                                                                    FILED
                                                               FEBRUARY 28, 2017
                                                             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. 33576-3-111
                                                     )
                              Respondent,            )
                                                     )
              V.                                     )        UNPUBLISHED OPINION
                                                     )
    ROYE. COOLEY,                                    )
                                                     )
                              Appellant.             )

              PENNELL, J. -    Roy Cooley was convicted of first-degree rape of a child. He

    raises a number of complaints, none of which were properly preserved for review. We

    affirm.

                                                FACTS

1             Two months after their breakup, Mr. Cooley's ex-girlfriend contacted the police

    and reported that her six-year-old son had made sexual assault allegations against Mr.

    Cooley. Mr. Cooley's ex-girlfriend admittedly delayed making this report. She also

    failed to include the allegations of sexual abuse in a restraining order petition filed against

    Mr. Cooley. At trial, Mr. Cooley's ex-girlfriend explained her behavior as follows:
No. 33576-3-III
State v. Cooley


       [Prosecutor]: Why did you wait?
       [Witness]: Just trying to make sure that I wasn't going to mess up
       anybody's life.
       [Prosecutor]: Okay.
       [Witness]: Without being sure of-
       [Prosecutor]: Without being sure of what?
       [Witness]: Yeah. Without knowing that what I was going-I don't know.
       That knowing that what my son was saying was the truth. I was just trying
       to-
       [Prosecutor]: Well, at the point of the second conversation when you told
       [your son] what the defendant said-
       [Witness]: Uh-huh.
       [Prosecutor]: -did you believe him at that point?
       [Witness]: I did. I did when I saw him crying and stuff. That's what made
       me-I didn't want to believe it.
       [Prosecutor]: Made you what?
       [Witness]: Made me tell the police.

2 Report of Proceedings (RP) (May 13, 2015) at 149. Defense counsel did not object to

this line of testimony. On redirect, the prosecutor broached the subject of delay again. At

this point, Mr. Cooley's ex-girlfriend said, "I didn't want to ruin somebody's life without

being [one] hundred percent sure that it had happened." Id. at 195 (emphasis added).

Again, defense counsel did not object.

       The defense trial strategy was to attack the credibility and motives of Mr. Cooley's

ex-girlfriend. The defense presented an expert witness who described how children's

memories are vulnerable to manipulation. Mr. Cooley also testified to an occasion when

the victim accidentally discovered a pornographic home video, depicting the victim's


                                             2
    No. 33576-3-111
    State v. Cooley


    mother performing oral sex on Mr. Cooley. Weaving together these two areas of

    testimony, the defense theorized that the victim conflated what he saw in the video with

    his own personal history as a result of improper coaching by his mother. The defense did

    not question that, by the time of trial, the victim believed he was telling the truth. Instead,

    the defense cast aspersions on the reliability of the victim's mother.

           While Mr. Cooley was able to raise serious questions about his ex-girlfriend's

    credibility, the jury was ultimately unimpressed. After considering testimony not only

    from Mr. Cooley's ex-girlfriend, but also the victim, a forensic interviewer, and several

    law enforcement investigators, the jury found Mr. Cooley guilty. He now appeals.

                                            ANALYSIS

           Our analysis is grounded in respect for the jury process. Respect means trusting

    juries are capable of sifting through complex facts and faithfully applying the law. It

    means not second guessing jury decisions or rushing to assume juror confusion. Respect

    also means a jury should be provided the tools necessary to decide a case on the first try.

    If counsel disagrees with the manner in which something is presented to the jury,

    corrective action needs to be taken at the earliest possible opportunity. Only in

    exceptional circumstances will we upset a jury verdict based on missteps that could have

    been remedied during trial.


                                                  3


I
J
l
l
l
I   No. 33576-3-111
j   State v. Cooley


    Alleged vouching by the victim's mother


l          Mr. Cooley's first argument concerns testimony elicited from his ex-girlfriend, the


i
j
    victim's mother. He contends his ex-girlfriend improperly vouched for her son's

    testimony while explaining the reasons for delaying her report to the police. Because trial

    counsel did not object to this testimony, our review turns on whether Mr. Cooley can

    demonstrate manifest constitutional error. See RAP 2.5(a)(3). To succeed in this

    endeavor, Mr. Cooley "must identify a constitutional error and show how the alleged

    error actually affected [his] rights at trial." State v. Kirkman, 159 Wn.2d 918, 926-27,

    155 P.3d 125 (2007). Prejudice cannot be shown if defense counsel's failure to object

    appears to have been strategic. Id. at 937.

           Mr. Cooley cannot make the requisite showing of manifest error. Even assuming

    the testimony in question implicated Mr. Cooley's constitutional right to a jury trial, there

    was no actual prejudice. While a witness generally must not offer an opinion regarding

    the defendant's guilt or the credibility of another witness, such testimony is not always

    prejudicial. "In some instances, a witness who testifies to [her] belief that the defendant

    is guilty is merely stating the obvious." State v. Sutherby, 138 Wn. App. 609, 617, 158

    P.3d 91 (2007), aff'd on other grounds, 165 Wn.2d 870, 204 P.3d 916 (2009).




                                                  4
No. 33576-3-111
State v. Cooley


       This is a case where the allegedly improper comments had no potential for

prejudice. Unlike the testimony deemed impermissible in Sutherby, the victim's mother

here did not deprive the jury of its ability to independently assess the victim's credibility

by testifying the victim displays a "tell" when lying. · 13 8 Wn. App. at 617. Instead, the

victim's mother made the unsurprising statement that she believed her son. Further, and

perhaps more importantly, the testimony from the victim's mother was fully consistent

with Mr. Cooley's theory of the case. As previously stated, Mr. Cooley's defense was

that his ex-girlfriend had coached her son into making allegations against Mr. Cooley. It

was perfectly consistent with that theory for defense counsel to allow the victim's mother

to urge the jury to believe her son. Indeed, defense counsel even brought up the mother's

statements in closing. We will not disturb Mr. Cooley's conviction based on testimony

consistent with his chosen defense theory. The unpreserved claim of error is rejected. 1

Alleged judicial comment on the evidence

       During his testimony, Mr. Cooley stated his ex-girlfriend had brought stalking

charges against him, but those had been dropped. In rebuttal, the State elicited testimony




       1
         Because Mr. Cooley does not meet the "actual prejudice" portion of the manifest
error test, we do not engage in a harmless error analysis. Kirkman, 159 Wn.2d at 926-27.

                                              5
No. 33576-3-111
State v. Cooley


from Officer Robert Salinas, who had been involved in investigating the stalking charge.

Officer Salinas explained that the decision to file charges rested with himself "and the

Court." 6 RP (May 15, 2015) at 676. The prosecutor then asked who decided whether a

charge would be a felony or a misdemeanor. After the court overruled Mr. Cooley's

relevance objection, Officer Salinas stated it was "up to the Court." Id. During

questioning by the defense, Officer Salinas clarified that he had been incorrect. Rather

than the court, Officer Salinas agreed charging decisions rested with the prosecutor's

office. No further testimony was provided with respect to the court's role in the process,

other than Officer Salinas's comment that after an officer issues a citation or performs an

arrest, paperwork is forwarded "to the courts." Id. at 678.

       Mr. Cooley contends Officer Salinas's testimony amounted to a judicial comment

on the evidence in violation of the Washington Constitution. The only objection raised at

trial was based on relevance. Accordingly, our review again depends on whether Mr.

Cooley can demonstrate manifest constitutional error. State v. Levy, 156 Wn.2d 709, 719-

20, 132 P.3d 1076 (2006). See also State v. Embry, 171 Wn. App. 714, 740-41, 287 P.3d

648 (2012) (evidentiary objection does not preserve appellate review of improper opinion

evidence). Again, the standard is not met.




                                             6
No. 33576-3-111
State v. Cooley


       For a constitutional error to be "manifest" it must be readily identifiable. State v.

0 'Hara, 167 Wn.2d 91, 99-100, 217 P .3d 7 56 (2009). In the context of an improper

comment on the evidence, this means the challenged testimony must be explicitly

improper or nearly so. See State v. Jacobsen, 78 Wn.2d 491, 494-95, 477 P.2d 1 (1970).

See also Kirkman, 159 Wn.2d at 936; State v. King, 167 Wn.2d 324,332,219 P.3d 642

(2009). If a series of inferences and assumptions are necessary to understand why a given

comment might have been improper, the standard for manifest error is not met.

       Mr. Cooley's argument is that Officer Salinas's testimony improperly suggested a

court must have approved the charge against him. Although Officer Salinas was only

involved in the stalking investigation, which was a misdemeanor, Mr. Cooley asserts the

jury could have inferred Officer Salinas's testimony regarding felony decisions applied to

Mr. Cooley's current case, which was a felony. He further asserts that because Kittitas

County only has two superior court judges with authority to preside over felony cases,

Officer Salinas' s testimony effectively conveyed to the jury that there was a fifty percent

chance the current trial judge had approved the charge on trial.

       It is unclear whether the jury could or would have made the series of inferences

suggested by Mr. Cooley. Also, there is no precedent for the proposition that an improper

judicial comment on the evidence can come from a witness, as opposed to the court. In



                                              7
No. 33576-3-111
State v. Cooley


any event, Officer Salinas never explicitly testified that a court had approved the rape

charge against Mr. Cooley. Any error was not manifest.

Prosecutorial misconduct

       Mr. Cooley argues for the first time on appeal that the prosecutor committed

multiple instances of misconduct when he: (1) vouched for the credibility of the victim's

mother during closing argument, (2) improperly shifted the burden of the proof to Mr.

Cooley on three occasions, and (3) impermissibly impugned the integrity of defense

counsel. Because Mr. Cooley did not object to these aforementioned errors at trial, we

will not review his claims unless the alleged violations were so flagrant and ill intentioned

that the resultant prejudice could not have been eliminated by a curative instruction. State

v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).

       Vouching for the victim's mother

       During closing argument, the prosecutor summarized the testimony from the

victim's mother regarding disclosures made to her by her son. While recounting the

mother's testimony regarding her son's initial disclosure, the prosecutor stated:

       She's bathing him. She doesn't know the date herself exactly. And [the
       victim] grabs his testicles and she sees him. He's kind of grabbing it, and
       she's like, [h]ey, you know, those are yours. We don't do that. I believe
       her testimony -you know, [t]hat's just for you. You don't show that to
       people. Mom, I've got something to tell you. Okay. And we get our
       statement.

                                             8
No. 33576-3-111
State v. Cooley



7 RP (May 15, 2015) at 751 (emphasis added).

       Mr. Cooley argues that when the prosecutor said, "I believe her testimony," he was

commenting on the witness's credibility. This characterization is dubious. The

prosecutor's statement was, at most, ambiguous. The comment was made in the middle

of the prosecutor's description of the witness's testimony. In context, it appears the

prosecutor was trying to accurately recount the witness's testimony and simply left out the

word "was" after "testimony." This meaning may have been apparent to the court and

counsel, thus explaining why there was no objection. In any event, an objection and

curative instruction would have clarified the matter. Because no objection was lodged,

review on appeal is inappropriate. See State v. Emery, 174 Wn.2d 741, 761-62, 278 P.3d

653 (2012).

       Shifting the burden of proof to Mr. Cooley

       Mr. Cooley argues the prosecutor improperly shifted the burden of proof on three

occasions when he: (1) asked Mr. Cooley on cross-examination to explain why the victim

would make a false allegation, (2) faulted Mr. Cooley for not displaying his genitals to

investigators in order to prove there was no match to the victim's description, and (3)

argued the jury had to believe the victim had been coached by his mother in order to

acquit Mr. Cooley.

                                             9
No. 33576-3-III
State v. Cooley


              Asking for an explanation of false allegation

       The prosecutor never asked Mr. Cooley why the victim was lying. The inquiry

was limited to whether Mr. Cooley knew the victim was his accuser before the police told

him so. This was not improper. See State v. Boehning, 127 Wn. App. 511, 524-25, 111

P.3d 899 (2005)

              Faulting Mr. Cooley for not exposing himself

       Mr. Cooley insists it was improper for the prosecutor to fault Mr. Cooley during

closing argument for not exposing himself to the investigating officer in order to show his

genitals did not appear similar to what had been described by the victim. Mr. Cooley

correctly points out that a defendant is not required to present any evidence and the State

alone bears the burden of proving its case beyond a reasonable doubt. See State v.

Fleming, 83 Wn. App. 209, 215, 921 P.2d 1076 (1996). But a prosecutor has wide

latitude in closing argument to draw reasonable inferences from the evidence and express

such inferences to the jury. State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991).

       Whether the prosecutor's comments in this case were merely a comment on the

evidence or an improper attempt to shift the burden of proof is a close call. But an

objection and curative instruction would have cleared up the matter. Once again, because

no objection was made, review is unwarranted. See Emery, 174 Wn.2d at 761-62.


                                             10
No. 33576-3-111
State v. Cooley


              Arguing the jury had to believe the victim was coached

       During closing argument, the prosecutor stated, "If we go on the defense theory

part one of it's [the victim's mother], that's what you have to believe." 7 RP (May 15,

2015) at 750 (emphasis added). In context, it appears the prosecutor may have been

suggesting to the jury that, in order to acquit, it must believe the victim's mother is lying

and that she coached the victim to lie. Any such suggestion would be improper. See, e.g.,

Fleming, 83 Wn. App. at 213-16. However, a curative instruction would have dispelled

any confusion or prejudice. See Emery, 174 Wn.2d at 761-62.

       Impugning the integrity of defense counsel

       Mr. Cooley argues the prosecutor impugned the role of defense counsel when he

elicited testimony from the defense expert that defense attorneys routinely argue child

sexual assault victims have been coached or influenced by an adult. This line of

questioning was not explicitly disparaging. The jury could have inferred that the reason

defense attorneys routinely argue child sexual assault victims have been coached is that,

as testified to by the expert, the dangers of coaching and memory manipulation are very

real. Any improper inference from the prosecutor's questions could have been addressed

by a curative instruction. Because no objection or request for instruction was made,

review on appeal is unwarranted. See id.


                                             11
No. 33576-3-III
State v. Cooley


Cumulative error doctrine

       Mr. Cooley argues the prosecutorial misconduct here was so pervasive that it could

not have been dispelled by curative instructions. We disagree. At most, Mr. Cooley has

pointed to one clear example of improper prosecutorial comments. This is not a basis for

reversal.

Ineffective assistance of counsel

       Mr. Cooley claims his trial counsel was ineffective for failing to object to the

errors set forth in his briefing. An ineffective assistance of counsel claim may be raised

for the first time on appeal. State v. Ky/lo, 166 Wn.2d 856, 862, 215 P .3d 177 (2009).

However, to prevail, the defense must demonstrate not only deficient performance, but

also prejudice. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987); Strickland

v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Defense

counsel's conduct will not be considered deficient if it can be characterized as legitimate

trial strategy. Ky/lo, 166 Wn.2d at 863.

       Given the defense theory of the case, counsel's decision not to object to the

testimony from the victim's mother may well have been strategic. Other failures to object

may have been due to the ambiguous nature of the testimony and argument. The record

on appeal does not warrant the conclusion that Mr. Cooley's trial counsel was deficient.


                                             12
No. 33576-3-111
State v. Cooley


It could be that additional evidence will show some of the decisions made by trial counsel

were not strategic or reasonable. But if so, that is something to be raised in a personal

restraint petition, not direct appeal. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d

1251 (1995).

                                     CONCLUSION

       Mr. Cooley's judgment of conviction is 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.



                                          Pennell, J.
I CONCUR:




Lawrence-Berrey, A.CJ.




                                             13
                                       No. 33576-3-111

       FEARING,   C.J. (dissenting)-The majority emphasizes the need to trust a jury. As

a former trial attorney and an occasional trial judge, I trust juries. As a trial lawyer, I

concluded that my infrequent disagreement with a jury resulted from my zeal for my

client, not from the fault of the jury. Still, trust for juries has limits. The law presumes

that a jury may not be trusted to render a correct verdict if it hears hearsay, irrelevant,

unqualified opinion, or unduly prejudicial testimony or if the State delivers misleading

closing arguments. Otherwise, the law would promulgate no rules of evidence or

principles addressing prosecutorial arguments. The constitution affords an accused a

right to an impartial jury, and a trial infected by erroneous evidence and misleading

argument tests the impartiality of the jury.

       Stories abound of false convictions, including convictions assessing capital

punishment. The State of Washington holds a special obligation to protect children from

sexual assault, but sexual assault cases are also subject to false convictions. No one

benefits from false convictions, and mistaken convictions irreparably undermine trust in

our justice system. Appellate courts, except in appeals based on insufficient evidence, do

not adjudge an accused guilty or innocent. Nevertheless, we play an important role in
No. 33576-3-111
State v. Cooley (dissenting)


preventing false convictions resulting from inadmissible evidence and improper

argument.

       Our jury heard more than sufficient evidence to convict Roy Cooley of the charge

of child rape of his stepson Ralph, a pseudonym. Indeed Cooley may be guilty.

Nevertheless, the jury heard extensive, prejudicial, impermissible evidence. Therefore,

we should grant Cooley a new trial. A jury should assess his guilt or innocence only

within the confines of Washington's evidence rules. The jury should convict or acquit

without the influence of unacceptable prosecution argument.

       The majority may agree with me that the jury heard inadmissible evidence and

some of the State's closing arguments impermissibly shifted the State's burden of proof

to Roy Cooley. Nevertheless, the majority will not grant a new trial because Cooley's

defense counsel failed to object to the evidence and to the argument. Washington case

law dictates otherwise.

                                       Vouching

       Roy Cooley complains about Ruth Landrum's testimony, in two passages, during

which Landrum, Ralph's mother, averred that she concluded Ralph told the truth when

accusing Cooley of putting Cooley's penis in Ralph's mouth. Ruth Landrum is a

pseudonym in order to protect Ralph's identity. In the second passage, Landrum declared

she believed Ralph one hundred percent. This testimony violated longstanding

Washington law.

                                            2
No. 33576-3-111
State v. Cooley (dissenting)


       No reliable test for truthfulness exists, such that a witness is not qualified to judge

the truthfulness of a child's story. United States v. Azure, 801 F.2d 336, 341 (8th Cir.

1986); State v. Dunn, 125 Wn. App. 582, 594, 105 P.3d 1022 (2005). This rule is but a

more specific application of the general rule that no witness may give an opinion on

another witness' credibility. State v. Neidigh, 78 Wn. App. 71, 76-77, 895 P.2d 423

(1995); State v. Wright, 76 Wn. App. 811, 821-22, 888 P.2d 1214 (1995); State v. Suarez-

Bravo, 72 Wn. App. 359, 366, 864 P.2d 426 (1994); State v. Padilla, 69 Wn. App. 295,

299,846 P.2d 564 (1993); State v. Walden, 69 Wn. App. 183, 186-87, 847 P.2d 956

(1993); State v. Smith, 67 Wn. App. 838, 846, 841 P.2d 76 (1992); State v. Stover, 67

Wn. App. 228, 231, 834 P.2d 671 (1992); State v. Casteneda-Perez, 61 Wn. App. 354,

362-63, 810 P.2d 74 (1991); State v. Barrow, 60 Wn. App. 869, 875, 809 P.2d 209

( 1991 ). Lay opinion of the truthfulness of another is not helpful within the meaning of

ER 701, because the jury can assess credibility as well or better than the lay witness.

State v. Carlson, 80 Wn. App. 116, 123, 906 P.2d 999 (1995).

       In most sexual abuse cases, the respective credibility of the victim and the

defendant is a crucial question because the testimony of each directly conflicts and the

two are the only percipient witnesses. State v. Alexander, 64 Wn. App. 147, 154, 822

P.2d 1250 (1992); State v. Fitzgerald, 39 Wn. App. 652, 657, 694 P.2d 1117 (1985).

Therefore, declaring the victim to be telling the truth in essence opines that the defendant

is guilty. Opinions on guilt are improper whether made directly or by inference. State v.

                                              3
No. 33576-3-III
State v. Cooley (dissenting)


Quaale, 182 Wn.2d 191,199,340 P.3d 213 (2014); State v. Montgomery, 163 Wn.2d

577, 594, 183 P.3d 267 (2008).

       The majority correctly notes that Roy Cooley did not object at trial to Ruth

Landrum's vouching for the testimony of Ralph. Failure to object to the admissibility of

evidence at trial precludes appellate review of that issue unless the alleged error involves

manifest error affecting a constitutional right. State v. Lynn, 67 Wn. App. 339, 342, 835

P.2d 251 (1992); State v. Stevens, 58 Wn. App. 478, 485-86, 794 P.2d 38 (1990).

Therefore, Cooley must show manifest constitutional error.

       The Washington Supreme Court has issued several formulations for manifest

constitutional error, one of which is the showing of prejudice. State v. Kirkman, 159

Wn.2d 918, 926-27, 155 P.3d 125 (2007). Along these lines, manifest constitutional

error involves a constitutional error that had practical and identifiable consequences in

the trial of the case. State v. Lynn, 67 Wn. App. at 345 (1992).

       Lay witness testimony about the victim's credibility implicates the accused's guilt

or innocence and thus implicates the accused's right to a fair trial and impartial jury

under article I, section 21 of the Washington State Constitution and the Sixth Amendment

to the United States Constitution. State v. Johnson, 152 Wn. App. 924, 934, 219 P.3d

958 (2009). The admission of testimony vouching for a witness is constitutional error

because such evidence violates the defendant's constitutional right to a jury trial, which

includes the independent determination of the facts by the jury. State v. Quaale, 182

                                             4
No. 33576-3-111
State v. Cooley (dissenting)


Wn.2d at 199 (2014); State v. Kirkman, 159 Wn.2d at 927 (2007); State v. Florczak, 76

Wn. App. 55, 74, 882 P.2d 199 (1994). Vouching testimony is also manifest error

because the erroneous evidence actually affects an accused's right to a fair trial. State v.

Johnson, 152 Wn. App. at 934.

       Upon a showing by the appellant of constitutional error, the State must show that

the error was harmless beyond a reasonable doubt. State v. Miller, 131 Wn.2d 78, 90,

929 P .2d 372 ( 1997). Manifest constitutional error is harmless only if the untainted

evidence is so overwhelming that it necessarily supports a guilty verdict. State v. Guloy,

104 Wn.2d 412,426, 705 P.2d 1182 (1985); State v. Jones, 71 Wn. App. 798,813,863

P .2d 85 ( 1993 ). Any error that infringes on a constitutional right is presumed prejudicial.

State v. Dunn, 125 Wn. App. at 593 (2005).

       The majority writes that the appellant cannot show prejudice if his trial counsel's

failure to object appears to be strategic. State v. Kirkman, 159 Wn.2d at 937 (2007).

Nevertheless, the majority does not disclose whether it concludes the decision not to

object was strategic. During closing, trial defense counsel laid no emphasis on Ruth

Landrum's vouching for Ralph to support a theory that Landrum influenced Ralph's

memory in order to retaliate against Cooley. Therefore, objecting to the testimony lacks

a tactical foundation.

       Four Washington decisions compel reversal of Roy Cooley's guilty conviction. In

State v. Sutherby, 138 Wn. App. 609, 158 P.3d 91 (2007), ajf'd on other grounds, 165

                                              5
No. 33576-3-III
State v. Cooley (dissenting)


Wn.2d 870,204 P.3d 916 (2009), a jury convicted Randy Sutherby of child rape and

child molestation, among other charges. This court reversed because the trial court

allowed the victim's mother to testify that her daughter was telling the truth. The mother

stated she could determine if her daughter lied because of a half-smile that appeared on

the child's face on prevarication.

       The majority distinguishes State v. Sutherby on the ground that the mother, in

Sutherby, provided some details as to how she determined if her daughter told the truth.

The mother mentioned that, when the daughter lied, the daughter had a half-smile. Thus,

the mother in Sutherby took measures to judge whether her daughter told the truth. The

mother also impliedly suggested to the jury to judge the daughter's truthfulness, when the

daughter testified before the jury, by her facial expression.

       Ruth Landrum gave no suggestions to the jury as to how to assess Ralph's

veracity. Nevertheless, Landrum also took measures outside of court to determine if

Ralph told the truth. She did not immediately conclude that Ralph told the truth. Instead,

at least according to her, she confronted Roy Cooley with the allegations. She then spoke

to Ralph again, and Ralph cried about Cooley denying the allegations. From this, the jury

could conclude that Landrum, like the mother in Sutherby, took measures to assess the

credibility of her child. As in Suther by, Ruth Landrum's testimony prevented the jury

from independently assessing the victim's credibility. Anyway, other Washington

decisions consider a witness's testimony of the truthfulness of a child to be manifest

                                              6
No. 33576-3-III
State v. Cooley (dissenting)


constitutional error even if the witness does not share a basis for the jury to assess the

child's veracity.

       A second important decision is State v. Alexander, 64 Wn. App. 147 (1992). The

prosecution questioned the victim's counselor, David Bennett, about whether the victim

gave any indication that she was lying about the abuse. Bennett testified he did not

believe the victim lied. This court reversed the conviction of Robert Alexander for child

rape. By declaring the victim to be speaking the truth, Bennett essentially opined on the

guilt of Alexander. An expert's opinion as to the defendant's guilt invades the jury's

exclusive function to weigh the evidence and determine credibility. Without analysis,

this court also concluded that the error, combined with other error, was not harmless

beyond a reasonable doubt.

       Another important decision is State v. Dunn, 125 Wn. App. 582 (2005). This

court reversed another conviction for rape of a child on the ground of inadmissible

testimony. Physician's assistant, James Kramer, testified that, despite an absence of any

physical evidence of rape, he concluded that sexual abuse occurred because of the

detailed story told him by the victim. The impermissible testimony was prejudicial

because the only evidence of sexual abuse was the child's own testimony and hearsay

statements to others. The evidence was sufficient to convict Larry Dunn of rape, but still

not harmless. The trial became a credibility contest between the alleged victim and the

accused.

                                              7
No. 33576-3-111
State v. Cooley (dissenting)


       A final compelling decision is State v. Johnson, 152 Wn. App. 924 (2009). The

State charged Gerald Johnson with child molestation. His trial counsel failed to object to

impermissible opinion testimony. The jury heard testimony that Johnson's wife believed

the story of the victim. The court held the testimony to be reversible and manifest

constitutional error. The testimony invaded Johnson's right under article I, section 2 of

the Washington Constitution for a fair trial before an impartial jury.

       The untainted evidence against Roy Cooley does not overwhelm. Other evidence

undermines the veracity of Ralph's accusation against Roy Cooley. Ralph stated he

disclosed the molestation to his mother in the hallway. Ruth Landrum declared that the

disclosure came in the bathroom. At trial, Ralph testified that a drawing he made of the

incident was a drawing of his father sitting on a cactus. Because of a difficult ending of

her relationship with Cooley, Landrum had motive to plant in Ralph's mind the idea of

Cooley engaging in wrongdoing. Testimony showed that Ralph may have viewed

pornography that included oral sex. During the forensic interview of Ralph, the jury saw

Landrum speaking to her son before the interview commenced. Although, Landrum told

Ralph to tell the truth, the jury could not hear all of what Landrum told her child. We do

not know if Landrum considered the only truth to be molestation. During the interview,

Ralph, without any prompting by the interviewer, volunteered that his daddy put Ralph's

mouth on his daddy's penis.

       The trial pitted the veracity of Ralph against Roy Cooley. Ruth Landrum' s

                                             8
No. 33576-3-III
State v. Cooley (dissenting)


opinion of her son Ralph being one hundred percent truthful impacted the heart of the

case. At a minimum, the State cannot show beyond a reasonable doubt that Landrum's

testimony did not influence the verdict.

       The majority writes that defense counsel mentioned the mother's statements in

closing. Nevertheless, the majority does not specify which of the many statements

uttered by the mother that defense counsel referenced. Presumably the majority writes

about defense counsel mentioning Ruth Landrum's vouching testimony and presumably

the majority considers defense counsel's reference to the testimony to excuse the

admission of the vouching evidence. Nevertheless, a review of the closing statement

does not show that defense counsel told the jury that Ruth Landrum believed her son

Ralph one hundred percent. The majority gives no citation to the record where counsel

allegedly commented on Landrum's vouching for her son's veracity.

       The majority writes that Roy Cooley's defense was that Ruth Landrum coached

her son into making allegations against Cooley and that allowing Landrum to urge the

jury to believe her son was consistent with the defense theory. I agree that Cooley argued

that Landrum coached Ralph into making allegations because of the hostile relationship

between Cooley and Landrum caused by the difficult breakup. Nevertheless, Cooley

could forward this argument without allowing Landrum to testify she believed her son.

The State, not Cooley, introduced Landrum's testimony verifying her son's story.

       Finally, the majority intimates that a mother's vouching for a child is never

                                             9
No. 33576-3-III
State v. Cooley (dissenting)


harmful, because a parent always vouches for the veracity of a child or at least a jury

always believes that a parent vouches for his or her child's truthfulness. I disagree.

Parents frequently challenge a child's truthfulness. No case stands for the proposition

that vouching by a parent is harmless error.

       The State responds to Roy Cooley's assignment of error in the testimony from

Ruth Landrum by emphasizing that Landrum vouched for her son's veracity when

answering questions about why she delayed reporting molestation to law enforcement.

No case law excuses the impermissible vouching on the basis of an independent reason

for admitting the opinion. Landrum could have answered the questioning about her delay

by stating she wanted to investigate further or she wanted to speak with Roy Cooley first,

without Landrum uttering that she later believed her son.

       Roy Cooley also argues on appeal that he establishes manifest constitutional error

on the basis that he received ineffective assistance of counsel by reason of his trial

attorney's failure to object to the testimony of Ruth Landrum vouching for Ralph's

veracity. Since manifest constitutional error exists on the ground that Cooley did not

receive a fair trial before an impartial jury, I do not address Cooley's alternative ground.

       On the basis alone that Ruth Landrum's opining on her son's truthfulness

constituted manifest constitutional error, I would grant Roy Cooley a new trial. Other

cumulative mistakes also compel reversal of the verdict of guilty. Cumulative error may

warrant reversal, even if each error standing alone would otherwise be considered

                                               10
No. 33576-3-III
State v. Cooley (dissenting)


harmless. State v. Weber, 159 Wn.2d 252,279, 149 P.3d 646 (2006); State v. Greiff, 141

Wn.2d 910, 929, 10 P.3d 390 (2000).

                                   Filing Criminal Charges

       In response to Roy Cooley's testimony that Ruth Landrum filed stalking charges

against him, the State called to the stand Robert Salinas, a law enforcement officer who

investigated the stalking charges. The prosecution asked a series of questions about who

decides to file criminal charges: the officer, the prosecutor's office, or a judge. Salinas' s

answer to the question had no relevance to the charges against Roy Cooley for child rape.

The identity of the decision-maker with regard to charges in a separate prosecution has no

bearing on the guilt or innocence of one charged with rape. The identity of the decision-

maker did not even hold relevance with regard to the dismissed charge of stalking. The

State possessed no legitimate purpose for introducing the evidence. Nevertheless, the

court overruled an objection from Cooley as to the relevance of the testimony. Officer

Salinas testified alternatively that the officer, the prosecutor, and the court, or a

combination of two of the three made the decision.

       On appeal, Roy Cooley does not quarrel about the relevance of the testimony of

Officer Robert Salinas. Instead, he argues the testimony constituted an impermissible

and unconstitutional judicial comment on the evidence. I agree with the majority, that

Salinas's confusing testimony did not constitute a judicial comment. Cooley forwards no

case that holds a judicial comment on the evidence can be uttered by a witness, not the

                                              11


                                                                                                 I
No. 33576-3-III
State v. Cooley (dissenting)


judge. I also concur with the majority that, by itself, Officer Salinas's befuddling

testimony was not sufficiently harmful to merit a reversal. Still, the evidence could have

led Roy Cooley's jurors to conclude that the judge held some authority in determining

whether the State files charges, including those charges the jury reviewed.

                                          Shaven Hair

       During his interview by Deputy Chris Whitsett and after viewing the picture

drawn by Ralph, including the fur around the penis, Roy Cooley told Whitsett that he

could not be the molester because he shaved his pubic hair. During closing, the State

argued:

              I know there was three additional facts that he supplies (inaudible).
       But consider it this way: If, in fact, at that point-if, in fact, unless he had
       grown back the pubic hair, he's still shaved, great opportunity, literally, to
       prove (inaudible) pull down your pants and you show the officer. Would
       that have been good evidence? You're damn right that would have been
       good evidence.

Report of Proceedings (RP) at 765. On appeal, Cooley contends that the prosecution, by

this comment, shifted the burden of proving his innocence on him. The majority does not

decide whether the State's comment constituted an impermissible shifting of the burden

of proof. Instead, the majority summarily declines review because Cooley's counsel did

not object to the remarks during trial.

       A defendant has no duty to present evidence; the State bears the entire burden of

proving each element of its case beyond a reasonable doubt. In re Winship, 397 U.S.


                                              12
No. 33576-3-111
State v. Cooley (dissenting)


358,361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Fleming, 83 Wn. App. 209,

215,921 P.2d 1076 (1996). Thus, the State may not suggest to the jury that the defendant

carries any burden to prove his innocence. State v. Traweek, 43 Wn. App. 99, 107, 715

P .2d 1148 ( 1986). In a different but related vein, a criminal defendant has no burden to

present evidence, and the State commits error if it suggests otherwise. State v. Berube,

171 Wn. App. 103, 117,286 P.3d 402 (2012). Arguments by the prosecution that shift or

misstate the State's burden to prove the defendant's guilt beyond a reasonable doubt

constitute misconduct. State v. Lindsay, 180 Wn.2d 423, 434, 326 P.3d 125 (2014).

       The State argues that the prosecution's remarks were intended to tell the jury what

the normal or average person would do if accused of rape and asserted a defense that he

shaved his genitals. Thus, according to the State, the remarks attacked Roy Cooley's

credibility. But the remarks went further. The prosecution advised the jury that an

accused would willingly pull down his pants in front of a law enforcement officer to

prove his innocence. The prosecution's remark thereby told the jury that Roy Cooley

held a burden to convince Deputy Chris Whitsett that he was not the molester by

exposing his genitals. According to the closing remarks, the exposed penis would be

"good evidence." Thus, the State indirectly faults Cooley for failing to present evidence.

       The State also contends that the prosecution's remarks did not shift the burden at

trial, because the prosecution did not comment that Roy Cooley needed to expose his

genitals in the courtroom. According to the State, the prosecution argued that Cooley

                                             13
No. 33576-3-III
State v. Cooley (dissenting)


should have presented evidence to the officer, not to the jury. Although this

characterization of the closing remarks is accurate, the distinction between presenting

evidence during the investigation and offering evidence to the jury is misplaced. The

State provides no case law that recognizes this distinction as valid under the

constitution's prohibition of imposing any burden on the defendant. The State provides

no authority to support its theory that it may argue Cooley holds some obligation to

provide evidence to law enforcement, as long as the prosecution does not expressly argue

that there is no such corresponding obligation to present evidence to the jury.

       Roy Cooley had no burden to prove his innocence to Deputy Chris Whitsett, let

alone to the jury. The State's closing argument was essentially that Cooley should have

proven his innocence to the officer in order to prove his innocence to the jury. The

State's argument told the jury that Cooley should have presented evidence to the

investigating officer as part of his efforts to eventually win at trial.

       The majority correctly notes that, if the defense failed to object at trial to the

prosecution's argument, we will not review the assignment of error unless the misconduct

was so flagrant and ill-intentioned that a curative instruction could not eliminate the

resultant prejudice. State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).

Unfortunately, the law lacks guidelines to determine when prejudice can be eliminated by

a curative instruction. Nevertheless, Washington courts consistently hold that shifting the

burden of proof to the defendant amounts to flagrant and ill-intentioned misconduct. In

                                               14
No. 33576-3-III
State v. Cooley (dissenting)


re Personal Restraint of Glasmann, 175 Wn.2d 696, 713, 286 P.3d 673 (2012); State v.

Fleming, 83 Wn. App. at 213-14 ( 1996).

                                   Mother Lying to Win

       During closing argument, the prosecution declared:

             lfwe go on the defense theory part one ofit's [Ruth], that's what
       you have to believe.

RP at 750. I agree with the majority that the statement, in context, told the jury that Roy

Cooley blames Ruth Landrum for the rape charges and, to acquit Cooley, the jury must

find Landrum prevaricating. The State's argument mistakenly told the jury that Cooley is

innocent only if Ruth Landrum is lying. Nevertheless, Cooley could also be found

innocent if the jury concluded that Ralph falsely remembered the alleged rape regardless

of what Ruth Landrum may have told Ralph and regardless of the veracity of Landrum.

       The majority agrees that the prosecution's statement is improper. Nevertheless,

the majority will not review the assignment of error because defense counsel did not

object to the argument at trial.

       Washington courts have repeatedly held that a prosecutor commits misconduct

when informing a jury that, in order to acquit a defendant, the jury must find that the

State's witnesses are either lying or mistaken. State v. Casteneda-Perez, 61 Wn. App. at

362 (1991); State v. Wright, 76 Wn. App. at 826 (1995); State v. Barrow, 60 Wn. App. at

874-75 (1991). Such an argument by the prosecution misstates the law and misrepresents


                                             15
No. 33576-3-III
State v. Cooley (dissenting)


both the role of the jury and the burden of proof. State v. Fleming, 83 Wn. App. at 213

(1996). By misstating the basis on which a jury can acquit, the State insidiously shifts the

requirement that it prove the defendant's guilt beyond a reasonable doubt. In re Personal

Restraint of Glasmann, 175 Wn.2d at 713 (2012).
                                                                                               I
       This court may not avoid the error on the ground that defense counsel forwarded         I
                                                                                               f
no objection during trial. This court deems an argument, that to acquit someone must lie,

to be a flagrant and ill-intentioned violation of the rules governing a prosecutor's conduct
                                                                                               I
at trial. State v. Fleming, 83 Wn. App. at 214. In State v. Fleming, the prosecutor stated     I
during closing argument that, to find the defendants not guilty of rape, the jury would        II
need to "find either that [the victim] has lied about what occurred in that bedroom or that

she was confused; essentially that she fantasized what occurred back in that bedroom."         I
83 Wn. App. at 213 (italics omitted). We reversed the conviction and remanded the case

for a new trial, despite trial counsel's failure to object to the closing remarks.

       I respectfully dissent.

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                                            Fearin~\
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