                                                                           FILED
                                                                        JULY 30, 2019
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )         No. 36638-3-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
WILLIAM SAMUEL SCHMIDT,                       )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO, J. — William Schmidt appeals from his convictions for four counts of

first degree child molestation, arguing that the prosecutor engaged in misconduct.

Concluding that the trial court did not abuse its discretion in its rulings on misconduct

related claims, we affirm.

                                          FACTS

       Mr. Schmidt was charged with molesting his stepdaughter over a three year

period. The case proceeded to jury trial in the Pierce County Superior Court. In opening

statement, the prosecutor advised jurors that the victim would testify that the defendant

had once rubbed his bare penis on the victim’s clothed vagina. The defense moved for a

mistrial, arguing that there was no evidence to support the statement. The trial court

denied the motion.
No. 36638-3-III
State v. Schmidt


       Exhibit 6 was a drawing by the child depicting what had happened to her. In

closing, the prosecutor relied on a PowerPoint slide show in support of his argument.

Slide 4 displayed exhibit 6 with an insert depicting an enlarged view of one portion of the

slide. The PowerPoint concluded with Slide 36, a slide with the word “JUSTICE” on the

top and the word “Guilty” in the middle.1 Defense counsel objected to slide 36.

       After the jury returned its verdicts, the defense moved for a new trial, reprising its

objections to the opening statement and the closing argument. The trial court denied the

motion for a new trial, concluding that the prosecutor had acted in good faith during

opening statement and there was no misconduct in closing argument. The court also

concluded that any error would have been cured by the court’s first instruction to the jury.

Clerk’s Papers (CP) at 316; Report of Proceedings (RP) at 2092-2093.

       The court imposed an exceptional minimum term sentence of 199 months in

accordance with the jury’s special verdicts finding aggravating circumstances as well as

the mandatory maximum life sentence required for the crime. Findings in support of the

exceptional sentence also were entered.

       Mr. Schmidt timely appealed. Division Two administratively transferred the

appeal to Division Three. This court considered the appeal without hearing argument.




       1
           Color copies of Slides 4 and 36 are attached to this opinion.

                                               2
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State v. Schmidt


                                         ANALYSIS

       The sole issue presented is whether the trial court erred in its rulings on the

misconduct allegations.2 We conclude that the trial court did not abuse its discretion in

determining that there was no prejudicial misconduct.

       A trial court’s decision to grant a new trial is reviewed for abuse of discretion.

State v. Hawkins, 181 Wn.2d 170, 179, 332 P.3d 408 (2014); State v. Williams, 96 Wn.2d

215, 221, 634 P.2d 868 (1981); State v. Marks, 71 Wn.2d 295, 302, 427 P.2d 1008

(1967). The same standard applies to review of motions for a mistrial. State v. Weber, 99

Wn.2d 158, 166, 659 P.2d 1102 (1983). Discretion is abused when it is exercised on

untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12,

26, 482 P.2d 775 (1971). Discretion also is abused when a court uses an incorrect legal

standard in making a discretionary decision. State v. Tobin, 161 Wn.2d 517, 523, 166 P.3d

1167 (2007); State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995). “The

question is not whether this court would have decided otherwise in the first instance, but

whether the trial judge was justified in reaching his conclusion.” State v. Taylor, 60

Wn.2d 32, 42, 371 P.2d 617 (1962).




       2
          Mr. Schmidt also claims that the cumulative error doctrine entitles him to a new
trial, but the alleged errors were both before the trial court in the new trial ruling and it is
unnecessary to reconsider the cumulative nature of the alleged errors.

                                               3
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State v. Schmidt


       The first issue is whether the court erred in denying the mistrial over the opening

statement. A mistrial should be declared when a trial irregularity so tainted the

proceedings that the defendant was deprived of a fair trial. Weber, 99 Wn.2d at 164. The

problem presented here involves an interview of the child. The written interview

statement indicated that the defendant rubbed his penis on the child while both were

clothed. The deputy prosecutor interpreted the child’s interview remarks as indicating

that the defendant rubbed his uncovered penis on the child while both were wearing

clothing. The trial court concluded that the prosecutor acted in good faith and it was up

to the jury to determine what the child’s statement meant.

       These were tenable reasons for denying the mistrial. It was plausible that the

defendant merely uncovered his penis while keeping his clothing on. Given the limited

vocabulary of most young children, we cannot fault the trial court’s conclusion that the

prosecutor acted in good faith. More importantly, an error of this variety is seldom going

to deprive a defendant of a fair trial because the evidence in question was put before the

jury for its consideration. If the prosecutor adopted an implausible interpretation of the

statement, then the jury has a reason to doubt the prosecutor’s case rather than rely on an

extra-record reason to convict the defendant. If the prosecutor had promised something

he did not deliver—an eyewitness to the crime or other significant evidence that was

never introduced—then the trial court would have faced a different problem that



                                             4
No. 36638-3-III
State v. Schmidt


significantly impacted the probability of having a fair trial. But merely overstating the

meaning of evidence admitted at trial only harms the prosecutor, not the defendant.

       Having tenable grounds for denying the mistrial motion, the court did not abuse its

discretion.

       As with the mistrial motion, a motion for a new trial should be granted when the

defendant’s right to a fair trial has been prejudiced. State v. Lord, 117 Wn.2d 829, 887,

822 P.2d 177 (1991). While the defendant’s motion included the mistrial allegation

within its argument, the primary focus was on slides 4 and 36. The trial court found that

there was no misconduct and that any misconduct was not prejudicial in light of jury

instruction 1, the standard instruction telling jurors that the remarks of the attorneys are

not evidence and that those remarks should be disregarded if they conflict with the

evidence or the law contained in the court’s instructions. CP at 132; RP at 2092-2093.

       We agree with the trial court that Slide 4 did not constitute error. Exhibit 6 had

been admitted and Slide 4 simply consisted of that exhibit along with an added

enlargement of the portion of the child’s drawing showing how the touching occurred.

See Slide 4. Unlike Mr. Schmidt, we do not consider this slide an “alteration” of the

exhibit. The meaning of the drawing was not changed merely because a portion of it was

enlarged to aid viewing. The State was free to focus the jury’s attention on the salient

portion of the exhibit.



                                              5
No. 36638-3-III
State v. Schmidt


       Slide 36, however, is a different story. Although it should not be surprising to the

jury when a prosecutor argues the defendant is guilty of the charged crime, the

presentation of that conclusion on a slide can constitute prejudicial misconduct. See State

v. Walker, 182 Wn.2d 463, 341 P.3d 976 (2015); In re Glasmann, 175 Wn.2d 696, 286

P.3d 673 (2012); State v. Hecht, 179 Wn. App. 497, 319 P.3d 836 (2014). In those cases,

it largely was the sensational nature of the slides that was particularly problematic. E.g.,

Walker, 182 Wn.2d at 468 (100 slides captioned with “Defendant Walker Guilty of

Premeditated Murder”). By superimposing the “guilty” theme on a large number of

slides, the prosecutor conveyed a personal opinion of the defendant’s guilt. Id.

Superimposing the caption also served to alter the pictures and exhibits to which the

caption was added. Id.

       We cannot equate a single slide presented at the conclusion of the argument with

the 100 slides used in Walker. But the pairing of the word “guilty” with the word

“justice” is particularly inappropriate and can easily be interpreted as the prosecutor’s

own personal opinion rather than as the conclusion the prosecutor is urging the jury to

draw from evidence and the law. And while every prosecutor in this state should be wary

of using a slide such as this one, we think that a Pierce County Deputy Prosecutor should

be particularly sensitive to this issue in light of the noted authorities.

       Nonetheless, under the facts of this case, the trial court had tenable grounds for

concluding as it did that any misconduct was not prejudicial in light of the court’s

                                               6
No. 36638-3-III
State v. Schmidt


instruction. The "guilty" conclusion did not permeate the slide show and came at the

natural point of the argument-the conclusion the prosecutor sought for the jury to reach.

To the extent that it conveyed the prosecutor's personal, rather than professional, view of

the outcome, it was not so egregious that the defendant's right to a fair trial was

impugned.

       The trial court had tenable grounds for denying the motion for a new trial. There

was no abuse of the court's discretion.

       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




                                              7
No. 36638-3-III
State v. Schmidt


                   ATTACHMENT 1



                     Photos




                        8
No. 36638-3-III
State v. Schmidt


                         ATTACHMENT 2



               JUSTICE



                             Guilty




                              9
