                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                          February 13, 2019




     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                 No. 50070-1-II

                                Respondent,

         v.

 ANDREW REED MORRILL,                                          UNPUBLISHED OPINION

                                Appellant.

        JOHANSON, J.     —    Andrew Reed Morrill appeals his first degree child molestation

conviction. He alleges prosecutorial misconduct. He argues that the prosecutor’s questions were

improper because they (1) violated attorney-client privilege, (2) violated a pretrial ruling following

a CrR 3.5 hearing, (3) violated a pretrial ruling to exclude prior bad acts evidence, (4) were

argumentative, and (5) sought vouching testimony. Morrill also challenges the $200 filing fee

imposed by the superior court. We hold that Morrill’s prosecutorial misconduct claim fails but

that the criminal filing fee must be stricken. We affirm the conviction, but remand to strike the

filing fee.

                                              FACTS

                                       I. PROCEDURAL FACTS

        The State charged Morrill by first information with first degree child rape of D.F. (count

I), first degree child molestation of D.F. (count II), first degree child molestation of A.F. (count

III), communication with a minor, A.F., for immoral purposes (count IV), and indecent exposure
No. 50070-1-II


to a victim under age 14 (count V). All charges included a special allegation of an ongoing pattern

of sexual abuse. Before the first trial started, the State dismissed count V. After the first trial, the

jury returned a guilty verdict on count IV and was unable to reach a verdict on counts I, II, and III.

Morrill did not appeal his conviction from the first trial. However, several pretrial rulings from

the first trial are relevant to this appeal.

        Before the first trial, the trial court prohibited the parties from (1) referring to or describing

character traits of a person “unless previously approved by the Court via offer of proof,” (2)

referring “to consequences of punishment from conviction,” (3) referring to Morrill’s prior bad

acts “without prior approval of the court . . . outside the time frame in the information,” and (4)

“eliciting inadmissible hearsay from officers and reports or information received from third

parties.” Clerk’s Papers (CP) at 105-06, 108-09. The trial court orally stated that the scope of the

pretrial prior bad acts ruling did not cover testimony about Morrill being “discharged from his

employment due to distribution of marijuana in the school” where he worked if such testimony

followed an offer of proof and the approval of the court. 1 Report of Proceedings (RP) at 111.

        After a child hearsay hearing, the trial court ruled that D.F.’s statements to Jefferson

County Sheriff’s Detective Shane Stevenson were admissible, but that A.F.’s statements to

Detective Stevenson were inadmissible because he was “not younger than 10 years old” when he

made those statements. CP at 47. Additionally, after a CrR 3.5 hearing, the trial court ruled that

Morrill’s statements to Detective Stevenson, including that Morrill’s girlfriend, Margret “Maggie”

Radcliffe, “cut him off from sex,” were inadmissible. 1 RP at 297.

        After the first trial, the State filed a third amended information including counts I, II, and

III and retried Morrill on those counts. Before the second trial, the parties stipulated that the trial


                                                    2
No. 50070-1-II


court’s rulings on the admissibility of the child hearsay statements of D.F. and A.F. to Stevenson

before the first trial would apply during the second trial.

       Before the second trial, the court prohibited the parties from (1) referring “to consequences

of punishment from conviction,” (2) “eliciting hearsay from officers and reports or information

received from third parties,” and (3) eliciting testimony from witnesses “about the reputation,

credibility, or character of [Morrill] or another witness without a prior offer of proof.” CP at 239,

244. The trial court denied Morrill’s motion in limine to prohibit the State “from introducing

evidence concerning any alleged prior uncharged crimes, wrongs, or acts.” CP at 241.

       The trial court dismissed count III after the State rested its case and before the judge

instructed the jury. The jury found Morrill guilty of first degree child molestation of D.F. (count

II) with an ongoing pattern of sexual abuse aggravator. The jury was unable to reach a verdict

regarding count I, and the trial court dismissed it with prejudice. At sentencing, the superior court

found that Morrill was indigent, but imposed a $200 criminal filing fee. Morrill appeals his

conviction of first degree child molestation of D.F.

                                      II. BACKGROUND FACTS

       At the time of the offenses, Morrill was 60 years old, D.F. was 6 years old, and A.F. was

10 years old. Morrill lived on the same property as D.F. and A.F. Morrill babysat D.F. and A.F.

when their mother, Sabrina Wilson, and Morrill’s girlfriend Radcliffe left the property.

                                         A. SECOND TRIAL

1.     THE STATE’S CASE

       At the second trial, the jury heard the following relevant testimony. Detective Stevenson

interviewed six year-old D.F. The prosecutor asked Detective Stevenson to describe his training


                                                  3
No. 50070-1-II


in interviewing child witnesses. In response, Detective Stevenson testified, in part, that he elicits

a promise from the child that he is interviewing and studies “show that if a child promises to tell

the truth that they will tell the truth.” 5 RP at 953. Morrill did not object to that testimony.

       Detective Stevenson testified that D.F. said Morrill used a vibrator on himself in front of

D.F. When D.F. “turned his head away[, Morrill] grabbed his face and turned it back” while

Morrill used the vibrator on himself. 5 RP at 961. D.F. described Morrill’s penis as “really tiny,

and then it got bigger, and then it got huge,” before “it shot sperm.” 5 RP at 959. D.F. drew a

picture of “[Morrill’s] penis shooting sperm” during the interview. 5 RP at 958. D.F. told

Detective Stevenson that “he would sleep in the tiny cabin” and Morrill would climb up to the tiny

little loft in the cabin with D.F while naked. Morrill pulled D.F.’s pants down, “performed oral

sex on” D.F., and “shot sperm on [D.F.]’s neck when he was doing this . . . on multiple occasions.”

5 RP at 962. D.F. said that he asked Morrill if he had urinated, Morrill responded no, and D.F.

asked Morrill, “Then why . . . is your penis all wet?” to which Morrill responded, “That’s sperm.”

5 RP at 980.

       The prosecutor asked Detective Stevenson if he believe D.F. “was motivated to fabricate

. . . what he told” Detective Stevenson during the interview. 5 RP at 965. Morrill objected to the

question as calling for vouching, and the trial court sustained the objection.

       At trial, D.F. testified that Morrill slept naked in the cabin loft with him and touched and

put his mouth on D.F.’s “private part” after taking D.F.’s clothes off. 5 RP at 995. D.F. saw sperm

shoot out of Morrill’s penis and testified about the drawing he made of Morrill’s penis shooting

out sperm. The prosecutor asked D.F. if he told Detective Stevenson the truth during the interview,

and he said he did. Morrill did not object to that question.


                                                  4
No. 50070-1-II


       Wilson, D.F.’s mother, testified that after questioning Morrill, it “[came] to light” that

Morrill molested D.F. 5 RP at 935. Radcliffe, Morrill’s girlfriend at the time of the allegations,

testified that Morrill sometimes slept in the cabin loft with D.F. while she slept downstairs in the

cabin. Morrill “generally slept naked,” but to Radcliffe’s knowledge, Morrill had clothes on when

he slept with D.F. 4 RP at 871, 880. Detective Stevenson testified that D.F. described the vibrator

that Morrill used to masturbate and drew a picture of it.

2.     MORRILL’S CASE

       The defense called Morrill as a witness. Morrill testified that D.F. lied about Morrill

putting D.F.’s penis in his mouth.       Morrill denied pulling D.F.’s pants down for sexual

gratification, but said he had changed D.F.’s clothes before. Morrill said he slept in the same bed

with D.F. in the loft, but said he was clothed when he slept with D.F. He described one occasion

on which D.F. saw him naked, saying that he woke up naked with an erection and got up to urinate.

He said that Radcliffe had brought D.F. into the cabin before school while he was sleeping and

that he was “disoriented” because he had just woken up when that happened. 5 RP at 1072.

       The prosecutor asked Morrill, (1) “Who told you to look at the jury when you testified”

about D.F. lying—“Did defense counsel tell you to do that?” (5 RP at 1091); (2) “Why is it that

you would want to speak directly to the jury?” (5 RP at 1091); (3) “You haven’t reviewed the

discovery in this case with your attorney?” (5 RP at 1107); (4) if it was true that Radcliffe cut

Morrill off from sex around the time of the allegations?; (5) if Morrill was discharged from

working as a school teacher?; and (6) if Morrill “would not be able to enjoy” “the finer things in

life,” including “[c]lassical music,” “art,” “[l]iterature,” and “[b]eautiful sunny days” if he was




                                                 5
No. 50070-1-II


convicted. 5 RP at 1096. Morrill objected to each of these questions, and the trial court sustained

the objections before Morrill responded.

       The prosecutor also asked Morrill if he thought “the State has an obligation to bring these

kind of . . . charges when little children . . . make [the] kind of allegations” Morrill was facing. 5

RP at 1096-97. Morrill answered, “Absolutely” before the trial court sustained an objection to the

question. 5 RP at 1097. Additionally, the prosecutor asked Morrill, “How do we know that you’re

not lying?” and Morrill did not object. 5 RP at 1096.

3.     JURY INSTRUCTIONS

       The trial court instructed the jury “that the lawyers’ statements are not evidence” and that

the jurors “must disregard any remark, statement, or argument that is not supported by the evidence

or the law in my instructions.” CP at 116, 255. The jury found Morrill guilty of first degree child

molestation of D.F. (count II) with an ongoing pattern of sexual abuse aggravator. This appeal

followed.1

                                            ANALYSIS

       Morrill argues that the prosecutor’s conduct during the second trial was improper and

prejudicial. Morrill’s argument fails.

                      I. LEGAL PRINCIPLES – PROSECUTORIAL MISCONDUCT

       Prosecutorial misconduct may deprive a defendant of his constitutional right to a fair trial.

State v. Monday, 171 Wn.2d 667, 675-76, 257 P.3d 551 (2011).                 “A defendant alleging




1
  The notice of appeal states that Morrill seeks review of only the guilty verdict at trial of count
III, first degree child molestation. However, the trial court dismissed count III. He was convicted
of count II. As such, we review the conviction on count II despite the defect in the notice of appeal.

                                                  6
No. 50070-1-II


prosecutorial misconduct must prove (1) the conduct was improper and (2) he was prejudiced.”

State v. Scherf, ___ Wn.2d ___, 429 P.3d 776, 800 (2018). We examine the alleged improper

conduct and prejudice “in the context of the whole argument, the issues of the case, the evidence

addressed in argument, and the instructions given to the jury.” Scherf, 429 P.3d at 800.

       Once a defendant establishes improper conduct, prejudice “is analyzed under two different

standards.” Scherf, 429 P.3d at 800. If the defendant objected to the improper conduct at trial, the

defendant “‘must show that the prosecutor’s misconduct resulted in prejudice that had a substantial

likelihood of affecting the jury’s verdict.’” Scherf, 429 P.3d at 800 (quoting State v. Emery, 174

Wn.2d 741, 760, 278 P.3d 653 (2012)). However, if the defendant failed to object to the improper

conduct at trial, the defendant “must show the prosecutor’s misconduct was so flagrant and ill

intentioned that (1) ‘no curative instruction would have obviated any prejudicial effect on the jury’

and (2) the resulting prejudice ‘had a substantial likelihood of affecting the jury verdict.” Scherf,

429 P.3d at 800 (internal quotation marks omitted) (quoting Emery, 174 Wn.2d at 761).

                                            II. CONDUCT

                                A. VIOLATION OF CRR 3.5 RULING

       Morrill argues that the prosecutor improperly asked questions about a statement Morrill

made to Detective Stevenson that the trial court ruled was inadmissible after a CrR 3.5 hearing

before the first trial. We disagree.

       Here, before the first trial, the trial court ruled that Morrill’s statements to Detective

Stevenson, including that Radcliffe “had cut him off from sex,” were inadmissible. 1 RP at 297.

The trial court did not enter a pretrial ruling on whether the prosecutor could ask Radcliffe or

Morrill about facts related to their sexual relationship.


                                                  7
No. 50070-1-II


       The prosecutor did not ask Morrill about his statement to Detective Stevenson. Instead,

the prosecutor asked Morrill about the fact of whether it was true that Radcliffe cut Morrill off

from sex around the time of the allegations against him. Moreover, Morrill objected, and the trial

court sustained the objection before Morrill could respond. Because the prosecutor did not violate

the pretrial ruling Morrill relies on, we hold that Morrill failed to show that this question was

improper.

                                   B. PRIOR BAD ACTS RULING

       Morrill argues that the prosecutor’s questions about whether he was discharged from his

employment amount to misconduct because they violated a pretrial ruling on prior bad acts. We

reject Morrill’s argument.

       To support his argument, Morrill cites to a pretrial ruling from the first trial. Before the

first trial, the judge prohibited the State from referring to Morrill’s prior bad acts “without prior

approval of the court . . . outside the time frame in the information.” CP at 108. The trial court

orally stated that the scope of the prior bad acts ruling did not include testimony about Morrill

being “discharged from his employment” if such testimony was given after an offer of proof with

approval of the court. 1 RP at 111. Morrill’s reliance on the prior bad acts ruling from the first

trial appears to be error, because only the pretrial ruling from the second trial on prior bad acts is

relevant.2




2
  The State does not address the fact that Morrill’s argument mistakenly relies on a ruling from the
first trial.

                                                  8
No. 50070-1-II


       Before the second trial, the trial court denied Morrill’s motion to prohibit the State “from

introducing evidence concerning any alleged prior uncharged crimes, wrongs, or acts.” CP at 241.

That ruling, and not the ruling Morrill relies on, is determinative.

       Here, the prosecutor asked Morrill if he was discharged from employment as a school

teacher. However, there was no pretrial ruling in the second trial forbidding such a question.

Moreover, Morrill objected, and the trial court sustained the objection after an offer of proof

outside the presence of the jury. Because the prosecutor did not violate the pretrial prior bad acts

ruling in the second trial, we hold that Morrill failed to show that this question was improper.

                    C. QUESTIONS ELICITING IMPROPER OPINION TESTIMONY

       Morrill argues that the prosecutor asked improper questions that sought to elicit improper

opinion testimony or improperly bolstered witness testimony. Morrill relies on State v. Rafay, 168

Wn. App. 734, 805-06, 285 P.3d 83 (2012), State v. Kirkman, 159 Wn.2d 918, 928, 155 P.3d 125

(2007), and State v. Padilla, 69 Wn. App. 295, 299, 846 P.2d 564 (1993), in support.

       We agree with Morrill in part.

       A prosecutor’s questions are improper if “designed to compel a witness to express an

opinion as to whether other witnesses were lying” or were truthful. Padilla, 69 Wn. App. at 299.

Such questions are improper because they generally are designed to elicit a response from the

witness about the testifying witness’s opinion on the credibility of another witness. See State v.

Demery, 144 Wn.2d 753, 758-59, 30 P.3d 1278 (2001). Therefore, it is improper for a prosecutor

(1) to ask a witness whether another witness is lying or (2) to ask one witness whether another

witness “had a motive to testify untruthfully.” State v. Ramos, 164 Wn. App. 327, 335, 263 P.3d

1268 (2011).


                                                  9
No. 50070-1-II


1.     DETECTIVE STEVENSON’S TESTIMONY ON FORENSIC CHILD INTERVIEW STUDIES

       Morrill challenges Detective Stevenson’s testimony that studies show that if a child

promises to tell the truth, that they will tell the truth, as improper opinion testimony that D.F. was

truthful. We reject Morrill’s argument.

       First, while a prosecutor may commit misconduct by asking questions designed to elicit

improper opinion testimony, the focus in determining whether prosecutorial misconduct occurred

is the question asked and not the response given. See Padilla, 69 Wn. App. at 299. When

determining whether a witness’s response to a proper question consisted of improper opinion

testimony, the focus is the response alone. See Rafay, 168 Wn. App. at 805-06; Kirkman, 159

Wn.2d at 928. Because these issues are distinct and Morrill challenges the testimony rather than

the question, we hold that Detective Stevenson’s testimony is not prosecutorial misconduct.

       Moreover, the challenged portion of Detective Stevenson’s testimony did not express an

inappropriate opinion. “A witness’s expression of personal belief about the veracity of another

witness is inappropriate opinion testimony in criminal trials.” State v. Perez-Valdez, 172 Wn.2d

808, 817, 265 P.3d 853 (2011). However, a “detective’s testimony” regarding the protocol used

in interviewing a child victim, “including that the child promised to tell the truth,” “only provides

context for the interview . . . and does not improperly comment o[n] the truthfulness of the victim.”

Kirkman, 159 Wn.2d at 934.

       Here, the prosecutor asked Detective Stevenson to describe his training in interviewing

child witnesses. In response, Detective Stevenson testified, in part, that he will “elicit a promise”

from the child he interviews and that studies “show that if a child promises to tell the truth that

they will tell the truth.” 5 RP at 953. Morrill did not object to that testimony.


                                                 10
No. 50070-1-II


       Detective Stevenson testified about forensic child interviews, not about D.F.’s credibility,

in this challenged question. In Kirkman, our Supreme Court specifically rejected the argument

that a detective’s testimony on the forensic child interview protocol carried a “‘special aura of

reliability’” because detectives “often use a similar protocol in all child witness interviews,

whether they believe the child witness or not.” 159 Wn.2d at 931. While Morrill also argues that

Detective Stevenson’s testimony “went beyond providing information about the protocol” and

“vouched for the information” that Detective Stevenson was going to testify about, we hold that

the argument is meritless. Br. of Appellant at 30. Like in Kirkman, Detective Stevenson’s

comment on studies about children’s promises gives context for why Detective Stevenson asked

for such promises. See 159 Wn.2d at 934. We hold that Detective Stevenson’s testimony did not

amount to an improper opinion and therefore is not improper conduct.

2.     QUESTION TO DETECTIVE STEVENSON ON D.F.’S MOTIVE TO LIE

       Morrill challenges the prosecutor’s question to Detective Stevenson about whether the

detective had any reason to believe that D.F. was motivated to fabricate the accusations against

Morrill as improper opinion testimony. We agree with Morrill.

       It is improper for a prosecutor to ask one witness whether another witness “had a motive

to testify untruthfully.” Ramos, 164 Wn. App. at 335. Here, the prosecutor asked Detective

Stevenson if he had “any reason to believe [D.F.] was motivated to fabricate . . . what he told”

Detective Stevenson during the interview. 5 RP at 965. Morrill objected to the question, and the

trial court sustained the objection. We hold that the prosecutor’s question to Detective Stevenson

was improper. Whether Morrill suffered prejudice is analyzed below.




                                               11
No. 50070-1-II


3.        QUESTIONS TO D.F. ABOUT HIS TRUTHFULNESS

          Morrill argues that the prosecutor improperly bolstered Detective Stevenson’s testimony

by asking D.F. questions about whether D.F. was truthful when Detective Stevenson interviewed

him.3 We disagree.

          A prosecutor’s questions are improper if “designed to compel a witness to express an

opinion as to whether other witnesses were lying” or were truthful. Padilla, 69 Wn. App. at 299

(emphasis added). Here, the prosecutor asked D.F. whether he was truthful, and it was not

designed to elicit a response from D.F. on the credibility of another witness. Based on Padilla,

the question was not improper.

                                   D. ATTORNEY-CLIENT PRIVILEGE

          Morrill argues that the prosecutor’s questions to Morrill about the content of privileged

communications amount to misconduct. The State acknowledges that the prosecutor’s questions

were improper but argues that the questions did not prejudice Morrill.

          Here, the prosecutor asked Morrill the following challenged questions:

                 Q       Who told you to look at the jury when you testified. Did defense
          counsel tell you to do that?
                 ....
                 Q       Why is it that you would want to speak directly to the jury?
                 ....
                 Q       You haven’t reviewed the discovery in this case with your attorney?

5 RP at 1091, 1107. Morrill objected to each of these questions, and the trial court sustained the

objections before Morrill responded.




3
    Morrill did not object to those questions.
                                                 12
No. 50070-1-II


       We agree with the State. Even assuming without deciding that these questions are

improper, there is insufficient prejudice to warrant reversal as discussed below.

                                  E. ARGUMENTATIVE QUESTIONS

       Morrill argues that the prosecutor asked “argumentative questions” that he contends did

not aid the jury in the fact-finding process or in determining his guilt or innocence. Br. of

Appellant at 27 (quoting RP at 1096-97). For support he cites to Crippen v. Pulliam, 61 Wn.2d

725, 380 P.2d 475 (1963), and Rae v. Nelson, 152 Wash. 10, 277 P. 75 (1929).

       A question is argumentative if it presents the State’s “theory of the case.” State v. Ruiz,

176 Wn. App. 623, 643-44, 309 P.3d 700 (2013). Further, “‘[c]ounsel is not permitted to impart

to the jury his or her own personal knowledge about an issue in the case under the guise of either

direct or cross examination when such information is not otherwise admitted as evidence.’” Ruiz,

176 Wn. App. at 641 (quoting State v. Denton, 58 Wn. App. 251, 257, 792 P.2d 537 (1990)).

Argumentative questions are subject to restriction under ER 403. Ruiz, 176 Wn. App. at 644.

       While cross-examining Morrill, the prosecutor asked Morrill if he would “be able to enjoy”

“the finer things in life,” including “[c]lassical music,” “art,” “[l]iterature,” and “[b]eautiful sunny

days” if he was convicted. 5 RP at 1096. Morrill objected, and the trial court sustained the

objection before Morrill could respond.

       The question did not present the State’s theory of the case that D.F. truthfully testified that

Morrill sexually assaulted him and that D.F.’s statements to Stevenson were consistent with his

testimony. The question also did not impart the prosecutor’s own personal knowledge to the jury.

See Ruiz, 176 Wn. App. at 641. Instead, the question probed a possible motive for Morrill to lie,




                                                  13
No. 50070-1-II


i.e., to avoid prison so he could continue to enjoy the “finer things in life.” 5 RP at 1096. We hold

that Morrill has failed to show that this question was improper.

       Morrill challenges two more questions as “argumentative.” Br. of Appellant at 28. The

prosecutor tasked Morrill with how “do we know that you’re not lying.” 5 RP at 1096. Morrill

did not object to that question.

       The prosecutor also asked Morrill if he thought “the State has an obligation to bring these

kind of . . . charges when little children . . . make [the] kind of allegations” Morrill was facing. 5

RP at 1096-97. Morrill objected, and the trial court sustained the objection. However, before the

objection, Morrill answered, “Absolutely.” 5 RP at 1097.

       These questions did not present the State’s theory of the case, that D.F. truthfully testified

that Morrill sexually assaulted him and that D.F.’s statements to Stevenson were consistent with

his testimony. These questions also did not impart the prosecutor’s own personal knowledge to

the jury. See Ruiz, 176 Wn. App. at 641. Morrill fails to show that these questions were improper.

Thus his arguments fail.

                       III. PREJUDICE AND CUMULATIVE EFFECT OF ERRORS

                                           A. PREJUDICE

       Morrill argues that he was prejudiced when the prosecutor improperly asked Morrill

whether Morrill’s attorney told Morrill “‘to look at the jury when [he] testified.’” Br. of Appellant

at 17. He contends that the question was prejudicial because it left the jury with an impression

that he and his attorney were trying to manipulate the jury into finding him credible. Morrill also

argues the remarks were intended to belittle Morrill and his counsel and to insinuate that neither

were to be trusted by the jury.


                                                 14
No. 50070-1-II


        Further Morrill argues that he was prejudiced when the prosecutor improperly asked

Detective Stevenson if he had “reason to believe” D.F. “was motivated to fabricate” what he told

Detective Stevenson during the interview. Br. of Appellant at 29. Morrill contends that the

question was prejudicial because Detective Stevenson’s “testimony often carries ‘a special aura of

reliability.’” Br. of Appellant at 30 (quoting Kirkman, 159 Wn.2d at 928).

        Once a defendant establishes improper conduct, we analyze whether the improper conduct

prejudiced the defendant. See Scherf, 429 P.3d at 800. If the defendant objected to the improper

conduct at trial, the defendant “‘must show that the prosecutor’s misconduct resulted in prejudice

that had a substantial likelihood of affecting the jury’s verdict.’” Scherf, 429 P.3d at 800 (quoting

Emery, 174 Wn.2d at 760).

        Here, the following questions to Detective Stevenson and Morrill were improper: (1)

whether Detective Stevenson had “any reason to believe [D.F.] was motivated to fabricate . . . what

he told” Detective Stevenson during the interview and (2) whether Morrill’s attorney told him “to

look at the jury when [he] testified.” 5 RP at 965, 1091. Morrill objected to each of the improper

questions, and the trial court sustained the objections. In addition, the prosecutor’s questions

regarding who told Morrill to look at the jury and to testify directly to the jury, and whether he had

reviewed discovery with his attorney are assumed improper. However, Morrill fails to show that

these errors “‘resulted in prejudice that had a substantial likelihood of affecting the jury’s verdict.’”

Scherf, 429 P.3d at 800 (quoting Emery, 174 Wn.2d at 760).

        “The most effective types of corroboration” in child sexual abuse cases, “of course, are

eyewitness testimony, a confession or admissions by the accused, and medical or scientific

testimony documenting abuse.” State v. Swan, 114 Wn.2d 613, 622-23, 790 P.2d 610 (1990).


                                                   15
No. 50070-1-II


However, physical evidence is rarely available in child sexual abuse cases because sex offenses

against children generally “involve nonviolent conduct,” State v. Thorgerson, 172 Wn.2d 438, 442

n.1, 258 P.3d 43 (2011), “such as petting, exhibitionism, fondling and oral copulation. Swan, 114

Wn.2d at 623; State v. Young, 160 Wn.2d 799, 817 n.13, 161 P.3d 967 (2007).

       As such, “a child victim’s precocious knowledge of sexual activity” is “indirect evidence

of abuse” that corroborates the child victim’s statements accusing a defendant of child sexual

abuse. Swan, 114 Wn.2d at 623. For example, a “child’s description of ejaculation” or “fellatio”

may be sufficient to corroborate their account of sexual abuse. Swan, 114 Wn.2d at 633.

Additionally, where a child consistently describes alleged sexual abuse over time, “the possibility

that [the child is] speaking from faulty recollection [is] remote.” Swan, 114 Wn.2d at 651.

       Here, there was direct and indirect evidence that Morrill molested D.F. The State had to

prove that Morrill had “sexual contact” with D.F. RCW 9A.44.083. The jury instructions defined

“[s]exual contact” as “any touching of the sexual or other intimate parts of a person done for the

purpose of gratifying sexual desires of either party.” CP at 265. D.F. testified that Morrill slept

naked in the cabin loft with him and touched and put his mouth on D.F.’s “private part” after taking

D.F.’s clothes off. 5 RP at 993. D.F. said he saw sperm shoot out of Morrill’s penis and testified

about the drawing that he made of Morrill’s penis shooting out sperm during the forensic child

interview with Detective Stevenson. We hold that D.F.’s testimony is direct evidence that Morrill

molested him. We also hold that D.F.’s precocious sexual knowledge, specifically his knowledge

of ejaculation and sperm as a six-year-old, is indirect evidence corroborating his accusations

against Morrill. Swan, 114 Wn.2d at 623.




                                                16
No. 50070-1-II


       There was also testimony from other witnesses corroborating D.F.’s account of Morrill’s

conduct. Detective Stevenson testified that D.F. made the following consistent statements about

the abuse during the forensic child interview. D.F. told Detective Stevenson that “he would sleep

in the tiny cabin” and that Morrill had climbed up to the tiny little loft in the cabin with D.F. while

naked. 5 RP at 961. D.F. told Detective Stevenson that Morrill “pulled [D.F.]’s pants down,”

“performed oral sex” on D.F., and “shot sperm” on D.F.’s “neck when he was doing this . . . on

multiple occasions.” 5 RP at 962.

       D.F. described Morrill’s penis as “really tiny, and then it got bigger, and then it got huge”

before “it shot sperm.” 5 RP at 959. D.F. said that he asked Morrill if he had urinated, Morrill

responded no, and D.F. asked Morrill, “‘Then why . . . is your penis all wet?’” to which Morrill

responded, “‘That’s sperm.’” 5 RP at 980. D.F. said Morrill used a vibrator on himself in front

of D.F. When D.F. “turned his head away[, Morrill] grabbed his face and turned it back” while

Morrill used the vibrator on himself. 5 RP at 961. The fact that D.F.’s statements to Detective

Stevenson were consistent with his testimony at trial reduce the possibility that D.F.’s recollection

of the alleged abuse was false. Swan, 114 Wn.2d at 651.

       Additionally, Wilson testified that after questioning Morrill, it “[came] to light” that

Morrill molested D.F. 5 RP at 935. Radcliffe testified that Morrill sometimes slept in the cabin

loft with D.F. while she slept downstairs in the cabin and that Morrill “generally slept naked,” but

to Radcliffe’s knowledge, Morrill had clothes on when he slept with D.F. 4 RP at 871. This

testimony corroborates D.F.’s testimony that Morrill slept with D.F. and shows that Morrill had

an opportunity to commit the alleged offense. Detective Stevenson testified that D.F. described




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No. 50070-1-II


the vibrator that Morrill used to masturbate and drew a picture of it. This testimony partially

corroborates D.F.’s account of Morrill using the vibrator to masturbate in D.F.’s presence.

        In response to this evidence, Morrill testified that D.F. lied about Morrill putting D.F.’s

penis in his mouth. Morrill also denied pulling D.F.’s pants down for sexual gratification, but said

that he had changed D.F.’s clothes before. Morrill further testified that he slept in the same bed

with D.F. in the loft, but said he was clothed when he slept with D.F. He described one occasion

on which D.F. saw him naked, saying that he woke up naked with an erection and got up to urinate.

Aside from accusing D.F. of lying, Morrill’s testimony corroborates D.F.’s testimony that Morrill

slept with D.F. and that D.F. saw Morrill naked with an erection on at least one occasion.

        Given the direct and indirect evidence of child molestation there is not “‘a substantial

likelihood’” that the minimal improper conduct affected the verdict. Scherf, 429 P.3d at 800

(quoting Emery, 174 Wn.2d at 760). Therefore, we hold that the improper questions did not

prejudice Morrill.

                                       B. CUMULATIVE ERROR

        Morrill argues that the cumulative effect of the alleged errors unfairly prejudiced him and

violated his right to a fair trial. The State responds that to the extent any errors occurred, any error

was harmless when viewed in the context of the entire record. We reject Morrill’s argument.

        Under the cumulative error doctrine, we may reverse a defendant’s conviction when the

combined effect of errors during trial effectively denied the defendant his right to a fair trial, even

if each error standing alone would be harmless. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d

646 (2006). “‘[T]he cumulative effect of repetitive prejudicial prosecutorial misconduct may be

so flagrant that no instruction or series of instructions can erase their combined prejudicial effect.’”


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State v. Lindsay, 180 Wn.2d 423, 443, 326 P.3d 125 (2014) (alteration in original) (internal

quotation marks omitted) (quoting In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 707, 286

P.3d 673 (2012)). But cumulative error does not apply where the errors are few and have little or

no effect on the outcome of the trial. Weber, 159 Wn.2d at 279. Additionally, “the doctrine does

not apply where the defendant fails to establish how claimed instances of prosecutorial misconduct

affected the outcome of the trial or how combined claimed instances affected the outcome of the

trial.” Thorgerson, 172 Wn.2d at 454.

       Here, there were only few instances of improper conduct, and the trial court sustained

objections to the two improper questions. Because there were few errors and Morrill failed to

show that the errors affected the outcome of the trial, we hold that Morrill’s cumulative error

argument fails.

       We hold that some of the prosecutor’s conduct was improper, but that given the strength

of the State’s evidence and in light of the jury instructions, the prosecutor’s limited instances of

improper conduct did not prejudice Morrill’s right to a fair trial.

                               IV. LEGAL FINANCIAL OBLIGATIONS

       Morrill challenges the superior court’s imposition of a $200 criminal filing fee that was a

mandatory cost at the time of sentencing. The State concedes that the filing fee should be stricken.

       The legislature recently amended RCW 36.18.020(2)(h) to prohibit the superior courts

from imposing the $200 filing fee on indigent defendants. LAWS OF 2018, ch. 269, § 17. These

statutory amendments apply prospectively to cases pending on appeal. State v. Ramirez, 191

Wn.2d 732, 747, 426 P.3d 714 (2018). Here, the superior court found Morrill indigent. Thus,




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under Ramirez, we remand to the superior court to amend Morrill’s judgment and sentence by

striking the criminal filing fee.

        We affirm but remand to strike the filing fee.

        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.



                                                     JOHANSON, J.
 We concur:



 MAXA, C.J.




 LEE, J.




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