                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                         October 13, 2015

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                No. 46603-1-II

                                Respondent,

        v.

 SAMUEL TROY BURRIS,                                          UNPUBLISHED OPINION

                                Appellant.

       MELNICK, J. — Samuel Burris appeals his conviction of voyeurism. He argues that the

trial court abused its discretion when it permitted the victim to testify about the crime’s emotional

impact on her and that the prosecuting attorney committed misconduct during the State’s closing

argument. Because the court did not abuse its discretion by admitting this evidence and because

the prosecutor did not make improper argument, we affirm.

                                              FACTS

       Burris and Jennifer Maya were in a romantic relationship from approximately February to

April 2013. Their relationship deteriorated. On April 3, 2013, Burris texted Maya a message that

contained still images, taken from a video, of Maya and Burris engaged in sexual intercourse.

Maya reported the images to law enforcement. The State charged Burris with voyeurism.

       At trial, Maya testified that before she received the text message, she had no knowledge of

Burris filming her. She “never,” “not once” consented to Burris either photographing or filming

her while they engaged in sexual intercourse. 2 Report of Proceedings (RP) at 210. When she

confronted Burris about the images and asked why he filmed her, Burris told her that he did it
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“[b]ecause when you’re with someone and you’re being videotaped, they act different, versus

someone who is not being videotaped. And I wanted to catch you in the moment without you

knowing you’re being videotaped.” 2 RP at 210-11. Burris told Maya that he knew she would not

consent if he asked to videotape her.

         During direct examination, the State asked Maya if there was anything from this experience

“that stands out that [she] just cannot forget?” 2 RP at 212. Burris objected and argued that the

emotional impact of the crime was irrelevant and unduly prejudicial. Outside the jury’s presence,

Maya stated that she lost her trust in men and would not “bring any other man around [her] or [her]

kids.” 2 RP at 212. The trial court overruled Burris’s objection. In front of the jury, Maya testified

         I won’t forget the feeling I felt, the betrayal, the vulnerability of being vulnerable and not
         knowing it.
                 I’ve—I’m no longer confident in having a relationship with another individual, a
         man, because I’ve—you know, I was married for a long time and I got with [Burris] and I
         didn’t think that was possible.
                 I’m not going to risk having this happen again or have it being—my kids involved.
         I’m just—I’m not going to be involved with anybody else.

2 RP at 219.

         Burris testified that Maya acted surprised when he sent her the images. He said she had

previously permitted him to film her. He introduced into evidence several nude or partially nude

photographs he had taken of her. Burris described multiple incidents in which he held his phone

in his hand while they engaged in sexual intercourse. Burris admitted he never asked Maya’s

permission to record her on those occasions, and she acted differently when he was holding his

phone.

         Burris further testified that while filming the video from which he sent Maya still images,

he placed his phone on the dresser and left it there. He did not think it necessary to tell Maya he

was using his phone to record, and Maya provided no indication she knew about the recording.



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Burris wanted to record Maya acting “natural[ly].” 3 RP at 324. Burris admitted his goal could

only be accomplished if Maya did not know about the filming. He further admitted that he did not

obtain any kind of express consent from Maya to record her.

        During closing argument, Burris’s defense counsel focused on Maya’s credibility. He

emphasized that several photographs in evidence demonstrated Maya knew about the recording.

In rebuttal the State argued

        Defense depicts this as a photograph of her being consensually captured on film in an adult
        setting. I would propose a different interpretation.
                I would propose that this is something that you will never see again from Jennifer
        Maya. She will never sit there in a room topless with a significant other, comfortable. She
        will never again sit in a room and not question, What is somebody doing? What are they
        up to? She will never again sit in a room—

3 RP at 385. Burris objected that the State was attempting to inflame the jury. The trial court

stated that the prosecuting attorney was “pushing the edge” and told him to move on. 3 RP at 385.

        The prosecuting attorney also argued the following in rebuttal:

                  You have no evidence to back up the defendant’s claim that she’s consented in the
        past. . . .
                  Furthermore, the instruction specifically says consent means that at the time of the
        act, words or conduct indicating freely given agreement. At the time of the act. So you
        don’t get to infer consent as it’s defined in the law. And that is what governs your decision-
        making. Nowhere anywhere in there, in this instruction, is there a subjective component.
        It does not say consent is established if Mr. Burris thought there was consent. It needs to
        be an affirmative act that Ms. Maya did indicating her involvement in this. She needs to
        do something, whether she says it verbally, or what have you, it needs to be an affirmative
        act, and it needs to be at the time of the act.

3 RP at 381-82. Burris objected that consent does not require an affirmative act. The trial court

instructed the jury to refer to the jury instructions, which said that consent means “at the time of

the act there are actual words or conduct indicating freely given agreement for the act.” CP at 32

(Instr. 7).




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       The jury found Burris guilty of voyeurism. The jury made a special finding that Burris and

Maya were members of the same household. The trial court sentenced Burris to 180 days’

confinement. He appeals.

                                            ANALYSIS

I.     RELEVANT EVIDENCE

       Burris argues that the trial court erred when it permitted Maya to testify about the emotional

impact of Burris’s actions because the probative value of this evidence was outweighed by the

danger of unfair prejudice. We disagree.

       A.      Standard of Review

       We review a trial court's decision to admit or exclude evidence for an abuse of discretion.

State v. Griffin, 173 Wn.2d 467, 473, 268 P.3d 924 (2012). “An abuse of discretion occurs if the

court's decision is manifestly unreasonable or rests on untenable grounds.” Griffin, 173 Wn.2d at

473. The trial court is in the best position to evaluate the relevancy and prejudicial effect of

evidence. State v. Johnson, 185 Wn. App. 655, 670, 342 P.3d 338 (2015). We will overturn “the

[trial] court’s balancing of the danger of prejudice against the probative value of the evidence ‘only

if no reasonable person could take the view adopted by the trial court.’” Johnson, 185 Wn. App.

at 670-71 (quoting State v. Posey, 161 Wn.2d 638, 648, 167 P.3d 560 (2007)).

       Evidence is relevant if it has “any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without the evidence.” ER 401. ER 403 provides that the trial court may exclude relevant evidence

if its probative value is substantially outweighed by the danger of unfair prejudice.




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       B.      No Abuse of Discretion

       Burris argues that Maya’s testimony about her emotional reaction to the crime was more

prejudicial than probative because “[e]vidence that Maya has suffered permanent emotional harm

provided an inviting and heart-rending incentive to find Burris guilty.” Br. of Appellant at 11. We

disagree because the trial court did not abuse its discretion by finding the danger of unfair prejudice

did not substantially outweigh the probative value.

       To convict Burris of voyeurism, the State had to prove, in part, that Burris photographed

or filmed Maya without her knowledge and consent. RCW 9A.44.115. The primary disputed

issue for the jury to decide involved whether Maya consented to Burris filming her while engaged

in sexual intercourse. Maya’s testimony about her emotional reaction when she discovered Burris

had filmed her was relevant to the issue of consent.

        Maya’s emotional reaction to the filming allowed the jury to better determine whether

Burris filmed her without her knowledge and consent. Because Burris claimed that Maya

consented to filming and photographing in the past, this evidence presented the jury with additional

facts on the issue of consent. In admitting the evidence, the court found that any potential prejudice

did not substantially outweigh its probative value. We cannot say that the trial court's decision is

manifestly unreasonable or rests on untenable grounds. Therefore, the court did not abuse its

discretion.

II.    PROSECUTORIAL MISCONDUCT

       Burris argues that the prosecuting attorney committed prosecutorial misconduct during the

State’s closing argument by impermissibly appealing to the passion of the jury and by misstating

the law on consent.




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       A.      Standard of Review

       To establish prosecutorial misconduct in closing argument, a defendant must show that the

prosecuting attorney’s remarks were both improper and prejudicial. State v. Kennealy, 151 Wn.

App. 861, 891, 214 P.3d 200 (2009). A prosecutor has “wide latitude” in making arguments to the

jury and prosecutors are allowed to draw reasonable inferences from the evidence in closing

arguments. State v. Gregory, 158 Wn.2d 759, 860, 147 P.3d 1201 (2006), overruled on other

grounds by State v. W.R., 181 Wn.2d 757. 336 P.3d 1134 (2014).

       Where, as here, the defendant objected at trial, we analyze whether the prosecuting

attorney’s “misconduct resulted in prejudice that had a substantial likelihood of affecting the jury's

verdict.” State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012); State v. Anderson, 153 Wn.

App. 417, 427, 220 P.3d 1273 (2009).

       A prosecutor “‘should not use arguments calculated to inflame the passions or prejudices

of the jury.’” State v. Fedoruk, 184 Wn. App. 866, 887, 339 P.3d 233 (2014) (quoting In re Pers.

Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012)). Additionally, a prosecutor

has a duty to act impartially and to argue the correct law to the jury. State v. Swanson, 181 Wn.

App. 953, 958-59, 327 P.3d 67 (2014).

       B.      Prosecutorial Misconduct

       Burris first argues that the prosecuting attorney impermissibly appealed to the passion of

the jury during the State’s rebuttal closing argument by referencing Maya’s testimony about her

emotional reaction to the crime. We disagree.

       The prosecuting attorney’s remarks were not improper. They were made in response to the

defendant’s closing argument and theory of the case. A prosecutor is entitled to make fair




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responses to defense counsel’s arguments. State v. Gauthier, ___ Wn. App. ___, 354 P.3d 900,

904 (2015)

       Burris argued in closing that the other photographs of Maya demonstrated that she knew

Burris filmed her while they engaged in sexual intercourse. During rebuttal, the prosecuting

attorney responded that the photos did not demonstrate consent. See 3 RP at 385. (“Defense depicts

this as a photograph of [Maya] being consensually captured on film in an adult setting. I would

propose a different interpretation. I would propose that this is something that you will never see

again from Jennifer Maya.”). The prosecuting attorney did not appeal to the passion of the jury,

but did appropriately respond to Burris’s closing argument. The prosecuting attorney’s statements

were not improper.

       Burris next argues that the prosecuting attorney misstated the law during the State’s rebuttal

closing argument by stating that consent requires an affirmative act. We review a prosecuting

attorney’s “comments during closing argument in the context of the total argument, the issues in

the case, the evidence addressed in the argument, and the jury instructions.” State v. Carver, 122

Wn. App. 300, 306, 93 P.3d 947 (2004). In addition, a prosecuting attorney's improper remarks

are not grounds for reversal if the defense counsel invited or provoked the comments, the

comments are a pertinent reply to defense counsel's arguments, and the comments are not so

prejudicial that a curative instruction would be ineffective. Carver, 122 Wn. App. at 306.

       Here, the prosecuting attorney’s comments did not constitute misconduct. Burris stated

during closing argument, “[I]f Mr. Burris believed he had consent and it was reasonable to believe

that, he has consent. That’s it.” 3 RP at 379-80. The prosecuting attorney responded by first

repeating the jury instruction defining consent as requiring “words or conduct” and then arguing

that consent cannot be inferred. 3 RP at 382. In an attempt to elaborate that consent requires actual



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words or conduct, the prosecuting attorney stated, “[The instruction] does not say consent is

established if Mr. Burris thought there was consent. It needs to be an affirmative act that Ms.

Maya did [consent]. . . . She needs to do something . . . it needs to be an affirmative act, and it

needs to be at the time of the act.” 3 RP at 382. While ineloquent, the prosecuting attorney did

not misstate the law. In the context of the total argument, the issues in the case, the evidence

addressed in the argument, and the jury instructions, the prosecuting attorney’s statements were

not improper.1

        We affirm.

        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.




                                                            Melnick, J.

We concur:




        Worswick, J.




        Johanson, C.J.


1
  Even if we had held that the prosecuting attorney committed misconduct, Burris has not
demonstrated prejudice. The trial court instructed the jury, that consent means “at the time of the
act there are actual words or conduct indicating freely given agreement for the act.” CP at 32
(Instr. 7). Additionally, the trial court instructed the jury to consider only the evidence, not
counsels’ statements or remarks.


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