                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                           July 16, 2019




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                               No. 50934-2-II

                Respondent/Cross Appellant,                    UNPUBLISHED OPINION

        v.

 RONALD WITTHAUER,

                Appellant/Cross Respondent.

       GLASGOW, J. — Ronald Witthauer appeals from his convictions of second degree rape

and indecent liberties with forcible compulsion, where his victim was his adult niece, CZ. At

trial, the State presented DNA and other physical evidence, whereas Witthauer’s account of what

happened changed several times up to and including at trial.

       Witthauer argues that the trial court erred when it prevented him from cross-examining

CZ about the prior revocation of her pharmacy technician license and that the prosecutor

committed misconduct during cross-examination of him and during closing argument. He also

asserts cumulative error deprived him of a fair trial. He contends that the court erred in imposing

a condition of community custody requiring him to obtain a chemical dependency evaluation.

He also filed a statement of additional grounds.
No. 50934-2-II


          The State cross-appeals, arguing the trial court improperly merged Witthauer’s

convictions of second degree rape and indecent liberties with forcible compulsion during

sentencing.

          We affirm Witthauer’s convictions. We affirm in part and reverse in part Witthauer’s

sentence and remand for the trial court to either make the requisite chemical dependency finding

or strike the challenged community custody condition.

                                                 FACTS

                            I. CZ’S ALLEGATIONS AND THE INVESTIGATION

          CZ1 and her friend took their children swimming at a river on a midsummer day. While

they were there, CZ was talking to Witthauer about his recent breakup, first via Facebook and

then via phone call. Witthauer told CZ he was depressed about the breakup and asked her if she

would meet him so they could talk.

          Witthauer, driven by his friend, Dan Hainley, then picked CZ up from a nearby Wal-Mart

while her friend took the children to her house. CZ’s friend testified that the plan was for CZ to

come pick up her son later that evening.

          Witthauer was visibly intoxicated when he arrived. CZ denied drinking or consuming

drugs earlier that day, but she did have a couple sips of vodka in the car as Hainley drove them.

Rather than take CZ home as she expected, Hainley drove them to the home of CZ’s

grandmother (Witthauer’s mother), where Witthauer had a motor home parked on the property.

          Witthauer asked CZ to stay and have a beer with him, and she agreed to stay for a short

while. Witthauer then brought CZ a beer—already opened—and they sat outside and started to


1
    We use initials to protect the victim’s privacy.

                                                       2
No. 50934-2-II


drink. After a few sips, CZ began to feel dizzy; she tried to stand but fell down because her legs

“were like jello.” Verbatim Report of Proceedings (VRP) (Vol. 3) at 219-20. CZ testified that

she was terrified and wanted to call her husband, but she had left her phone in Hainley’s truck.

       Witthauer picked CZ up and carried her into the motor home, telling her that she was

drunk and she needed to “sleep it off.” VRP (Vol. 3) at 220-21. CZ said she yelled at Witthauer

to call her husband to pick her up and take her home; Witthauer told CZ he had called her

husband, but she did not believe him. Witthauer put her on the bed in the motor home, and then

went back outside with Hainley.

       CZ testified that she laid face down on the bed, unable to move, until she eventually lost

consciousness. She woke up to the sound of Hainley’s truck starting up and Hainley and

Witthauer saying goodbye as Hainley drove off.

       Witthauer then came into the motor home and asked CZ if she wanted to have sex with

him. CZ, still unable to move, told him: “No; you’re not funny. This is why people don’t like

you when you drink.” VRP (Vol. 3) at 225. Witthauer responded that he was not joking and

asked again if CZ wanted to have sex. She again said no, but Witthauer got on the bed and

straddled the backs of her legs. CZ tried to push him away, but he grabbed her arm and pinned it

to the bed as he pulled down her pants. CZ then tried to protect her vagina with her hand, but

Witthauer pulled it away, pressed down on her neck, and put his penis in her vagina. At some

point during the rape, Witthauer also put his finger in CZ’s anus. CZ lost consciousness during

part of the rape, but was awake when Witthauer finished, at which point he threw a blanket over

her, told her he loved her, and went to bed a few feet away.




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No. 50934-2-II


       CZ eventually got up and tried to leave, but the door was locked so she was forced to

spend the night in the motor home. She testified that she was terrified and thought Witthauer

would kill her if she tried to get away. She also testified that she never thought he would do

something like that to her, and she never would have gone with him that day if she had not

trusted him as her uncle.

       The next morning, Witthauer behaved as though nothing had happened. He told CZ her

husband had been calling his phone. Witthauer then called CZ’s husband and put the phone on

speaker and stayed with CZ as she talked to her husband. CZ testified that she did not tell her

husband anything about the rape because Witthauer was standing right there with the phone on

speaker.

       Witthauer then drove CZ home, still acting as though nothing had happened. They

stopped to see Witthauer’s friend, Tom Goringe, on their way, but CZ did not disclose anything

to Goringe because she was humiliated and worried about what Witthauer might do. CZ testified

that her goal was to “get out of that car alive” and to “[g]et home safe.” VRP (Vol. 3) at 235-36.

       When CZ got home, she called a close friend, Ramona Lowe, and disclosed what

happened. Lowe testified that CZ was hysterical and crying so much she could barely talk.

Lowe told CZ to call the police and go to the hospital for a sexual assault examination. CZ and

her husband went to a hospital in Portland, Oregon later that day, where she underwent a sexual

assault examination and made a report to the police.

       CZ told her examining nurse, Jane Valencia, about how Witthauer had raped her and held

her down by her neck. During the examination Valencia noted abnormal redness and swelling in

and around CZ’s vagina, white fluid in her vagina, and scratches on CZ’s arms and the back of


                                                 4
No. 50934-2-II


her neck. However, Valencia could not say whether the vaginal redness and swelling resulted

from the rape or from CZ’s sexual intercourse with her husband two days prior. Valencia took

blood and urine samples from CZ, and also collected oral, vaginal, and cervical swabs.

       CZ’s blood samples showed no signs of drugs or alcohol, but her urine samples contained

alcohol and the prescription drug clonazepam, a central nervous system depressant that slows

down brain activity, impairs motor skills, and can cause drowsiness and confusion, particularly

when combined with alcohol. Justin Knoy, a forensic toxicologist, testified that the test results

were consistent with a person consuming alcohol and clonazepam about 12 hours prior to the

sample being taken, though consumption could have occurred earlier or later.

       In early August, Detective Elizabeth Luvera interviewed Witthauer, who told her that CZ

was drunk when he picked her up, that he slept in his truck that night, and that he did not have

sex with CZ. Witthauer also voluntarily gave Luvera a sample of his DNA.

       CZ said that she and her husband use condoms when they have sex because she has a

sensitivity to semen that causes a burning sensation; she testified that she knew Witthauer had

ejaculated in her because her vagina was burning badly. The sample that Witthauer provided

matched DNA from sperm cells found in CZ’s vaginal and cervical swabs. After receiving the

DNA results, Detective Fred Nieman went to Witthauer’s motor home and took him into

custody. Also after the DNA test results revealed his DNA was in CZ’s vagina, Witthauer told

family members that there was a conspiracy against him to plant his DNA inside CZ.

                                II. PRETRIAL MOTION AND ORDER

       Before trial, the State moved to exclude extrinsic evidence and limit cross-examination

regarding the Oregon Board of Pharmacy’s prior revocation of CZ’s pharmacy technician


                                                 5
No. 50934-2-II


license. Witthauer sought to admit a letter from the Board to CZ, along with a certified copy of a

default order against her, revoking her license based on an allegation that she had used patients’

prescriptions to illegally obtain oxycodone for her own use. The trial court noted on the record

that the order was entered by default, because CZ never responded to the notice of proposed

disciplinary action.

       The trial court found that whether CZ dishonestly obtained prescriptions and then

diverted oxycodone was probative of CZ’s truthfulness. The trial court ruled that the defense

could ask whether she did these things on cross-examination. But under ER 608(b), the inquiry

would end with CZ’s answer and Witthauer could not further inquire, even if she denied it. The

court also ruled that Witthauer could not ask CZ about her license revocation or present extrinsic

evidence to show her license had been revoked. The court reasoned that the revocation order

       does not state where the allegations arose from; in other words, which people
       advised the investigator, or testified at the hearing, or otherwise let the Board of
       Pharmacy know that [CZ] was alleged to have done these things in December of
       2014. There’s no admission or other indication from her that, in fact, she did these
       things, only that she didn’t contest the proceeding.

VRP (Vol. 1) at 37.

                       III. RELEVANT TRIAL TESTIMONY AND ARGUMENT

       At trial, during his cross-examination of CZ, defense counsel asked if she had ever been

“accused” of diverting oxycodone, but the State objected based on the court’s pretrial ruling and

the court sustained the objection. VRP (Vol. 4) at 295. Defense counsel then asked if CZ had

ever diverted oxycodone for her own use, and she said she had not. Counsel asked once more,

and CZ again said “[n]o.” VRP (Vol. 4) at 295. Counsel then moved on to another line of

inquiry.


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No. 50934-2-II


       A DNA expert testified to the DNA match. During his testimony, Witthauer admitted

that he had sex with CZ, but said it was consensual. Witthauer also admitted that he had lied

many times to detectives and his friends and family when he said he had not had sex with CZ,

and he invented a conspiracy theory in order to protect himself.

       During cross-examination, the State asked Witthauer how many nieces he had, and how

many of them he had had sex with. Witthauer responded that he had four nieces, and he had had

sex with one of them. The State responded: “Would that answer change if there was DNA

evidence about other people?” VRP (Vol. 7) at 780. Defense counsel promptly objected, and

the trial court sustained the objection, instructing the jury to “[d]isregard any questions or

answering concerning allegations of misconduct with anyone else.” VRP (Vol. 7) at 781. The

State then moved on to another topic.

       As a final and last minute witness, Witthauer called CZ’s mother. Defense counsel tried

to elicit from her details about multiple phone calls to family members that CZ allegedly made

on the day of the rape. Defense counsel apparently hoped to support the defense theory that CZ

was upset with her husband that day and had turned to consensual sex with her uncle for comfort.

CZ’s mother testified that she could not remember the details of that day and that she had

significant health problems, including recent strokes, that affected her memory.

       The trial instructed the jury that “[a] reasonable doubt is one for which a reason exists

and may arise from the evidence or lack of evidence.” Clerk’s Papers (CP) at 23. In closing

argument, the prosecutor reiterated the definition of a “reasonable doubt” as “a doubt for which a

reason can be given.” VRP (Vol. 8) at 856. Witthauer did not object.




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No. 50934-2-II


       Also during closing argument, as part of a broader discussion of the relative credibility of

witnesses, the prosecutor discussed Witthauer’s last minute decision to call CZ’s mother as a

defense witness. The prosecutor noted CZ’s mother’s serious medical and memory problems

and said: “And you know, that—that’s just really kind of a shame. . . . I don’t say that to be,

you know, rude to her. But, I mean, what is that? Who hangs their hat on that in a case? Why

would you even present that evidence if not as a distraction? It’s just—it’s a shame.” VRP (Vol.

8) at 876-77. Witthauer did not object.

       The jury convicted Witthauer of second degree rape and indecent liberties with forcible

compulsion. The jury also found that he had used his position of trust, confidence, or fiduciary

responsibility to facilitate the commission of both crimes.

                                          IV. SENTENCING

       During sentencing, the court stated in its oral ruling that the two crimes merged, and that

it would only sentence Witthauer on his conviction for second degree rape. The State disagreed,

noting that merger and same criminal conduct are different concepts. The trial court did not

revisit the issue in the hearing. However, in its final written ruling, the court found that the two

crimes encompassed the same criminal conduct. The court sentenced Witthauer to 144 months

to life imprisonment. The court also imposed a condition of community custody requiring

Witthauer to complete a chemical dependency evaluation, without making a finding that such a

dependency had contributed to the commission of his crimes.

       Witthauer appeals his conviction and sentence, and the State cross-appeals the court’s

verbal finding that the two crimes merged.




                                                  8
No. 50934-2-II


                                             ANALYSIS

                                   I. CROSS-EXAMINATION OF CZ

        Witthauer argues the trial court denied him his right of confrontation by limiting the

scope of his cross-examination of CZ. Specifically, he asserts the trial court improperly

prevented him from asking her about the disciplinary proceeding that led to the revocation of her

pharmacy technician license. We disagree.

A.      Right of Confrontation, ER 608(b), and Standard of Review

        Criminal defendants have a constitutional right to confront and cross-examine adverse

witnesses. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; Davis v. Alaska, 415 U.S. 308,

315, 94 S. Ct. 1005, 39 L. Ed. 2d 347 (1974). In State v. Jones, our Supreme Court reiterated its

analysis for determining whether the exclusion of evidence violates a defendant’s constitutional

right to present a defense. 168 Wn.2d 713, 720, 230 P.3d 576 (2010). The evidence that a

defendant desires to introduce “‘must be of at least minimal relevance’” because a defendant has

no right to present irrelevant evidence. Id. (quoting State v. Darden, 145 Wn.2d 612, 622, 41

P.3d 1189 (2002)). To prevail on a claim that he was deprived of his Sixth Amendment right,

the defendant must at least make some plausible showing of how the subject of his cross-

examination would have been both material and favorable to his defense. State v. Gonzalez, 110

Wn.2d 738, 750, 757 P.2d 925 (1988); see also United States v. Valenzuela-Bernal, 458 U.S.

858, 867, 102 S. Ct. 3440, 73 L. Ed. 2d 1193 (1982).

        Even though there has been a recent split of authority about the structure of the legal test

for establishing a Sixth Amendment violation when a trial court excludes a defendant’s proffered

evidence, all of the cases agree that our first step is to review for abuse of discretion the trial


                                                   9
No. 50934-2-II


court’s assessment of whether the excluded evidence was relevant. State v. Lee, 188 Wn.2d 473,

486-88, 396 P.3d 316 (2017); State v. Clark, 187 Wn.2d 641, 648-49, 389 P.3d 462 (2017); State

v. Blair, 3 Wn. App. 2d 343, 350-52, 415 P.3d 1242 (2018); State v. Horn, 3 Wn. App. 2d 302,

310-11, 415 P.3d 1225 (2018).

       In this case, Witthauer argued in the trial court that he should have been permitted to

cross-examine CZ about her license revocation based on ER 608(b). Under that rule, a party

may inquire into specific instances of a witness’s prior conduct, for purposes of impeachment, if

the conduct is probative of the witness’s truthfulness or untruthfulness. ER 608(b). Conduct

involving fraud or deception can be indicative of the witness’s general disposition with regard to

truthfulness. State v. Johnson, 90 Wn. App. 54, 71, 950 P.2d 981 (1998). However, a witness’s

prior bad act may not be relevant when it is unrelated to the issues of the case. “The

confrontation clause primarily protects ‘cross-examination directed toward revealing possible

biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or

personalities in the case at hand.’” Lee, 189 Wn.2d at 489 (quoting Davis, 415 U.S. at 316).

Although a trial court’s ruling limiting the scope of a defendant’s cross-examination of a witness

under ER 608(b) may implicate the constitutional right to confrontation, a defendant nevertheless

has no constitutional right to the admission of irrelevant evidence. See State v. O’Connor, 155

Wn.2d 335, 348-49, 119 P.3d 806 (2005).

       Moreover, ER 608(b) expressly does not permit introduction of extrinsic evidence to

prove specific instances of conduct. Instead, the party attacking the witness’s credibility may

only inquire into those instances on cross-examination. ER 608(b). “Specific instances on the

conduct of a witness . . . may not be proved by extrinsic evidence.” ER 608(b). As a result, if a


                                                 10
No. 50934-2-II


witness denies the alleged conduct, the examining attorney cannot impeach using extrinsic

evidence.

       ER 608(b) expressly leaves the scope of cross-examination “in the discretion of the

court.” We therefore review a trial court’s decision to admit or exclude evidence under ER

608(b) for abuse of discretion. See Lee, 188 Wn.2d at 486. Even where a defendant raises a

Sixth Amendment argument regarding the exclusion of evidence, we review for abuse of

discretion whether the trial court properly evaluated the relevance or probative value of the

evidence. See, e.g., Id. at 486-88; Clark, 187 Wn.2d at 648-49.

B.     Evidence of CZ’s License Revocation

       Witthauer argues the trial court erred in limiting cross-examination to asking CZ only

whether she had ever diverted oxycodone for her own use. He was not permitted to ask whether

she had ever been accused of doing so or ever had her pharmacy technician license revoked in a

disciplinary proceeding for that reason. He argues that an inquiry into the disciplinary

proceeding was relevant because “CZ’s credibility was the linchpin of the State’s case, and her

history of dishonest conduct [Witthauer’s] most cogent line of defense.” Br. of Appellant at 24.

Witthauer reasons that an inquiry into disciplinary proceedings for diverting oxycodone was also

relevant because CZ claimed she did not know how the clonazepam got into her system,

implying that Witthauer had drugged her.

       However, the trial judge explained on the record that CZ’s license revocation occurred as

the result of a default order against her because she never responded to the allegations.

Therefore, evidence of her license revocation was not probative of her truthfulness because all it




                                                11
No. 50934-2-II


would demonstrate was that she was accused of doing something dishonest and she did not

respond to the accusation, not that she actually engaged in any dishonest conduct.

       We hold that the trial court did not abuse its discretion. Testimony or evidence that

actually demonstrated that CZ committed dishonest acts would be relevant to her truthfulness,

and the trial court engaged in the appropriate ER 608(b) analysis allowing cross-examination of

the alleged dishonest conduct—whether she diverted oxycodone. But the Board’s default order

shows only that she was accused of dishonesty and did not contest the resulting disciplinary

proceeding. Such evidence is not relevant. Nor would it be reliably probative of whether she

actually committed the acts she was accused of because parties default for reasons other than

guilt. It was within the trial court’s discretion to allow cross-examination regarding whether CZ

had ever committed the specific instances of dishonest conduct, but to prohibit any inquiry into

whether she had been accused of or disciplined for such conduct, when evidence of this

particular disciplinary proceeding would not reveal the truth of the underlying accusation.

       We hold that the trial court properly limited Witthauer’s cross examination. Because a

disciplinary proceeding resolved by default was not relevant or probative, its exclusion did not

violate ER 608 or the Sixth Amendment.

                                II. PROSECUTORIAL MISCONDUCT

       Witthauer claims the prosecutor committed misconduct during his cross-examination of

Witthauer, when arguing the State’s burden of proof, and when commenting on the role of

defense counsel. We conclude that none of the challenged statements require reversal.




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No. 50934-2-II


A.     Burden to Show Prosecutorial Misconduct

       To prevail, Witthauer bears the burden to show that the prosecutor’s conduct was both

improper and prejudicial in the context of the entire record and the circumstances at trial. See

State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011). When a claim is made that the

prosecutor committed misconduct during closing argument, we review the prosecutor’s

statements “within the context of the prosecutor’s entire argument, the issues in the case, the

evidence discussed in the argument, and the jury instructions.” State v. Dhaliwal, 150 Wn.2d

559, 578, 79 P.3d 432 (2003).

       Where the defendant objected at trial, they must show there is a “substantial likelihood”

the improper statements affected the jury’s verdict. State v. Magers, 164 Wn.2d 174, 191, 189

P.3d 126 (2008). However, “[t]he ‘failure to object to an improper remark constitutes a waiver

of error unless the remark is so flagrant and ill intentioned that it causes an enduring and

resulting prejudice that could not have been neutralized by an admonition to the jury.’”

Thorgerson, 172 Wn.2d at 443 (quoting State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747

(1994)). Moreover, the “[f]ailure to request a curative instruction or move for a mistrial

‘strongly suggests to a court that the argument or event in question did not appear critically

prejudicial to an appellant in the context of the trial.’” In re Det. of Law, 146 Wn. App. 28, 51,

204 P.3d 230 (2008) (quoting State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990)).




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No. 50934-2-II


B.        Cross-Examination of Witthauer

          Witthauer first argues that the prosecutor committed misconduct by suggesting during

cross-examination that Witthauer had victimized his other nieces. Witthauer objected. The court

sustained Witthauer’s objection and told the jury to disregard that line of questioning. The

prosecutor moved on to another topic.

          We presume the jury follows the court’s instructions absent evidence to the contrary.

State v. Montgomery, 163 Wn.2d 577, 596, 183 P.3d 267 (2008). Where the trial court has

sustained an objection, to warrant reversal for prosecutorial misconduct, the defendant must

show a substantial likelihood the exchange affected the jury’s verdict. Magers, 164 Wn.2d at

191.

          Witthauer has failed to show that the jury ignored the trial court’s instruction that it

should disregard the questions and answers about Witthauer’s other nieces or that a substantial

likelihood exists that the exchange affected the jury’s verdict. Witthauer argues that admission

of extrinsic evidence concerning commission of other crimes is inherently difficult for the jury to

disregard, citing State v. Escalona, 49 Wn. App. 251, 255-56, 742 P.2d 190 (1987).

          This case is distinguishable from Escalona. In that case, the victim gave unsolicited

testimony that the defendant, who was charged with assaulting him with a knife, “already ha[d] a

record and had stabbed someone.” Escalona, 49 Wn. App. at 255. On appeal, the court held that

although the trial court had sustained Escalona’s objection and instructed the jury to disregard

the testimony, the statement was “inherently prejudicial,” in light of the weakness of the State’s

case, because it suggested the defendant had committed a nearly identical crime in the past. Id.

at 256.


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No. 50934-2-II


       Here, unlike in Escalona, there was a brief series of questions from the prosecutor

improperly implying that Witthauer may have victimized his other nieces, but there was no

testimony to lend credence to the improper questioning. Given the brief exchange, Witthauer’s

denial, the court’s swift and decisive ruling on the matter, and the instruction to the jury to

disregard the question, it is unlikely the jury understood the questions to mean that Witthauer had

committed other crimes. Also, defense counsel’s failure to move for mistrial suggests he did not

conclude that the State’s question so prejudiced the jury that it would deprive Witthauer of a fair

trial. See Law, 146 Wn. App. at 51.

       Furthermore, the State’s evidence here was not weak. CZ’s account of what happened

was unwavering from the morning after the incident through trial. Her testimony was

corroborated by DNA evidence as well as visible physical injuries observed on the day after the

rape. Witthauer constantly changed his account of what happened. He initially denied sexual

contact with CZ. Then, after DNA results showed the presence of his semen in CZ’s vagina, he

said there was a conspiracy to steal his DNA and plant it on CZ. At trial Witthauer testified that

he had consensual sex with CZ.

       The prosecutor’s questions here, while improper, were not so prejudicial in light of all of

the evidence that they denied Witthauer a fair trial. We hold that Witthauer has not shown a

substantial likelihood that the State’s line of questioning improperly affected the jury’s verdict.

C.     State’s Explanation of Its Burden of Proof

       Next, Witthauer argues the prosecutor committed misconduct by misstating the

reasonable doubt standard thereby shifting the burden of proof to the defense during closing

argument. Specifically, Witthauer argues the prosecutor’s statement here is analogous to “fill-in-


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No. 50934-2-II


the-blank” arguments, which Washington courts have held to be improper. Br. of Appellant at

35. We disagree.

        In closing, the prosecutor recited the definition of a “reasonable doubt” as “a doubt for

which a reason can be given.” VRP (Vol. 8) at 856. Witthauer did not object. The court’s

actual instructions to the jury defined “reasonable doubt” as “one for which a reason exists and

may arise from the evidence.” CP at 23

        “[T]he law does not require that a reason be given for a juror’s doubt.” State v.

Kalebaugh, 183 Wn.2d 578, 585, 355 P.3d 253 (2015). It is improper for the State to argue, “in

order to find the defendant not guilty, you have to say ‘I don’t believe the defendant is guilty

because,’ and then you have to fill in the blank.” State v. Anderson, 153 Wn. App. 417, 431, 220

P.3d 1273 (2009) (quoting VRP (Vol. 4) at 327-28). But, the Anderson court explained that a

prosecutor’s statement that “a ‘reasonable doubt’ is one for which reason exists,” was “not

inaccurate.” Id. at 430

        Here, the prosecutor’s explanation of the State’s burden of proof did not amount to an

improper fill-in-the-blank argument. The prosecutor did not elaborate to suggest the jury

actually had to articulate a reason why Witthauer was innocent. Moreover, after making the

statement Witthauer complains of, the prosecutor correctly explained the State’s burden of proof,

using language that adhered to the relevant jury instruction, saying: “[I]f, as you discuss the

case, as you consider the evidence, fairly and fully, you have an abiding belief, a belief that lasts,

a belief that endures that the defendant did these things to [CZ], [then] you are convinced as the

law requires.” VRP (Vol. 8) at 856; see CP at 23. Unlike in Anderson, here, the prosecutor

directed the jurors to the instruction given by the trial court.


                                                  16
No. 50934-2-II


       In sum, the prosecutor’s statement did not impermissibly subvert Witthauer’s

presumption of innocence. It was not a fill-in-the-blank argument and, in context, it did not

suggest that Witthauer had the burden to prove his innocence. We hold this statement was not

improper.

D.     State’s Comments on Defense Counsel

       Witthauer also argues the prosecutor committed misconduct by “disparaging . . . defense

counsel” during his closing argument. Br. of Appellant at 38. In discussing CZ’s mother’s

testimony, the prosecutor noted her serious medical and memory problems and stated: “And you

know, that—that’s just really kind of a shame. . . . I don’t say that to be, you know, rude to her.

But, I mean, what is that? Who hangs their hat on that in a case? Why would you even present

that evidence if not as a distraction? It’s just—it’s a shame.” VRP (Vol. 8) at 876-77.

Witthauer did not object.

       “It is improper for the prosecutor to disparagingly comment on defense counsel’s role or

impugn the defense lawyer’s integrity.” Thorgerson, 172 Wn.2d at 451. Thorgerson held it was

improper for the prosecutor to refer to defense counsel’s arguments as “bogus” or involving

“sleight of hand” because such arguments imply “wrongful deception or even dishonesty.” Id. at

451-52. Other cases holding a prosecutor’s statement to be improper in this context have

likewise involved suggestions that defense counsel was being dishonest or untrustworthy. See

State v. Warren, 165 Wn.2d 17, 29-30, 195 P.3d 940 (2008) (claim that defense counsel’s

argument was “taking these facts and completely twisting them to their own benefit, and hoping

that you are not smart enough to figure out what in fact they are doing.”); State v. Gonzales, 111

Wn. App. 276, 283-84, 45 P.3d 205 (2002) (claim that prosecutors, unlike defense counsel, take


                                                 17
No. 50934-2-II


an oath to “see that justice is served.”); State v. Negrete, 72 Wn. App. 62, 66-67, 863 P.2d 137

(1993) (claim that defense counsel was being paid to twist the words of a witness).

       The prosecutor suggested defense counsel only called CZ’s mother as a distraction, and

in doing so impugned his integrity. The comment also disparaged the choice to rely on a witness

with CZ’s mother’s health problems. Nevertheless, Witthauer has not established that the

remark was so flagrant and ill-intentioned that it could not have been cured by instruction. See

Negrete, 72 Wn. App. at 67-68; Warren, 165 Wn.2d at 30. Therefore, because Witthauer did not

object, he waives any error.

                                     III. CUMULATIVE ERROR

       The cumulative error doctrine does not warrant reversal where the errors are few and

have little or no effect on the trial’s outcome. State v. Venegas, 155 Wn. App. 507, 520, 228

P.3d 813 (2010). Witthauer bears the burden of showing cumulative error. State v. Asaeli, 150

Wn. App. 543, 597, 208 P.3d 1136 (2009). He has failed to do so here.

       As discussed above, Witthauer waived any claim of error with respect to the prosecutor’s

statements disparaging defense counsel. And there was no error with respect to the trial court’s

limitation of his cross-examination of CZ or the State’s explanation of its burden of proof.

Hence, the State’s improper cross-examination of Witthauer was the only preserved error, and

we have already concluded that Witthauer was not prejudiced. Accordingly, we reject

Witthauer’s claim of cumulative error.




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No. 50934-2-II


                            IV. CONDITIONS OF COMMUNITY CUSTODY

       Witthauer challenges his condition of community custody that requires him to obtain a

chemical dependency assessment. We agree that this condition should be reversed.

       A trial court lacks authority to impose a community custody condition unless it is

authorized by statute. State v. Kolesnik, 146 Wn. App. 790, 806, 192 P.3d 937 (2008). In order

to require an offender to obtain a chemical dependency evaluation, the court must find that the

offender has a chemical dependency that contributed to his or her offense. RCW 9.94A.607(1);

State v. Warnock, 174 Wn. App. 608, 612, 299 P.3d 1173 (2013).

       The State concedes that the trial court made no express finding that Witthauer suffers

from chemical dependency, and so this condition must be stricken unless the court makes such a

finding on remand. We reverse the condition of community custody that requires Witthauer to

obtain a chemical dependency assessment and remand for the court to either make the requisite

finding or strike the condition.

                                     V. STATE’S CROSS-APPEAL

       In its cross-appeal, the State argues the trial court improperly merged Witthauer’s

convictions for indecent liberties and second degree rape. During sentencing, the court stated:

“I find the two cases merge, so I will not impose a separate sentence on Count II of that crime.”

VRP (Vol. 8) at 909. However, Witthauer’s judgment and sentence states only that the two

crimes constituted the same criminal conduct, a conclusion that the State agreed to at sentencing

and concedes is correct on appeal.

       Although the State claims the court “enter[ed] a finding” that the two offenses merged,

Reply Br. of Resp’t. at 1, a superior court’s verbal ruling is not binding unless it is formally


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No. 50934-2-II


incorporated into the written findings, conclusions, and judgment. In re Det. of B.M., 7 Wn.

App. 2d 70, 84, 432 P.3d 459 (2019). “When the superior court’s written findings are

unambiguous, it is unnecessary to look to the oral ruling.” Id.

        Witthauer’s judgment and sentence unambiguously listed both convictions and their

offender scores, and shows that the two convictions encompassed the same criminal conduct.

Any verbal ruling that the crimes merged was not binding, and we need not look any further than

the trial court’s unambiguous written ruling. Id. Because the State concedes the crimes

constitute same criminal conduct, the State shows no error in the judgment and sentence.

                            VI. STATEMENT OF ADDITIONAL GROUNDS

        In his statement of additional grounds, Witthauer raises several claims of ineffective

assistance of counsel. None of his claims supports reversal.

        Witthauer argues that his defense counsel was ineffective for failing to call an expert

rebuttal witness to counteract nurse Valencia’s testimony, and for failing to interview his friend,

Goringe, whom he and CZ visited the morning after the rape and who died before trial. Both of

these alleged errors rely on evidence that is outside the record before us so we do not consider

them in this direct appeal. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).

        Next, Witthauer argues he received ineffective assistance of counsel when his trial

counsel failed to object to the prosecutor’s allegedly improper remarks during closing argument

discussed above. Because we held above that the prosecutor’s comments during closing

argument did not amount to misconduct requiring reversal, counsel was not ineffective for failing

to object.




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No. 50934-2-II


                                          CONCLUSION

        We affirm Witthauer’s convictions. We affirm in part and reverse in part Witthauer’s

sentence and remand for the trial court to either make the requisite chemical dependency finding

or strike the challenged community custody condition.

        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.



                                                      Glasgow, J.
 We concur:



 Worswick, J.




 Lee, A.C.J.




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