However, Huden did not object to these comments at trial. Where a defendant

fails to object to improper conduct, the error is considered waived unless the conduct

                                                  13
No. 69227-5-1/14




was so flagrant and ill-intentioned that it creates an enduring prejudice that could not

have been neutralized by a curative instruction. State v. Brown, 132 Wn.2d 529, 568,

940 P.2d 546 (1997). In Brown, the prosecutor stated that the defendant's crime was

"'evil'" and "'screams out for the death sentence.'" ]d The court held that, though the

words were dramatic, the prosecutor's general statements were supported by the

evidence and his conduct did not warrant reversal. Id. at 568-69.

      Conversely, in State v. Belgarde, the prosecutor told the jury that the defendant

was "'strong in'" the American Indian Movement, whom he described as "'a deadly

group of madmen'" and "'butchers, that killed indiscriminately Whites and their own.'"

110 Wn.2d 504, 506-07, 755 P.2d 174 (1988) (emphasis omitted). The prosecutor also

called the group "militant" and analogized them to notorious political leaders. Id at 507.

The court found that those statements were so prejudicial that a curative instruction

would have been ineffective, jd 507-08.

       Like the descriptions in both Brown and Belgarde, the word "hero" does have

emotional appeal. But, it does not rise to the inflammatory level of the statements in

Belgarde. And, as in Brown, the prosecutor used the word in context of a statement

supported by the evidence: here, the witnesses' difficult position of testifying as Huden's

friends. In the face of the strong evidence against Huden, it is unlikely that this brief

complimentary description of the State's witnesses prejudiced the outcome of his trial.

This error does not warrant reversal.




                                                14
No. 69227-5-1/15




        E. Personal Opinion Of Huden's Guilt

        Finally, Huden protests that the prosecutor improperly expressed his opinion of

Huden's guilt. It is improper for a prosecutor to state a personal belief about the guilt or

innocence of the accused.      State v. Emery, 161 Wn. App. 172, 192, 253 P.3d 413

(2011), affd, 174 Wn.2d 741, 278 P.3d 653 (2012).             But, the court will not find

prejudicial error unless it is clear that counsel is expressing a personal opinion rather

than an inference from the evidence. Id at 192-93. In Emery, the court declined to find

prejudicial error where the prosecutor said that "'the truth of the matter'" was that the

defendant was guilty. ]d at 192. The court noted that this statement came after

discussing the State's evidence, and was only an inference therefrom. Id at 193.

        Here, while discussing the special verdict forms, the prosecutor told the jury that

it would consider aggravating circumstances "if you find Mr. Huden guilty -- And I

strongly argue that that is the case and the standard of evidence and proof has been

met."   This statement, as in Emery, came after the prosecutor laid out the State's

evidence, and was merely an inference that he wished for the jury to draw. This did not

constitute error.


        We affirm.




WE CONCUR:




W^^aar                                  \vSU b-d fl*. ,Cx^

                                                15
