                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                          December 6, 2016




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                             No. 47963-0-II

                                Respondent,

         v.

    JOHN BENTON RAGLAND,                                       UNPUBLISHED OPINION

                                Appellant.

        WORSWICK, P.J. — John Benton Ragland appeals his convictions for one count of first

degree rape of a child, three counts of first degree child molestation, one count of first degree

incest, and one count of second degree incest. Ragland argues that (1) the trial court erred by (a)

failing to give unanimity instructions for three of the charges, (b) finding I.M.R.,1 a child victim,

was competent to testify at trial, and (c) ordering Ragland to pay legal financial obligations

(LFOs) to cover the cost of his extradition without conducting an individualized inquiry into his

ability to pay the LFOs; and (2) the prosecutor committed flagrant and ill-intentioned misconduct

by (a) asking Ragland on cross-examination whether I.M.R. and S.D.R. were lying, (b)

misstating the law regarding jury unanimity, (c) misstating the law and minimizing its burden of



1
  We use initials to identify minor victims. Gen. Order 2011–1 of Division II, In Re The Use Of
Initials Or Pseudonyms For Child Witnesses In Sex Crime Cases (Wash. Ct. App.),
http://www.courts.wa.gov/appellate_trial_courts/.
No. 47963-0-II


proof during closing argument, and (d) disparaging the role of defense counsel during rebuttal

argument.2

         We hold that the trial court erred by failing to give unanimity instructions for the first

degree rape of a child, first degree incest, and second degree incest charges. But we reject

Ragland’s remaining arguments. Accordingly, we affirm the three counts of first degree child

molestation, and we reverse Ragland’s first degree rape of a child, first degree incest, and second

degree incest convictions and remand for a new trial on those counts.

                                                FACTS

                                           I. BACKGROUND

         Ragland lived in Olympia with his wife Bonnie and their three children, including his

daughter I.M.R. and his son S.D.R., until December 2011.3 From April 2010 until he left the

home in December 2011, Ragland looked after his children while Bonnie worked the night shift.

I.M.R. and S.D.R. were approximately six and four years old, respectively.

         In May 2013, I.M.R. reported to Bonnie that Ragland repeatedly forced her to perform

oral sex on him and S.D.R. while Bonnie was at work. Bonnie took the children next door to her

sister’s house. There, S.D.R. also disclosed that Ragland told him to put his finger in Ragland’s

rectum. Bonnie called police.



2
 Ragland also argues that the trial court erred in miscalculating his offender score, that his
defense counsel was ineffective by failing to argue that his convictions were the same criminal
conduct, and asks this court to waive appellate costs. Because we are remanding for a new trial
on the first degree child rape, first degree incest, and second degree incest counts, we do not
consider Ragland’s additional arguments.
3
    We refer to Bonnie Ragland by her first name to avoid confusion, intending no disrespect.



                                                   2
No. 47963-0-II


         The State charged Ragland with first degree child rape of I.M.R. (count I),4 first degree

child molestation of I.M.R (count II), 5 first degree child molestation of S.D.R. (count III),6 first

degree child molestation of S.D.R. (count IV),7 first degree incest of I.M.R. (count V),8 and

second degree incest of S.D.R. (count VI). 9

         Prior to trial, Detective Chris Ivanovich conducted a forensic interview of I.M.R. and

S.D.R. During the interview, I.M.R. told Detective Ivanovich that Ragland made her perform

oral sex on him and S.D.R., and Ragland forced her to put her finger in his rectum. S.D.R.

reported that Ragland touched his penis multiple times and forced him to touch Ragland’s penis.

S.D.R. also disclosed that he witnessed I.M.R. touch Ragland’s penis with her hand. Later,

Ragland’s defense counsel interviewed I.M.R. and S.D.R. During that interview, I.M.R.

disclosed that Ragland vaginally raped her.

                                     II. COMPETENCY HEARING

         The trial court held a competency hearing for I.M.R. and S.D.R. At the hearing, Bonnie

testified that I.M.R. suffers from developmental delays because of brain hemorrhaging when she

was born.

         The State then questioned I.M.R. The following exchange took place:


4
    RCW 9A.44.073.
5
    RCW 9A.44.083.
6
    RCW 9A.44.083.
7
    RCW 9A.44.083.
8
    RCW 9A.64.020(1).
9
    RCW 9A.64.020(2).


                                                  3
No. 47963-0-II


        [STATE]:    Okay. [I.M.R.], what’s the name of the chair you’re sitting in?
        [I.M.R.]:   The truth chair.
        [STATE]:    Why do we call it the truth chair?
        [I.M.R.]:   Because we need to tell the truth.
        [STATE]:    And if I told you that my shirt is red, would that be the truth or a lie?
        [I.M.R.]:   A lie.
        ....
        [STATE]:    Is it good or bad to tell the truth?
        [I.M.R.]    Good.
        [STATE]:    Why?
        [I.M.R.]:   Because I do not want my dad to get out of jail.
        [STATE]:    Okay. Is it good or bad to tell a lie?
        [I.M.R.]:   Bad.
        ....
        [STATE]:    What happens if you tell a lie?
        [I.M.R.]:   We can get—go somewhere called—for kid jail it’s called juvie.

1 Verbatim Report of Proceedings (VRP) (June 15, 2015) at 9-10. I.M.R. also testified that she

had secret cameras hidden around the courtroom and testified about an incident at a grocery store

that Bonnie later refuted.

        Ragland objected to I.M.R.’s competency to testify at trial, arguing that she did not

understand her obligation to tell the truth. Ragland explained that I.M.R. “exhibited some signs

of the ability to, like most children[,] have fantastical stories or other things like that that can

definitely blur the line between what’s true and not.” 2 VRP (June 18, 2015) at 55.

        The trial court disagreed with Ragland, finding that I.M.R. “explained the truth chair,

what happens when you don’t tell the truth and, as I indicated, [she] accurately answered

questions regarding objective facts that were true or not true.” 2 VRP (June 22, 2015) at 99.

While the court acknowledged that I.M.R.’s testimony was not always completely accurate, the

court concluded that “those matters go to the weight of her testimony not to her competency.” 2

VRP (June 22, 2015) at 99. The trial court ultimately found I.M.R. competent to testify at trial.




                                                   4
No. 47963-0-II


                                               III. TRIAL

         At trial, S.D.R. testified that he saw I.M.R. perform oral sex on Ragland multiple times.

S.D.R. also stated that Ragland performed oral sex on him but that he did not touch Ragland’s

penis. On cross-examination, S.D.R. testified that he did touch Ragland’s penis but not with his

hand or any other body part.

         I.M.R. testified about instances of vaginal and anal penetration, but she testified that it

only occurred once in her home. I.M.R. did not recall where in her home or when other

instances occurred. I.M.R. also testified that she did not perform oral sex on Ragland.

Statements I.M.R. and S.D.R. made to Bonnie and Detective Ivanovich were also admitted at

trial.

         Ragland testified in his defense and generally denied his children’s allegations. On cross-

examination, the State asked Ragland, “So you heard what [I.M.R.] said and you heard what

[S.D.R.] said. Your testimony is that they’re lying?” VRP (July 13, 2015) at 743. Ragland

objected to the State’s question only on the ground that the question opened the door to ER

404(b) evidence that the trial court previously ruled was not admissible.

         The trial court overruled Ragland’s objection, and the State repeated its question.

Ragland replied: “No, I’m not saying that they’re liars like you asked me. I’m saying that I

believe that they’re being told to lie. I would never call my kids liars, they’d have to know what

it is first.” VRP (July 13, 2015) at 743.

         The parties presented closing arguments. During its closing argument, the State first

addressed the court’s reasonable doubt instruction. The State described “reasonable doubt” in

the following manner: “If . . . you have an abiding belief in the truth of the charge, then you are



                                                   5
No. 47963-0-II


satisfied beyond a reasonable doubt. Ladies and gentlemen, if you walk out of here and you say,

‘I believe those kids,’ that’s an abiding belief. That’s beyond a reasonable doubt.” VRP (July

13, 2015) at 776. The State then addressed each individual charge Ragland faced:

               We have to focus specifically on sexual intercourse. . . .
               ....
               Now, you’re required to define or determine unanimously which one of
       those you agree with, which one of those happened. You only have to pick one. I
       submit to you, ladies and gentlemen, you have three to choose from.
               Did sexual intercourse between the defendant and I.M.R. occur? Yes. Has
       the State proven beyond a reasonable doubt Count I, rape of a child in the first
       degree? Yes. . . .
               Now, the Court instructed you about a unanimity instruction, and basically
       what that means is that any count of child molestation in the first degree, there are
       three of them, you have to decide unanimously on one particular act, that you
       believe one particular act occurred. Well, for Count II that’s not going to really
       apply because Count II deals with [I.M.R.]. . . .
               ....
               . . . [S.D.R.] provided you with the information you need to return a verdict
       of guilty on both Counts III and Count IV. Specifically, if you all believe that the
       defendant touched [S.D.R.’s] penis on one occasion in that date range, that’s
       sufficient. Or if you were to believe that the defendant made [S.D.R.] touch the
       defendant’s penis within that date range, that’s sufficient.
               ....
               Let’s talk about Count V. . . . Again, three options with regard to sexual
       intercourse. . . .
               Count VI talks about incest in the second degree, and that is it relates to
       [S.D.R.], talks about sexual contact, not sexual intercourse.

VRP (July 13, 2015) at 791-94.

       On rebuttal, the State argued that if the jury

       believe[d] that these children suffered these acts at the hands of their father . . . if
       you have an abiding belief, if you walk out of this room and say yes, in fact, I think
       these children did suffer these acts by their father, you have enough evidence
       beyond a reasonable doubt.

VRP (July 13, 2015) at 817. The State continued, “[Defense counsel] asks you to look at the

plausibility of other scenarios. Look over here and look over here and look over here. Don’t



                                                  6
No. 47963-0-II


look at actually what the kids said.” VRP (July 13, 2015) at 817. Ragland did not object to any

of the State’s statements during closing or rebuttal argument.

       The trial court gave a Petrich10 instruction that applied only to the child molestation

charges, stating:

       The State alleges that the defendant committed acts of Child Molestation in the
       First Degree on multiple occasions. To convict the defendant on any count of Child
       Molestation in the First Degree, one particular act of Child Molestation in the First
       Degree must be proved beyond a reasonable doubt, and you must unanimously
       agree as to which act has been proved. You need not unanimously agree that the
       defendant committed all the acts of Child Molestation in the First Degree.

Clerk’s Papers (CP) at 275. The trial court did not give Petrich instructions for the first degree

rape of a child, first degree incest, or second degree incest charges, and the State did not elect

which act it was relying on to support a conviction for each charge.

                                          IV. SENTENCING

       The jury found Ragland guilty of all charges. At sentencing, the State’s request for

discretionary LFOs included $2,158.30 for extradition costs and $1,000.00 for the cost of an

expert witness. Ragland objected, arguing that he was indigent and would be unable to pay the

fees while incarcerated. The court imposed mandatory LFOs and the extradition costs. Ragland

appeals.

                                            ANALYSIS

                                    I. UNANIMITY INSTRUCTION

       Ragland argues, for the first time on appeal, that the trial court erred by failing to give a

unanimity instruction for Ragland’s first degree rape of a child, first degree incest, and second


10
  State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984), abrogated in part on other
grounds by State v. Kitchen, 110 Wn.2d 403, 405-06, 756 P.2d 105 (1988).


                                                  7
No. 47963-0-II


degree incest charges. The State argues that Ragland waived this issue because it is not a

manifest constitutional error. We disagree with the State and hold that the trial court erred by

failing to give a unanimity instruction for these three charges and that the error is not harmless

beyond a reasonable doubt.

       To convict a defendant of a criminal charge, the jury must be unanimous that the

defendant committed the criminal act charged. State v. Coleman, 159 Wn.2d 509, 511, 150 P.3d

1126 (2007). When the State presents evidence of multiple acts that relate to one charge, the

State must either elect which act is relied on for a conviction or the trial court must instruct the

jury to unanimously agree on one specific criminal act. 159 Wn.2d at 511. If there is neither an

election nor a unanimity instruction in a multiple acts case, omission of the unanimity instruction

violates the defendant’s constitutional right to a unanimous jury verdict and is presumed to result

in prejudice. 159 Wn.2d at 512. The error arises from the possibility that some jurors relied on

one act and others relied on another. 159 Wn.2d at 512.

       Generally, a defendant may raise the issue of jury unanimity for the first time on appeal.

State v. Kitchen, 46 Wn. App. 232, 234, 730 P.2d 103 (1986), aff’d on other grounds, 110 Wn.2d

403, 756 P.2d 105 (1988). Reversal is required unless we determine that the error is harmless

beyond a reasonable doubt. Coleman, 159 Wn.2d at 512. The error is harmless beyond a

reasonable doubt if no rational juror could have entertained a reasonable doubt about any of the

alleged acts. 159 Wn.2d at 512.

       Here, Ragland was charged with first degree rape of a child and first degree incest,

relating to acts committed against I.M.R., as well as second degree incest for acts committed

against S.D.R. At trial, I.M.R. testified about various instances of vaginal and anal penetration.



                                                  8
No. 47963-0-II


I.M.R. did not recall where in her home or when other instances occurred. I.M.R. also testified

that she did not perform oral sex on Ragland.

       S.D.R. testified that he saw I.M.R. perform oral sex on Ragland multiple times. S.D.R.

also stated that Ragland performed oral sex on him but that he did not touch Ragland’s penis.

On cross-examination, S.D.R. testified that he did touch Ragland’s penis but not with his hand or

any other body part. In addition, statements I.M.R. and S.D.R. made to Bonnie and Detective

Ivanovich were admitted at trial. These statements included contradictory accounts of Ragland’s

sexual contact.

       Ragland testified in his defense and denied the allegations. The State did not elect which

act it was relying on for a conviction on each charge, and the trial court did not give an

instruction to assure jury unanimity as to any one of the several criminal acts presented.

       While I.M.R. and S.D.R. described separate acts that were independently capable of

constituting the charged offenses, they were unable to describe the acts with specificity. I.M.R.

and S.D.R. were uncertain about the type of sexual contact that took place, where it took place,

and how frequently it occurred. Further, I.M.R. and S.D.R. provided contradictory testimony

about the sexual contact.

       Because there was conflicting testimony and a lack of specificity as to each act, a rational

juror could have entertained reasonable doubt as to whether one or more of the acts actually

occurred. As a result, the jurors could have rested their finding of guilt on different acts.

Therefore, the trial court erred in failing to give unanimity instructions for the first degree rape of

a child, first degree incest, and second degree incest charges, and the error is not harmless




                                                  9
No. 47963-0-II


beyond a reasonable doubt. Accordingly, we reverse Ragland’s first degree rape of a child, first

degree incest, and second degree incest charges and remand for a new trial on those charges.

                                    II. WITNESS COMPETENCY

       Ragland argues the trial court abused its discretion by determining that I.M.R. was

competent to testify at trial because she was unable to differentiate between the truth and a lie.

We disagree.

       The determination of witness competency is within the sound discretion of the trial court

because the trial court is in the best position to observe a potential witness. State v. Kennealy,

151 Wn. App. 861, 878, 214 P.3d 200 (2009). As a result, “[t]here is probably no area of law

where it is more necessary to place great reliance on the trial court’s judgment than in assessing

the competency of a child witness.” State v. Borland, 57 Wn. App. 7, 11, 786 P.2d 810 (1990).

The competency of a child is not easily reviewable in a written record. State v. Woods, 154

Wn.2d 613, 617, 114 P.3d 1174 (2005) (plurality opinion), as amended (July 27, 2005). We

must rely on the trial court judge who sees the witness, notices her manner, and considers her

capacity and intelligence. State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967).

Accordingly, we review a trial court’s competency determination for a manifest abuse of

discretion. Woods, 154 Wn.2d at 617.

       A witness is presumed competent to testify. RCW 5.60.020. A child’s age is not

determinative of her competency to testify. Woods, 154 Wn.2d at 617. Instead, a child is

competent to testify if she: (1) understands the obligation to speak the truth on the witness stand;

(2) has the mental capacity, at the time of the occurrence concerning which she is to testify, to

receive an accurate impression of it; (3) has a memory sufficient to retain an independent



                                                 10
No. 47963-0-II


recollection of the occurrence; (4) has the capacity to express in words her memory of the

occurrence; and (5) has the capacity to understand simple questions about the occurrence. 154

Wn.2d at 618 (citing Allen, 70 Wn.2d at 692). A “long-standing, often-observed inability to

distinguish what was true from what was not” may demonstrate that a witness lacks the ability to

distinguish between the truth and a lie. State v. Karpenski, 94 Wn. App. 80, 106, 971 P.2d 553

(1999), overruled on other grounds by State v. C.J., 148 Wn.2d 672, 63 P.3d 765 (2003).

Inconsistencies in a child’s testimony go to the weight and credibility of her testimony, not her

competency. Kennealy, 151 Wn. App. at 878.

       During the competency hearing, I.M.R. stated that she was sitting in the “truth chair” and

that it was important for her to tell the truth. 1 VRP (June 15, 2015) at 9. The prosecutor asked

her a series of questions about the difference between a truth and a lie, which she correctly

answered. I.M.R. testified that it was bad to tell a lie because she could “go somewhere called

. . . juvie,” and she promised to tell the truth. 1 VRP June 15, 2015 at 10, 13. The trial court

addressed each of the five Allen factors and found I.M.R. competent to testify. With regard to

the first factor, the understanding of the obligation to speak the truth, the court found:

       [I.M.R.] does have some developmental delays. . . . [S]he did describe, however,
       the truth chair and the difference between truth and lies and the consequences one
       can receive for lying.
       ....
                Additionally, regarding [I.M.R.], given the nature of her delays . . . if
       anything, that underscored her understanding and need to speak to the truth while
       she was on the witness stand. There definitely were some items that [I.M.R.]
       testified to that were not completely accurate . . . . I conclude that those matters go
       to the weight of her testimony not to her competency.

2 VRP (June 22, 2015) at 97-99.




                                                 11
No. 47963-0-II


        The record reflects that I.M.R. understood the importance of telling the truth. I.M.R.

testified that she knew the difference between a truth and a lie and was able to accurately

respond to examples of each. As a result, I.M.R.’s testimony supports the trial judge’s

conclusion that she understood the obligation to speak the truth and that she was competent to

testify. While the trial court recognized that I.M.R.’s testimony was sometimes inaccurate or

contradictory, her inconsistencies did not demonstrate a long-standing or often-observed inability

to distinguish the truth from a lie. Instead, inconsistencies in I.M.R.’s testimony go to the weight

and credibility of her testimony. Therefore, the trial court did not manifestly abuse its discretion

in allowing I.M.R. to testify at trial.

                                 III. LEGAL FINANCIAL OBLIGATIONS

        Ragland next argues that the sentencing court erred in imposing discretionary legal

financial obligations (LFOs) on him to cover the cost of his extradition without first conducting

an individualized inquiry into his ability to pay the LFOs. While it appears that the trial court

adequately considered Ragland’s ability to pay, we do not analyze this issue because we

recognize that Ragland will be resentenced.

                                  IV. PROSECUTORIAL MISCONDUCT

        Ragland argues the prosecutor made several improper remarks during questioning and

closing argument. These arguments fail.

        To establish prosecutorial misconduct, a defendant bears the burden of proving the

prosecutor’s conduct was both improper and prejudicial. State v. Thorgerson, 172 Wn.2d 438,

442, 258 P.3d 43 (2011). If a defendant meets this burden, we may reverse the defendant’s

conviction. State v. Emery, 174 Wn.2d 741, 759-61, 278 P.3d 653 (2012).



                                                 12
No. 47963-0-II


          If a defendant establishes the prosecutor’s conduct was improper, the court must

determine whether the defendant was prejudiced. 174 Wn.2d at 760. Where, as here, a

defendant fails to object to alleged prosecutorial misconduct, he is deemed to have waived any

error unless he shows the misconduct “was so flagrant and ill intentioned that an instruction

could not have cured the resulting prejudice.” 174 Wn.2d at 760-61. To meet this heightened

standard, the defendant must show that “(1) ‘no curative instructions would have obviated any

prejudicial effect on the jury’ and (2) the misconduct resulted in prejudice that ‘had a substantial

likelihood of affecting the jury verdict.’” 174 Wn.2d at 761 (quoting Thorgerson, 172 Wn.2d at

455).

A.        Asking Whether I.M.R. and S.D.R. Were Lying

          First, Ragland argues the prosecutor committed misconduct by asking him on cross-

examination whether I.M.R. and S.D.R. were lying. The State concedes that the prosecutor’s

question was improper, but it argues that the issue is not preserved for appeal because defense

counsel made an inadequate objection at trial. We agree with the State.

          It is improper for a prosecutor to ask a witness whether another witness is lying. State v.

Ramos, 164 Wn. App. 327, 334, 263 P.3d 1268 (2011). A defendant’s “objection to a

prosecutor’s question is inadequate unless it calls the trial court’s attention to the specific reason

for the impropriety of the question.” State v. Padilla, 69 Wn. App. 295, 300, 846 P.2d 564

(1993).

          When a defendant fails to adequately object to a prosecutor’s improper question, the error

is waived unless the prosecutor’s misconduct was so flagrant and ill-intentioned that a curative

instruction could not have obviated the resulting prejudice. State v. Fisher, 165 Wn.2d 727, 747,



                                                   13
No. 47963-0-II


202 P.3d 937 (2009). Further, reversal is required only if the defendant can show a substantial

likelihood that the misconduct affected the verdict. Padilla, 69 Wn. App. at 301. To determine

whether a prosecutor’s misconduct likely affected the verdict, we consider “whether the

prosecutor was able to provoke the defense witness to say that the State’s witness must be lying,

whether the State’s witness’s testimony was believable and/or corroborated, and whether the

defense witness’s testimony was believable and/or corroborated.” 69 Wn. App. at 301.

       On cross-examination, the prosecutor asked Ragland if I.M.R. and S.D.R. were lying, and

Ragland objected on the ground that the prosecutor’s question opened the door to ER 404(b)

evidence that the trial court previously ruled was improper. The trial court overruled Ragland’s

objection, and the prosecutor again asked whether I.M.R. and S.D.R. were lying. Ragland

replied: “No, I’m not saying that they’re liars like you asked me. I’m saying that I believe

they’re being told to lie. I would never call my kids liars, they’d have to know what it is first.”

VRP (July 13, 2015) at 743.

       The State properly concedes that it was improper for the prosecutor to ask Ragland

whether I.M.R. and S.D.R. were lying. However, despite the prosecutor’s improper question,

Ragland objected on ER 404(b) grounds. Because his objection did not adequately call the trial

court’s attention to the specific reason for the impropriety of the prosecutor’s question, Ragland

waived any error unless the prosecutor’s misconduct was flagrant and ill-intentioned. To discern

whether reversal is required, we must determine whether there is a substantial likelihood that the

prosecutor’s misconduct affected the jury’s verdict.

       Ragland fails to show that there is a substantial likelihood that the prosecutor’s

misconduct affected the jury’s verdict. The prosecutor did not provoke him to testify that I.M.R.



                                                 14
No. 47963-0-II


and S.D.R. must be lying or whether they were believable or corroborated. Instead, Ragland said

he would never call his children liars, and he argued that I.M.R. and S.D.R. were coached to lie

about the abuse. This statement alerted the jury to the fact that there could be conflicts in

testimony for reasons other than false testimony, and it was consistent with the defense theory

Ragland presented to the jury. Accordingly, the prosecutor’s misconduct was not likely to have

altered the outcome in this case. Further, a curative instruction could have cured any prejudicial

effect of the prosecutor’s improper statement. Because Ragland fails to show that a curative

instruction could not have obviated any resulting prejudice, Ragland has waived this issue.

B.     Misstatement of Jury Unanimity

       Ragland also argues the prosecutor committed misconduct by misstating the law

regarding jury unanimity on the acts underlying the first degree child molestation charges.

Specifically, Ragland argues the prosecutor instructed the jury to disregard the trial court’s

unanimity instruction for the child molestation of I.M.R. charge and that she encouraged the jury

to convict Ragland of the first degree child molestation of S.D.R. charges without finding

separate and distinct acts to support each count. We disagree.

       A prosecutor commits misconduct if she misstates the law in closing argument. State v.

Warren, 165 Wn.2d 17, 28, 195 P.3d 940 (2008). We review a prosecutor’s statements during

closing argument in the context of the total argument, the issues in the case, the evidence

addressed in the closing argument, and the jury instructions. State v. Walker, 164 Wn. App. 724,

730, 265 P.3d 191 (2011). And we presume that the jury follows the court’s instructions absent

evidence to the contrary. State v. Dye, 178 Wn.2d 541, 556, 309 P.3d 1192 (2013).




                                                 15
No. 47963-0-II


       The trial court instructed the jury that “[t]o convict the defendant on any count of Child

Molestation in the First Degree, one particular act of Child Molestation in the First Degree must

be proved beyond a reasonable doubt, and you must unanimously agree as to which act has been

proved.” CP at 275. During closing argument, the prosecutor stated:

              Now, the Court instructed you about a unanimity instruction, and basically
       what that means is that any count of child molestation in the first degree, there are
       three of them, you have to decide unanimously on one particular act, that you
       believe one particular act occurred. Well, for Count II that’s not going to really
       apply because Count II deals with [I.M.R.].

VRP (July 13, 2015) at 791-92.

       The prosecutor then discussed the first degree child molestation charges pertaining to

both I.M.R. and S.D.R. She continued, “[I]f you go back to that abuse that we talked about, the

abuse disclosures by [I.M.R.] . . . you get to decide what you believe but it has to be unanimous.”

VRP (July 13, 2015) at 792. Then, in discussing the first degree child molestation of S.D.R.

charges, the prosecutor noted that

       [S.D.R] provided [the jury] with the information [it needs] to return a verdict of
       guilty . . . . Specifically, if you all believe that the defendant touched [S.D.R.’s]
       penis on one occasion in that date range, that’s sufficient. Or if you were to believe
       that the defendant made [S.D.R.] touch the defendant’s penis within that date range,
       that’s sufficient.

VRP (July 13, 2015) at 793. Ragland did not object.

       While Ragland was charged with one count of first degree child molestation regarding

I.M.R., the State argued that multiple acts satisfied a conviction of that charge. As a result, the

jury was required to unanimously agree on one act underlying a conviction of first degree child

molestation. Accordingly, the prosecutor misstated the law in arguing that the jury did not have

to “decide unanimously on one particular act” constituting first degree child molestation of



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No. 47963-0-II


I.M.R. VRP (July 13, 2015) at 791-92. Further, the prosecutor’s argument regarding unanimity

for the first degree child molestation charges of S.D.R. is convoluted. It is unclear whether the

prosecutor argued that separate and distinct acts must support each first degree child molestation

charge or whether she argued that either act was sufficient for a conviction on both counts.

       Despite the prosecutor’s improper and unclear description of the unanimity instruction,

we presume that the jury followed the trial court’s unanimity instruction. As a result, any

potential prejudice was cured by the court’s instruction. Further, Ragland does not show that the

prosecutor’s argument had a substantial likelihood of affecting the jury’s guilty verdict on the

three first degree child molestation charges. Accordingly, because Ragland fails to meet his

burden of showing prejudice, Ragland has waived this issue.

C.     Misstatement of the State’s Burden of Proof

       Ragland also argues the prosecutor committed misconduct by misstating the law and

minimizing its burden of proof when it argued in closing that an abiding belief that I.M.R. and

S.D.R. suffered at the hands of their father was a finding beyond a reasonable doubt. We

disagree.

       A prosecutor’s argument misstating, minimizing, or trivializing the law regarding the

burden of proof can be improper. State v. Johnson, 158 Wn. App. 677, 684-86, 243 P.3d 936

(2010), review denied, 171 Wn.2d 1013 (2011). Due process requires that the State bear the

burden of proving each element of a crime beyond a reasonable doubt. Warren, 165 Wn.2d at

26.

       In State v. Osman, 192 Wn. App. 355, 366 P.3d 956 (2016), Division One of this court

addressed whether defense counsel’s definition of the term “abiding belief” misstated the State’s



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No. 47963-0-II


burden of proof. 192 Wn. App. at 375. Division One took note of the Supreme Court of the

United States’ determination that “‘[t]he word “abiding” here has the signification of settled and

fixed, a conviction which may follow a careful examination and comparison of the whole

evidence.’” 192 Wn. App. at 374 (quoting Victor v. Nebraska, 511 U.S. 1, 15, 114 S. Ct. 1239,

127 L. Ed. 2d 583 (1994)). As a result, the term “abiding belief” encouraged jurors “‘to reach a

subjective state of near certitude of the guilt of the accused.’” 192 Wn. App. at 375 (quoting

Victor, 511 U.S. at 14-15). Accordingly, Division One held that defense counsel did not

improperly quantify the State’s burden of proof by arguing that an abiding belief of guilt meant

the jurors would not look back on their decision after leaving the courthouse and wonder if they

made a mistake. 192 Wn. App. at 375.

       Here, the prosecutor argued in closing that “[i]f . . . you have an abiding belief in the truth

of the charge, then you are satisfied beyond a reasonable doubt. . . . [I]f you walk out of here and

you say, ‘I believe those kids,’ that’s an abiding belief. That’s beyond a reasonable doubt.”

VRP (July 13, 2015) at 776. On rebuttal, the State continued,

       [I]f you believe that these children suffered these acts at the hands of their father . . .
       if you have an abiding belief, if you walk out of this room and say yes, in fact, I think
       these children did suffer these acts by their father, you have enough evidence beyond
       a reasonable doubt.

VRP (July 13, 2015) at 817. Ragland did not object.

       Ragland argues that the prosecutor’s statement improperly mischaracterized the State’s

burden of proof because it suggested that believing “the children suffered these acts at the hands

of their father” satisfied belief beyond a reasonable doubt. Br. of Appellant at 23. Ragland also

argues that the State’s argument implied that an abiding belief lasts only until the jurors return a

verdict and leave the courtroom. But looking at the argument as a whole, the prosecutor did not


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No. 47963-0-II


argue that an abiding belief was a fleeting or short-lived belief. Instead, the prosecutor argued

that the jury must have an abiding belief that I.M.R. and S.D.R. suffered the acts charged to

convict Ragland. Therefore, the prosecutor did not mischaracterize the State’s burden of proof.

       Moreover, even assuming the prosecutor’s argument misstated the State’s burden, we

note that Ragland did not object. Because an instruction could have cured any resulting

prejudice, Ragland has waived any error.

D.     Disparaging Defense Counsel

       Ragland also argues the prosecutor committed misconduct by disparaging the role of

defense counsel during rebuttal argument when she argued, “‘Look over here and look over here

. . . . Don’t look at what the kids actually said.’” Br. of Appellant at 26 (quoting VRP (July 13,

2015) at 817). We disagree.

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

challenge defense counsel’s integrity. Warren, 165 Wn.2d at 29-30. A prosecutor arguing in a

manner that disparages defense counsel affects a defendant’s right to trial by an impartial jury.

State v. Reed, 102 Wn.2d 140, 145-46, 684 P.2d 699 (1984). Disparaging defense counsel,

however, is significantly different from disparaging defense counsel’s argument. See Warren,

165 Wn.2d at 30. Counsel is provided significant latitude in closing arguments, and disparaging

opposing counsel’s argument is not a prohibited attack. 165 Wn.2d at 30.

       On rebuttal, the prosecutor stated, “[Defense] [c]ounsel asks you to think about

plausibility.” VRP July 13, 2015 at 817. The prosecutor continued:




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No. 47963-0-II


              [Defense counsel] asks you to look at the plausibility of other scenarios. Look
       over here and look over here and look over here. Don’t look at actually what the kids
       said. Don’t think about the fact that [I.M.R.] told you about [the abuse] . . . and
       provided everybody, particularly you, with more detail about that when defense
       counsel asked her.

VRP (July 13, 2015) at 817. Ragland did not object.

       Ragland argues that the prosecutor’s comments are similar to the prosecutor’s argument

in Thorgerson. 172 Wn.2d at 438. In Thorgerson, the prosecutor described the defense as

“bogus” and argued that “‘[t]he entire defense is sl[e]ight of hand. Look over here, but don’t pay

attention to there. . . . Don’t pay attention to the evidence. . . . Look at everything except what

matters.’” 172 Wn.2d at 451 (alteration in original). The Washington Supreme Court held that

the prosecutor committed misconduct and impugned defense counsel’s integrity by arguing that

defense counsel’s argument was “bogus” and “sleight of hand.” 172 Wn.2d at 451-52. The

court did not discuss whether the “[l]ook over here, but don’t pay attention to there” statement

was improper. See 172 Wn.2d 452.

       While the prosecutor here similarly argued “[l]ook over here and look over here,” the two

arguments were vastly different. In Thorgerson, the prosecutor directly attacked defense counsel

in stating that “the entire defense” was bogus and a sleight of hand. 172 Wn.2d at 450-51.

Conversely, the prosecutor here criticized defense counsel’s argument. Further, the prosecutor’s

statement does not refer to defense counsel’s integrity or his role at trial. Accordingly, the

prosecutor did not commit misconduct.




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No. 47963-0-II


E.     Cumulative Error

       Lastly, Ragland argues that the cumulative effect of the prosecutor’s misconduct deprived

him of a fair trial. We disagree.

       The cumulative error doctrine applies when a trial is affected by several errors that,

standing alone, may not be sufficient to justify reversal. State v. Greiff, 141 Wn.2d 910, 929, 10

P.3d 390 (2000). Cumulative error requires reversal when the combination of errors denies the

defendant a fair trial. 141 Wn.2d at 929. Reversal is not required when there are few or no

errors and the errors, if any, have little to no effect on the outcome of the trial. State v. Weber,

159 Wn.2d 252, 279, 149 P.3d 646 (2006).

       Ragland argues that repeated instances of prosecutorial misconduct constitute cumulative

error and require reversal. As discussed above, Ragland fails to show that the prosecutor’s

allegedly improper questions and statements constitute misconduct. The prosecutor’s question

asking Ragland whether I.M.R. and S.D.R. were lying and description of the unanimity

instruction were improper, but these errors were not prejudicial. As a result, the alleged errors

had little to no effect on the outcome of Ragland’s trial. Accordingly, we hold that Ragland’s

cumulative error claim fails and does not warrant reversal.

                                           CONCLUSION

       We affirm Ragland’s first degree child molestation charges. But we reverse Ragland’s

first degree rape of a child, first degree incest, and second degree incest convictions and remand

for a new trial on those charges.




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No. 47963-0-II


        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.




                                                                      Worswick, P.J.
 We concur:



 Lee, J.




 Sutton, J.




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