                                                                                                                     FILED
                                                                                                            COURT OF APPEAL _S
                                                                                                                   DIVISION II
                                                                                                        Mil MAY 13
                                                                                                                   AM 9: 15
    IN THE COURT OF APPEALS OF THE STATE OF WASI
                                                   DIVISION II                                              Y


STATE OF WASHINGTON,                                                               No. 44221 -3 -II


                                    Respondent,


       v.



DUANE ALLEN MOORE,                                                          UNPUBLISHED OPINION


                                    Appellant.


           MELNICK, J.—    Duane Moore appeals his conviction and sentence for second degree

assault,   domestic   violence,   after   choking his   wife   during       an argument.           He argues that ( 1) the


prosecutor committed misconduct during voir dire and closing argument when he argued facts

not in evidence, made improper statements about witness credibility, and shifted the burden of

proof; (2) the trial court erred when it allowed a witness to testify with a service dog; and ( 3) the

prosecutor    improperly   testified at the sentencing      hearing.        In a statement of additional grounds


 SAG),      Mr. Moore alleges misconduct from an interaction between a trainee bailiff and a

witness. Finding no error, we affirm.

                                                       FACTS


           On July 22, 2012, when the Bremerton police responded to a domestic violence call, they

found Sabrina Moore " crying hysterically."              1 Report      of   Proceedings ( RP)          at   151.    She stated


that during an argument with her husband, Mr. Moore, he threw a plastic tea bottle at her back.
He then followed her       onto     the   porch,   backed her up    against      the railing,       and choked       her.   Mr.


Moore put one arm in front of Ms. Moore' s throat and one arm behind it. A neighbor witnessed

the incident    and   intervened.    Mr. Moore fled the        scene   in   a   friend'   s car.    Ms. Moore had a red


mark on     her throat.
44221- 3- 11




          The State charged Mr. Moore with second degree assault with a domestic violence

special allegation. At trial, Ms. Moore testified that Mr. Moore had choked her. Two neighbors


testified that they witnessed the Moores arguing when Mr. Moore grabbed Ms. Moore, hit her,
and placed an arm on              her throat.        Mr. Moore admitted to arguing with Ms. Moore but denied

touching her.

          Prior to Ms. Moore' s testimony and outside the presence of the jury, the State moved the

court   for    permission        to have       a service    dog     accompany Ms. Moore           on   the     witness     stand.   The


prosecutor advised the court that Ms. Moore was nervous and scared about testifying and that

defense counsel had no objections.

                                dire,                       juror    opined   that " beyond      a reasonable        doubt" did not
          During      voir               a prospective



mean absolute         certainty     and    that the   jury    would not get all     the facts.     1 RP   at   99. The prosecutor


responded by saying the jurors were in a difficult position because . "we know more about the
case    than   you   do."    1RP at 100. Mr. Moore did not object.

          Also, during voir dire, the prosecutor asked the jurors how they would prove that the
world    is    round.     The jurors gave examples of information they would use to prove the world' s

shape.        The    prosecutor         then   asked, "     Is it fair for me to say that you' re satisfied beyond a

reasonable       doubt based            on a common sense appreciation of              the facts; is that       correct ?"     1 RP at


 106.    The prosecutor relied on this semi -analogy again in closing argument and asked the jurors

to look       at all of   the   testimony       to   see   if it   made   sense.   He suggested that the jury evaluate the

 evidence and the credibility of the witnesses to determine if a physical confrontation occurred,

 stating, "[    Y] ou can be satisfied beyond a reasonable doubt [ that Mr. Moore is guilty of second

 degree   assault]      based     on a common sense appreciation of                  the facts."    2 RP       at   224.    Mr. Moore


 did not object.

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         The     jury     found Mr. Moore guilty         as charged.         At the sentencing hearing, Ms. Moore did

not appear because, as the prosecutor stated, she was " extremely traumatized" by the event and

she   feared Mr. Moore because              of a "   long history      of   domestic   violence."    RP ( Nov. 16, 2012) at


3.    The prosecutor then informed the court that Ms. Moore' s teeth were chattering before she

testified   at   trial   and   that   he had   never seen a victim so scared           to   testify. Mr. Moore objected to

                                                     The            overruled     Mr. Moore'     s   objection.   Ms. Moore
the   prosecutor         stating this   opinion.           court




submitted a written statement which the court read silently but did not make a part of the record.

Mr. Moore requested an exceptional sentence below the standard range.


         When sentencing Mr. Moore, the court stated its reasoning for imposing a mid -range 62-
month sentence was based on " the severity of the crime, your criminal history and because I, in

fact, heard the victim and I don' t find that it was de minimis so I don' t find there' s a basis for an

exceptional sentence            downward." RP ( Nov. 16, 2012) at 35. Mr. Moore appeals.


                                                           ANALYSIS


I.        PROSECUTOR ERROR


            Mr. Moore argues that the prosecutor committed misconduct by arguing facts not in

 evidence, implying that the jury' s job is to convict if it finds the State' s witnesses more credible
than the defendant,             and    misstating its burden       of proof.      We hold that the prosecutor did not


 commit misconduct.



             In order to prevail on a claim of prosecutorial misconduct, a defendant is required to

 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."    In re Pers. Restraint of Glasmann, 175 Wn.2d 696,

 704, 286 P. 3d 673 ( 2012).              We review a prosecutor' s remarks during closing argument in the

 context of the total argument, the issues in the case, the evidence addressed in the argument, and
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the   jury    instructions.     State    v.   Dhaliwal, 150 Wn.2d 559, 578, 79 P. 3d 432 ( 2003).                    It is proper


argument that the evidence fails to support the defense' s theory. State v. Russell, 125 Wn.2d 24,

87, 882 P. 2d 747 ( 1994).


          A.          Arguing Facts Not in Evidence

          First, Mr. Moore contends that the prosecutor' s statement during voir dire that the jurors

were    in    a   difficult   place    because "    we    know      more   about    the   case   than   you   do" was improper


because it        argued   facts   not   in   evidence.    1 RP at 100. But the prosecutor' s comments during voir

dire   were       not evidence;        therefore, he      did   not argue   facts   not   in   evidence.      And the trial court


instructed the jury that the lawyers' statements were not evidence.

             B.       Credibility

             Mr. Moore next argues that the prosecutor committed misconduct when he implied that

                                   if it finds the State'       s   witnesses   more credible          than the defendant.   The
the    jury    must   convict




prosecutor merely argued that the evidence supported the State' s theory, not the defendant' s

theory,      and   that the   jury     should weigh       credibility.     Both arguments are proper topics for closing

argument.          See Russell, 125 Wn.2d at 87 ( it is not misconduct to argue that the evidence fails to

support       the defendant'       s   theory); State v. Thomas, 150 Wn.2d 821, 874 -75, 83 P. 3d 970 ( 2004)


 witness credibility is a jury question).

             C.        Burden of Proof


             Lastly, Mr. Moore argues that the prosecutor misstated the burden of proof by using an
                                                 doubt               encouraging the       jury   to         common sense.    We
 analogy to describe           reasonable                 and   by                                     use




 disagree.


              A prosecutor' s use of an analogy to explain the beyond a reasonable doubt standard is

 reviewed on a case -by -case basis. State v. Fuller, 169 Wn. App. 797, 825, 282 P. 3d 126 ( 2012),
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44221 -3 - II




review       denied, 176 Wn.2d 1006 ( 2013).                   When the State uses an analogy that equates its burden

of proof to making an everyday choice or quantifies the level of certainty necessary to satisfy the

beyond        a reasonable      doubt   standard,        it   commits misconduct.             Fuller, 169 Wn. App. at 827; see

also    State   v.    Anderson, 153 Wn.            App. 417,      431, 220 P. 3d 1273 ( 2009); State v. Johnson, 158


Wn.     App. 677,       684, 243 P. 3d 936 ( 2010). Where, as here, the State does not minimize its burden


of proof or shift        the burden      of proof        to the defendant, there         is   no misconduct.      Fuller, 169 Wn.


App. at 826 ( citing State v. Curtiss, 161 Wn. App. 673, 700 -01, 250 P. 3d 496 ( 2011)).

             Additionally, the State properly argued the law of the case by telling the jury it could use
common sense            in assessing the       evidence and         the   witnesses.     The trial court instructed the jurors


that they must consider all admissible evidence and that they have a duty to assess the credibility
                                    weigh     the       evidence.     Within the         context     of   closing     argument,   the
of     the    witnesses       and




prosecutor' s statement about " a common sense appreciation of the facts" was not misconduct. 2

RP     at    224.    After making that statement, the prosecutor further argued that the State' s witnesses

corroborated each others' testimony and that their testimony " ma[ de] sense" while defendant' s

testimony           was not supported        by   the   evidence.    2 RP    at   224.   The prosecutor was referencing the

                                                              to find Mr. Moore guilty based              on   that   evidence.   This
 evidence presented and             urging the      jury

was not improper.


              Because we hold that Mr. Moore has failed to establish any misconduct, we affirm the

 trial court.


 II.          SERVICE DOG


              For the first time on appeal, Mr. Moore argues that the trial court erred by allowing the

 service      dog     to be   present   in   court with        Ms. Moore.      He first argues that, by doing so, the trial

 court       improperly       commented on        the    evidence.    He then posits his confrontation and due process

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44221- 3- 11



rights were violated          by    the    dog' s   presence.    Because Mr. Moore failed to raise these issues at


trial, he has failed to preserve this issue.


           We will not review an argument raised for the first time on appeal unless the challenging

party demonstrates         a manifest constitutional error.              RAP 2. 5(     a)(   3).   An error is manifest if it is so


obvious on       the   record      that the error     requires appellate review.              State v. O' Hara, 167 Wn.2d 91,


99 -100, 217 P. 3d 756 ( 2009).               The defendant must show actual prejudice, meaning the alleged

error    had   practical and       identifiable     consequences at       trial.   State v. Gordon, 172 Wn.2d 671, 676,


260 P. 3d 884 ( 2011).


           Here, Mr. Moore fails to                 prove     that any   alleged     errors        were   manifest.    There is no


evidence       in the     record      that the       dog' s   presence     made      Ms. Moore             appear traumatized    or



victimized, and thereby violated Mr. Moore' s due process rights, or acted as a comment on the

evidence.       See State     v.   Dye, 178 Wn.2d 541, 555, 309 P. 3d 1192 ( 2013) (                       holding that the court' s

decision to allow a service dog was reasonable and that there was no evidence on the record that

the dog made the victim witness appear " pitiful to the jury and ` presupposed the victimhood of
the     complainant ").         It is the responsibility of the party alleging error to make a record of that
error.     Dye, 178 Wn.2d             at    556.     Additionally, Division One of this Court rejected a similar

confrontation          clause      argument,        holding that confrontation clause case law was inapposite

because the dog' s presence does not prevent face -to -face confrontation with the witness. State v.
Dye, 170 Wn.                  340, 346, 283 P. 3d 1130 ( 2012), aff'd              by   Dye, 178 Wn.2d 541.            We therefore
                       App.

 reject Mr. Moore' s argument and affirm the trial court.


 III.      SENTENCING


           Finally, Mr. Moore argues that the prosecutor violated the real facts doctrine and Mr.
               due                                                  Ms. Moore'          behalf                         Because Mr.
 Moore'    s         process       rights   by testifying      on                  s                at   sentencing.

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44221- 3- II



Moore      received     a sentence        within   the    standard         range,   he   cannot appeal   his   sentence.     RCW


9. 94A. 530( 1);      RCW 9. 94A.585( 1);          State v. Williams, 149 Wn.2d 143, 146, 65 P. 3d 1214 ( 2003).

Therefore, the argument on the " real facts doctrine" is moot.

IV.        SAG


           In his SAG, Mr. Moore argues bailiff misconduct, judicial misconduct, and ex parte

communications arising from an incident where the trainee bailiff realized she recognized Ms.

Moore. Because there was no prejudice, we disagree.

           The bailiff     at   trial   was    training   a new     bailiff.    Before the second day of testimony, the

                                                                                    Ms. Moore                       The trainee
bailiff    and   trainee   were       standing in the       hallway         when                  walked past.




 greeted"      Ms. Moore        and     then   realized   that   she   knew Ms. Moore         briefly four   years ago.    2 RP at


184.    The bailiff and trainee reported this to the trial court, which then informed the parties on

the   record and allowed          the    parties   to ask   questions or raise objections.           The bailiff clarified that


no    jurors   witnessed    the interaction.         Mr. Moore requested that the trainee not participate in the

rest of the trial, and the trial court dismissed the trainee.

           This interaction did           not prejudice          Mr. Moore.         No jurors witnessed the trainee bailiff

greeting Ms. Moore, and the trainee was dismissed from the rest of the trial at Mr. Moore' s
request.         There is no evidence in the record that the jury knew about or was in any way

 influenced           the interaction.         Nor is there any         evidence of ex parte communication.                The trial
                 by

 court discussed the interaction in chambers with the bailiffs, but there is no indication that any

 parties    were      present.      Rather, it appears that both parties were told about the interaction

 simultaneously on the record. We affirm.




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44221- 3- 11




        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.




We   concur:
