                                                                                                                   FILED
                                                                                                            COURT OF APPEAL
                                                                                                               DIVISION 1l
                                                                                                          2015 FEB I 0 AM 8:

                                                                                                                        HMG
           THE COURT OF APPEALS OF THE STATE OF WASHINGT 1 \\\
      IN


                                                 DIVISION II
                                                                                                                   Falk,
    STATE OF WASHINGTON,                                                            No. 44710 -0 -II


                                       Respondent,


           v.




    RAYMOND SAMUEL REYNOLDSON,                                                UNPUBLISHED OPINION


                                       Appellant.


           WoRSwIcK, J. —      Following the State' s successful appeal of an order granting a new trial,

the trial court sentenced Raymond Reynoldson on his convictions for first degree kidnapping

with sexual motivation,1 first degree attempted rape,2 and second degree assault with sexual

motivation.3 Reynoldson now appeals, arguing that ( 1) the trial court violated his public trial

                                                State'                 argument, ( 2)   the prosecutor committed
rights   by holding    a sidebar   during the            s   closing


misconduct      by   vouching, ( 3)   trial counsel provided ineffective assistance by failing to object to

that vouching, and ( 4) jurors committed misconduct by considering extraneous information of

Reynoldson' s prior convictions. We hold that Reynoldson has failed to establish a public trial

right violation, has waived his vouching claim, and has failed to meet his burden to show either

ineffective assistance of counsel or juror misconduct. Accordingly, we affirm.




1
    Former RCW 9A. 40. 020 ( 1975); former RCW 9. 94A.030( 37) ( 1999).


2 RCW 9A.44. 045; former RCW 9A.28. 020 ( 1994).

3
    RCW 9A. 36. 021( 1)( f);former RCW 9. 94A.030( 37).
No. 44710 -0 -II




                                                           FACTS


A.         The Facts Established by Testimony

           1.   DGM's Testimony ofthe Night ofthe Crime

           DGM4 testified that in 2000, Raymond Reynoldson approached her at a restaurant and


solicited oral sex and vaginal intercourse from her in exchange for money. DGM agreed, and

Reynoldson and DGM went to Reynoldson' s house in his vehicle.

           Reynoldson parked the vehicle behind the house. DGM and Reynoldson walked around


the house, entered through the house' s front door, and went to Reynoldson' s bedroom. Inside

the bedroom, Reynoldson unsuccessfully attempted to perform vaginal intercourse with DGM.

Then, Reynoldson, against DGM' s will, forcefully flipped her over on her stomach, ripped off

her shirt and bra, bound her hands behind her back with her bra, tied her feet up with her socks,

gagged her mouth with a bandana secured by a sock tied around her head, and twisted her

nipples. Reynoldson again attempted to penetrate her, but failed.

           Reynoldson then left the bed and walked out of the room. While Reynoldson was


walking around the house, DGM managed to untie her feet. Still naked, and with her arms and

mouth bound, DGM jumped out of a closed window by breaking the glass with the force of her

body. DGM testified she felt she had to jump out of the closed window because she was afraid

of being killed or tortured.




4
    This   opinion uses   initials to   protect   the   victim' s   privacy.
No. 44710 -0 -II




        Reynoldson, who was also naked, jumped out of the window and began punching DGM

and attempting to drag her .back to the house. A nearby neighbor, Deborah Tarnecki, ran over to

help   DGM. This       act caused     Reynoldson to flee         around     the   house. DGM testified: " Thank God


the neighbors across the street were having a party. They heard the crash, the window crash."

Verbatim Report        of   Proceedings ( VRP)       at   764;   see also   VRP     at   765 ( DGM testifying: "[ T] hank


God the neighbors were having a party. ").

         2.   Tarnecki' s Testimony ofthe Night ofthe Crime

         Tarnecki testified she was in her home when she heard glass break, and exited her home

to investigate. Tarnecki saw DGM outside of the window, naked, in a fetal position, with her

mouth gagged and hands tied. She saw Reynoldson on top of DGM, attempting to drag her back

into the house. While Reynoldson was attempting to drag DGM back to the house, she was
                                                                                           5
clinging to the   grass and     making      muffled screams           through the gag.



         When Tarnecki ran over to DGM, Reynoldson ran into the house. Tarnecki took DGM


back to her nearby home. DGM was terrified, and in a state of such extreme shock that she

could not walk without assistance. DGM related to Tarnecki that


          Reynoldson] was going to get a knife and finish her off. She said, he was torturing
         me,    twisting my     nipples.     She said, I was in so much pain. She said that she heard
         the knives jingling in the kitchen, so she knew that she was going to die. She knew
         that   she   had to   jump   out   that   window    for her life. She kept saying over and over,
         he was going to kill me. He is going to kill me. She thought that he was still going
         to come after her because she was so scared. He had been torture raping her.

VRP at 920. Tarnecki called 911.



5 Tarnecki identified the man that she saw attempting to drag DGM back into the house as
Reynoldson.      But    Tarnecki    also    testified that "[    Reynoldson] does not look the same at all [ as]
what   he looked [ like      around   the time of the      crime],     but I   can see   the   resemblance."   VRP at 903.



                                                                  3
No. 44710 -0 -II




         3. Detective Kimberly Sheskey' s Testimony ofHer Investigation

         Detective Kimberly Sheskey responded to the 911 call and met DGM at. Tarnecki' s

home. Detective Sheskey testified that DGM was visibly upset and had a sock tied around her

neck. Detective Sheskey went with DGM to the hospital, where medical professionals examined

DGM and forensics technicians took photographs of her injuries. Detective Sheskey was present

for this,   and stated   in her   police report   that DGM had " cuts,   scratches, [   and] bruises on her face,


legs,   arms, and    back." VRP at 831.


          At the hospital on the night of the crime, DGM made statements to Detective Sheskey

that were inconsistent with her trial testimony, including statements that DGM met Reynoldson

while hitchhiking for a ride to the Tacoma Dome, that Reynoldson took an unexpected detour to

the house, that Reynoldson twisted her arm behind her back immediately upon exiting

Reynoldson' s vehicle, that they entered the house through the back door, and that Reynoldson

threw DGM down on the bed. At trial, DGM testified that these inconsistent statements were


lies that she told Detective Sheskey because she was afraid of being arrested for prostitution.

            After DGM' s exam, Sheskey searched Reynoldson' s house and found a condom in the

bedroom. At trial, the parties stipulated that Reynoldson' s DNA (deoxyribonucleic acid) was on

the condom' s interior and that DGM' s DNA was on the condom' s exterior.


            4.   Tonya Bloomstine 's Testimony ofHer Medical Examination

            Nurse Tonya Bloomstine was one of the medical professionals who examined DGM on

the night of the crime. Bloomstine testified that a physical exam confirmed that DGM had

multiple abrasions and contusions to her lower back, mid -back, and extremities. DGM was




                                                           4
No. 44710 -0 -II




tearful and crying during the exam. DGM told Bloomstine that her arms, legs, and mouth had

been bound and that she had been sexually assaulted.

       5. DGM's Testimony as to Her Injuries

       DGM provided further testimony describing the injuries she suffered from the crime.

DGM' s testimony was supported by the forensic technicians' pictures of her injuries. The

evidence showed that Reynoldson bruised DGM' s eye and face by punching her, bruised her

neck by choking her, scratched her by attempting to drag her back into the house after she had

jumped out of the window, and bruised her wrists by binding her.

B.     Reynoldson' s Extradition, Charges, and Trial


       Reynoldson left Washington State after the crime in 2000 and the State could not find

him again until 2005, when the State discovered he was incarcerated in Oregon on unrelated

charges. In 2006, the State charged Reynoldson with first degree kidnapping with sexual

motivation, first degree attempted rape, and second degree assault with sexual motivation. But

because the State was unable to extradite Reynoldson until 2009, he was not tried until 2010.

        The trial court granted the State' s motion to exclude witnesses from the courtroom. The

State elicited the testimony discussed above. Reynoldson rested without presenting any

testimony.

C.      The State' s Closing Argument

        1.   Sidebar


        In the middle of the State' s closing argument, the State requested and was granted a

sidebar. The actual sidebar was not transcribed:




                                                   5
No: 44710 -0 -II




        The State]: Your Honor, can I address the court for just a moment?
        Trial Court]: At sidebar?
        The State] : Yes.
        Trial Court] : Okay.


                          Sidebar)


        Trial Court]:   Okay, Ms. Ahrens, please continue.
        The State to the  Jury]: As I' m talking, ladies and gentlemen, I want you to feel free
       to, just like throughout the trial, that if you feel like you may be nodding off or if
       you are uncomfortable, you get up and move around and stretch your legs, if you
       need  to. I have a lot to talk about. I don' t want to bore you, but there are things
       that I want to make sure that I want to cover. If for some reason you need to kind
       of jolt your bodies, please feel free to do that.

VRP at 1053.


        2. Alleged Vouching

        In its closing argument, the State made the following comments that Reynoldson alleges

constituted vouching:


         1] You were paying attention to what each of these witnesses testified to. I would
        like to go back through at least we are all on the same page on what it is that the
        State believes that the information that was elicited from these witnesses.

         2] He tries to    pull   her back into the house.     And thank God for the neighbor
        Deborah Tarnecki. Deborah told        you   that   she was seated   in her home.   She was

        with her family. They heard this glass breaking.

         3] When she went in, she told those detectives exactly what it is that she told you.
        She didn' t keep along with that story that she initially told Officer Sheskey about
        how it was that she and the defendant made contact. She told the truth.

         4] She told the truth as she told you the events that took place on that day while
        she was seated in that box for you to be able to witness and see how her demeanor
        as she described those events to you.


         5]   So the defendant is guilty —we believe that we have proven each of these
        elements   beyond a reasonable doubt. At a minimum the rape in the —the Attempted
No. 44710 -0 -II




       Rape in the Third Degree, but we believe that we have proven the Attempted Rape
       in the First Degree.


           6] You take that information and decide whether or not you think these people are
       credible.        Are   they believable      people?     Does this        make      sense?    Does it fit the
       elements of the crimes that are charged. Once you do, we believe that you should
       be        or should    have   an   abiding belief in the truth          of   the   charge.   You should be
       satisfied beyond a reasonable doubt as to the offenses charged against the
       defendant.


            7] What I would submit to you is that when Donna testified to you, she was honest.
           She told you about her lifestyle then. She told you about her life now, how that has
           changed.  She told you that she initially lied and why she lied. She told you what
           she had agreed upon with the defendant even though it is, clearly, embarrassing for
       her to tell you that.


           8] You heard from Officer Sheskey. Officer Sheskey told you, look, I don' t recall
           everything that happened in this            case.        She needed her report to refresh her
           recollection about a lot of things that happened. She didn' t get up there and try to
           make up things. She got up there and looked honest. She tried to look through her
           report to answer any questions that were asked of her about the evidence that was
           found there.


            9]    You    heard from        Tonya    Bloomstine,          who    treated [     DGM];     from     Brett
           Reynoldson, who was a bit reluctant to tell you that his father was actually staying
           in the home, but did; former Detective Ed Baker came in to talk to you; and you
           also   heard from Detective Miller          about       his   actions.     Each one of these people
           provided you with the information that they had so that you can make a decision.
           These are credible people. The testimony that they gave is in line with the evidence
           that   you   have —has been submitted to you.


VRP   at   1044, 1056, 1063, 1064, 1084, 1088 -91 (            emphasis added).             In its rebuttal to


Reynoldson' s closing, the State stated the following:

            10] [ DGM] can be believed. She told you that she lied. She came in here and told
           you that. She told you the reasons why. She told you that she was ashamed. She
           told you to the best of her ability her memory, what it was that took place.

            11] She told you what she did and what she didn' t do that day. She just left it up
           to you to decide what happened. She didn' t come in here with any false pretenses.
           She told you like it was.




                                                               7
No. 44710 -0 -II




VRP   at   1123 -25 (   emphasis added).    Of these eleven comments, trial counsel objected to only

comment [     3],   objecting that the prosecutor was commenting on matters not in evidence, rather

than vouching. The trial court overruled trial counsel' s objection, stating:

           Well, the    jury   has been instructed that the lawyers'          remarks,    statements,      and

           arguments are not     the   evidence and not   the   law.   They   are   the deciders   of   that.   I
           will let them make that decision.


VRP at 1063 -64.


D.         Conviction, Juror' s Allegations ofJury Misconduct, and Order Granting a New Trial

           The jury found Reynoldson guilty of first degree kidnapping, first degree attempted rape,

and second degree assault. By special verdict form, the jury found that Reynoldson committed

first degree kidnapping and second degree assault with sexual motivation. The jury was polled

and each juror affirmed that he or she agreed with the verdict, and that the verdict was the jury' s

unanimous decision.


           After the verdict, one of the jurors filed an affidavit alleging many irregularities in the

jury verdict process, including the following:

           There was discussion between several jurors who opined about how many other
           times Mr. Reynoldson may have done this and gotten away with it. There also was
                                                              6
           reference to the necessity of his being locked up.




           When the jury was polled I lied when I affirmed my " guilty" vote because I was
           convinced that the judge would send us all back into that room together and I would
           be subjected to further verbal abuse and ridicule.



6 Reynoldson' s criminal history included four prior convictions, including two prior second
degree     rape ( former   RCW 9A. 44. 050 ( 1997)) convictions and one prior second degree

kidnapping ( former RCW           9A.40. 030 ( 1975)) conviction. These offenses were not mentioned to
the jury during trial.
No. 44710 -0 -II




Clerk' s Papers ( CP) at 342.


       Based on this affidavit, Reynoldson moved for a new trial, arguing that he was deprived

of his right to juror unanimity because the averring juror did not actually agree with the jury' s

verdict, and because the jurors committed misconduct by erroneously considering extrinsic

evidence. The trial court entered an order granting a mistrial, ruling that the verdict was not

unanimous because the juror committed misconduct by lying when polled by the trial court. The

trial court' s order did not address whether the jurors committed misconduct by considering

extrinsic evidence.



E.     Appeal, Reversal of Order Granting a New Trial, Reinstatement of Verdict, and
        Sentencing

           The State appealed the trial court' s order granting a new trial and we reversed that order

in State   v.   Reynoldson, 168 Wn.           App.   543, 545, 277 P. 3d 700 ( 2012).           When deciding

Reynoldson, we first discussed the scope of our review:


           Here, the trial court found that the juror committed misconduct when she lied
           during the jury poll. As Reynoldson notes, the trial court did not make findings of
           fact   on or rule on   any       other aspect of    the juror' s declaration.        Therefore, the sole

           question before us is whether we may consider the juror' s statements in her affidavit
           that she lied when she was polled.


Reynoldson, 168 Wn.        App.        at   548 ( internal   citations omitted).         We then reversed the trial court


on this narrow issue, holding courts cannot consider a juror' s statements that she lied when

polled because such statements go to the reasoning behind her vote to convict which " clearly

inheres in the      verdict and   is   not subject    to the trial    court' s   later   review."   168 Wn. App. at 552.

We did not consider whether the jury committed misconduct by considering extrinsic evidence.




                                                                  9
No. 44710 -0 -II




         The trial court reinstated the jury' s verdict without considering the other issues in

Reynoldson' s original motion for a new trial. The trial court imposed a sentence of life


imprisonment without the possibility of parole pursuant to the persistent offender accountability

act.7 Reynoldson appeals.

                                                            ANALYSIS


                                                   I. PUBLIC TRIAL RIGHT


         Reynoldson argues the sidebar conference during the prosecutor' s closing argument

violated his public trial right. We disagree.


         Whether a violation of the public trial right has occurred is a question of law we review

de   novo.    State     v.   Smith, 181 Wn.2d. 508, 513, 334 P. 3d 1049 ( 2014). Our state constitution and


the United States Constitution guarantee both criminal defendants and the public the right to

open and public          trials. U. S. CONST.      amend.     VI; WASH. CONST.             art.   I, §§ 10, 22.


         When analyzing whether a public trial right violation occurred, we now employ a three -

step framework adopted in Smith, which asks:

             1) Does the proceeding          at. issue     implicate the     public     trial   right? ( 2)   If so, was the

         proceeding closed? And (3) If so, was the closure justified?

181 Wn.2d         at   521.    Where we hold the answer to the first step' s question is negative, we need

not reach     the      subsequent steps.     181 Wn.2d at 519.


         In Smith,           our   Supreme Court held that          under   the first step, " reasonable and traditional"


sidebars     do   not    implicate the    public   trial   right.    181 Wn.2d     at   521. And the court cautioned:




7 Former RCW 9. 94A. 120 ( 1999).



                                                                     10
No. 44710 -0 -I1




             M] erely characterizing something     as a " sidebar"   does   not make   it   so.         To avoid
         implicating the public trial right, sidebars must be limited in content to their
         traditional subject areas, should be done only to avoid disrupting the flow of trial,
         and must either be on the record or be promptly memorialized in the record.

181 Wn.2d at 516 n. 10.


         Here, the conversation at sidebar, occurring in the middle of the prosecutor' s closing

argument, was not memorialized in the record. 8 The record reveals that the prosecutor requested

a sidebar     for "just   a moment,"   the request was granted, a sidebar occurred, and the prosecutor


then asked the jury to maintain their concentration during his closing argument. See VRP at

1053. This appears to be the State' s response to a juror' s inattentiveness.


         The sidebar at issue here was clearly done to avoid disrupting the flow of trial, and

although neither conducted nor memorialized on the record, appears to be limited to a traditional


area: seeking the trial court' s assistance in maintaining juror attentiveness during closing

arguments. We hold that a sidebar of the type conducted here did not implicate Reynoldson' s


public trial right. Because the answer to the first step' s question is negative, we do not consider

the   other   two   steps.   181 Wn.2d at 519.


                                 II. PROSECUTORIAL MISCONDUCT: VOUCHING


             We next consider Reynoldson' s argument that the prosecutor committed misconduct by

vouching. Reynoldson failed to preserve this argument for review.




8 We note that to raise a public trial right claim for the first time on appeal, a defendant bears the
burden of establishing a manifest error by providing a record showing that a closure occurred.
State   v.   Koss, 181 Wn.2d 493, 502 -03, 334 P. 3d 1042 ( 2014);      see   RAP 2. 5(     a)(   3).    Because the
sidebar was not memorialized, Reynoldson failed to provide a record showing that a closure
occurred in this case. See Koss, 181 Wn.2d at 502 -03.


                                                        11
No. 44710 -0 -II




       Prosecuting attorneys are quasi-judicial officers charged with the duty of ensuring that a

defendant receives a fair trial. State v. Boehning, 127 Wn. App. 511, 518, 111 P. 3d 899 ( 2005).

Prosecutorial misconduct violates that duty and can constitute reversible error. State v.

Davenport, 100 Wn.2d 757, 762, 675 P . 2d 1213 ( 1984); see Smith v. Phillips, 455 U.S. 209,


219, 102 S. Ct. 940, 71 L. Ed. 2d 78 ( 1982).         A prosecutor commits misconduct by personally

vouching for a witness' s credibility. State v. Brett, 126 Wn.2d 136, 175, 892 P. 2d 29 ( 1995).

We will reverse a conviction when the defendant has met his burden of establishing ( 1) the State

acted improperly and ( 2) the State' s improper act prejudiced the defendant. State v. Emery, 174

Wn.2d 741, 756, 278 P. 3d 653 ( 2012).


       But a defendant who fails to object to the State' s improper act at trial waives any error,

unless the act was so flagrant and ill- intentioned that an instruction could not have cured the


resulting   prejudice.   State   v.   Thorgerson, 172 Wn.2d 438, 443, 258 P. 3d 43 ( 2011).         In making

that determination, we " focus less on whether the prosecutor' s misconduct was flagrant or ill -

intentioned and    more on whether        the resulting   prejudice could   have been   cured."   Emery, 174

Wn.2d at 762. Here, Reynoldson objected to only one of the statements, asserting the prosecutor

argued facts not in evidence. He did not lodge any objection based on the rule against vouching.

Because Reynoldson did not object to any vouching, and because we focus on whether the

resulting prejudice could have been cured, we consider what would have happened had

Reynoldson objected to vouching. See 174 Wn.2d at 762 -63.

        Here, had Reynoldson objected to the prosecutor' s vouching, the trial court could have

cured any prejudice resulting from the prosecutor' s statements by giving the jury an instruction



                                                           12
No. 44710 -0 -II




directing them to disregard the prosecutor' s remarks as to the witnesses' credibility. See In re

Det. ofMcGary, 175 Wn. App. 328, 343, 306 P. 3d 1005, review denied, 178 Wn.2d 1020 ( 2013);

State   v.   Eastabrook, 58 Wn.     App. 805, 817,   795 P. 2d 151 ( 1990).   Thus, because the resulting

prejudice could have been cured had he objected, Reynoldson waived his claim that the State


violated his right to a fair trial by vouching for the witnesses. See Thorgerson, 172 Wn.2d at

443.


                                   III. INEFFECTIVE ASSISTANCE OF COUNSEL


             Reynoldson argues that he received ineffective assistance of counsel when trial counsel


failed to object to the State' s vouching. We disagree.

             Whether a defendant received ineffective assistance of counsel is a mixed question of law


and fact, reviewed de novo. In re Pers. Restraint ofFleming, 142 Wn.2d 853, 865, 16 P. 3d 610

 2001).       In reviewing claims of ineffective assistance, we begin with a strong presumption of

counsel' s effectiveness. State v. McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995).

             To establish ineffective assistance of counsel, a defendant must satisfy the two- pronged

test announced in Strickland v. Washington, 466 U. S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d

674 ( 1984). State      v.   Thomas, 109 Wn.2d 222, 225 -26, 743 P. 2d 816 ( 1987). First, the defendant


must show that counsel' s performance was deficient, meaning that it fell below an objective

standard of reasonableness under all circumstances.           109 Wn.2d at 225 -26. If the defendant


bases his ineffective assistance of counsel claim on trial counsel' s failure to object, the defendant

must show that the objection would likely have succeeded. State v. Gerdts, 136 Wn. App. 720,

727, 150 P. 3d 627 ( 2007).




                                                         13
No. 44710 -0 -II




         Second, the defendant must show the deficient performance prejudiced the defendant' s

case.   Thomas, 109 Wn.2d at 225 -26. Prejudice occurs if, taking all circumstances into account,

there is a reasonable probability that the result of the proceeding would have been different if

that deficient   performance      had          not occurred.      109 Wn.2d       at   226. "   A reasonable probability is a

probability   sufficient   to   undermine confidence                  in the   outcome."    Strickland, 466 U. S. at 694. A


failure to satisfy either prong is fatal to an ineffective assistance of counsel claim. 466 U.S. at

700.


         As discussed below, six of the prosecutor' s statements were not vouching, and the

remaining six statements caused Reynoldson no prejudice. Trial counsel was not deficient for

not   objecting to   statements [      1], [    2], [ 5], [ 7], and [ 10] because an objection to these statements


would not     have   succeeded, and statements [                3], [ 4], [ 6], [ 8], [ 9], and [ 11] did not cause prejudice


because, taking all circumstances into account, trial counsel' s failure to object to these

statements does not undermine confidence in the outcome of Reynoldson' s trial.


A.       Statements [ 1], [     21 [    5], [    71    and [   10]:   No Deficiency

         Whether a witness has testified truthfully is for the jury to determine. State v. Ish, 170

Wn.2d 189, 196, 241 P. 3d 389 ( 2010) ( plurality                       opinion) (   citing United States v. Brooks, 508

F. 3d 1205, 1210 ( 9th Cir. 2007)). "                 It is improper for a prosecutor personally to vouch for the

credibility   of a witness."     Brett, 126 Wn.2d                at   175.   Improper vouching generally occurs if the

prosecutor expresses her personal belief as to the witness' s credibility or indicates that evidence

not presented at trial supports the witness' s testimony. Thorgerson, 172 Wn.2d at 443.




                                                                       14
No. 44710 -0 -II




             But the prosecutor " has wide latitude in closing argument to draw reasonable inferences

from the      evidence and     may     freely   comment on witness      credibility based        on   the evidence."        State


v.   Lewis, 156 Wn.     App.    230, 240, 233 P. 3d 891 ( 2010).         The prosecutor has especially wide

latitude     when   rebutting   an   issue the defendant     raised   in closing   argument.          156 Wn. App. at 240.

Accordingly, closing argument does not constitute improper vouching for witness credibility

unless it is clear that the prosecutor is not arguing an inference from the evidence but, instead, is

expressing a personal opinion about witness credibility. State v. Warren, 165 Wn.2d 17, 30, 195

P. 3d 940 ( 2008). Trial        counsel was not      deficient for    failing to   object   to   statements [   1], [   2], [ 5],


 7],   and [ 10] because they did not constitute vouching.

              1] You were paying attention to what each of these witnesses testified to. I would
             like to go back through at least we are all on the same page on what it is that the
             State believes that the information that was elicited from these witnesses.

VRP     at   1044 ( emphasis    added).     In this statement, the State informed the jury that it was about to

state the information that it believed the witnesses had provided. This was not expressing a

personal opinion about a witness' s credibility, but rather was arguing that the jury may infer

certain information from the witnesses' testimony. Thus, because the prosecutor was not

expressing a personal opinion about witness credibility, statement [ 1] was not vouching.

              2] He tries to    pull    her back into the house.         And thank God for the neighbor
             Deborah Tarnecki.         Deborah told    you   that   she was seated     in her home.         She was

             with her family. They heard this glass breaking.

VRP     at   1056 ( emphasis     added).    In this statement, the prosecutor was referencing DGM' s

testimony, in which she thanked God that neighbors were present to assist her after she had
thrown herself through a window. This was not a statement of personal opinion as to DGM' s or




                                                              15
No. 44710 -0 -II




Tarnecki' s credibility, but rather was a reference to DGM' s testimony at trial. Because the

prosecutor was not expressing a personal opinion about witness credibility, the statement was not

vouching.


           5]  So the defendant is guilty —we believe that we have proven each of these
           elements beyond a reasonable doubt. At a minimum the rape in the —the Attempted

           Rape in the Third Degree, but we believe that we have proven the Attempted Rape
           in the First Degree.


VRP   at   1084 ( emphasis     added).     In this statement, the prosecutor was not expressing a personal

opinion as to the credibility of a witness. Rather, the prosecutor was arguing that the jury could

infer the State had met its burden to prove the crime beyond a reasonable doubt from the

evidence. Thus, because the prosecutor was not expressing a personal opinion about witness

credibility, statement [ 5] was not vouching.

            7] What I would submit to you is that when [ DGM] testified to you, she was honest.
           She told you about her lifestyle then. She told you about her life now, how that has
           changed.      She told   you   that   she   initially   lied   and   why   she   lied. She told you what
           she had agreed upon with the defendant even though it is, clearly, embarrassing for
           her to tell you that.


VRP   at   10.89 (   emphasis added).      In this statement, the prosecutor stated that she submitted to the


jury that DGM was honest when she testified to the jury. This is not the prosecutor' s personal

opinion as to the witness' s credibility, but rather an argument that the jury could infer DGM' s'

credibility from DGM' s testimony. Thus, because the prosecutor was not expressing a personal

opinion about witness credibility, statement [ 7] was not vouching.

            10] [ DGM] can be believed. She told you that she lied. She came in here and told
           you   that.   She told   you   the reasons why. She told             you   that   she was ashamed.   She

           told you to the best of her ability her memory, what it was that took place.




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VRP    at   1056 ( emphasis       added).       In this statement, the prosecutor did not state a personal opinion


that DGM must be believed, but rather argued that the jury could infer DGM' s believability from

DGM' s testimony. Thus, because the prosecutor was not expressing a personal opinion about

witness credibility, statement [ 10] was not vouching.

            Because    statements [    1], [    2], [ 5], [ 7],   and [ 10] did not constitute vouching, they did not

constitute prosecutorial misconduct. Thus, any objection trial counsel may have made to the

State' s comment would not have succeeded, and trial counsel' s performance was not deficient.

Accordingly, Reynoldson has failed to meet his burden to show ineffective assistance of counsel

regarding these statements.

B.          Statements [   31 [   4], [ 6], [    81 [ 9],   and [ 11]:     No Prejudice


            We     assume without     deciding        that trial    counsel' s   failure to   object   to   statements [   3], [ 4],


 6], [ 8], [ 9],   and [ 11] constituted deficient performance. The State arguably vouched for the

credibility of witnesses, as well as for the truth of the charges. In fact, statements [ 8] and [ 9]

plainly were improper vouching. But taking all circumstances and evidence into account,

Reynoldson cannot establish prejudice because this deficiency was not sufficient to undermine

confidence in the outcome of his trial.


            The parties stipulated that the condom found at the house shortly after the crime had

Reynoldson' s DNA on the interior and DGM' s DNA on the exterior. This establishes that

Reynoldson and DGM were together in the bedroom.




                                                                      17
No. 44710 -0 -II




       DGM testified that while her hands were still tied behind her back and her mouth was


still gagged, she jumped through a closed window, breaking the glass. DGM testified that

Reynoldson jumped out of the window after her, punched her, and attempted to drag her back

into the house against her will. DGM' s testimony is supported by Tarnecki' s testimony.

Tarnecki testified that she heard the glass break, ran outside of her home, and saw DGM outside


of the window, naked, in a fetal position, with her mouth gagged and her hands tied. Tarnecki

testified that she saw Reynoldson attempt to grab DGM and force her back into the house, and

that DGM was outside the window, giving muffled screams through the gag and clinging to the

grass to prevent Reynoldson from dragging her back into the house.

       DGM described her injuries in detail, including scratches and bruises Reynoldson caused

her. This testimony is supported by forensic technicians' photographs of those injuries, as well

as the testimony of Detective Sheskey and Bloomstine.

        DGM testified she felt she had to jump out of the closed window because she was afraid

of being killed or tortured. DGM' s mental state was supported by Tarnecki, Bloomstine, and

Detective Sheskey, who all testified that DGM was emotionally upset after the alleged crime.

Tarnecki testified to DGM' s fears that Reynoldson was going to assault and rape her.

Bloomstine and Tarnecki both testified that DGM claimed to have been sexually assaulted

shortly after the crime.

        Taking all circumstances into account, counsel' s failure to object does not undermine

confidence in the outcome of Reynoldson' s trial. Thus, because Reynoldson has failed to




                                                18
No. 44710 -0 -II




establish prejudice with these statements, he has failed to establish ineffective assistance of

counsel.



                                                IV. JUROR MISCONDUCT


       Reynoldson argues that the jury committed misconduct by considering extrinsic evidence

of his prior convictions. The State argues that the law of the case doctrine precludes

consideration of Reynoldson' s argument because we have already held that the trial court erred

by granting a mistrial based on jury misconduct. The law of the case doctrine does not preclude

consideration of Reynoldson' s claim, but Reynoldson has failed to meet his burden of showing

juror misconduct.


A.     Law ofthe Case Doctrine

        Under the law of the case doctrine, we generally adhere to decisions declaring the

applicable law in previous appeals of the same case, and refuse to consider issues that were

decided,   or could   have been decided if raised, in         a prior appeal.   RAP 2. 5(   c)(   2); Folsom v.


County ofSpokane, 111 Wn.2d 256, 263, 759 P. 2d 1196 ( 1988).

        In Reynoldson, the only question before us was whether courts could consider a juror' s

statement   in her   affidavit   that   she   lied   when polled.   168 Wn. App. at 544. We held that because

this juror' s statement necessarily went to the juror' s mental processes leading to her decision,

courts could not consider        it.    168 Wn. App. at 544.

        Reynoldson now argues that the jury considered extrinsic evidence. Because this

argument raises an issue concerning the possible introduction of extrinsic evidence, rather than




                                                             19
No. 44710 -0 -II




the juror' s internal mental processes, it raises an issue we did not consider in Reynoldson, and we

consider the issue here.


B. "          Consideration on the Merits


          Reynoldson argues that the jury committed misconduct by considering extrinsic evidence

of his prior convictions in reaching its verdict. We disagree. 9

              A jury' s consideration of extrinsic evidence in its deliberations constitutes misconduct

and can be grounds for a new trial. State v. Balisok, 123 Wn.2d 114, 118, 866 P. 2d 631 ( 1994).

Extrinsic evidence is evidence that was not subject to objection, cross -examination, explanation,

or rebuttal at      trial.   123 Wn.2d    at   118. But "[ n] either       parties nor judges may inquire into the

internal      processes      through   which   the   jury reaches its      verdict."     State v. Linton, 156 Wn.2d 777,


787, 132 P. 3d 127 ( 2006).


               The party alleging juror misconduct has the burden to show that misconduct occurred."

State    v.   Earl, 142 Wn.      App.   768, 774, 177 P. 3d 132 ( 2008). "               A strong, affirmative showing of

misconduct is necessary in order to overcome the policy favoring stable and certain verdicts and

the    secret,   frank   and   free discussion       of   the   evidence   by   the   jury."   Balisok, 123 Wn.2d at 117 -18.


              Here, the juror' s affidavit stated only that the jurors " opined about how many other times

Mr. Reynoldson may have done this                    and gotten     away    with      it." CP at 342. This presents




9 We generally review a trial court' s investigation ofjuror misconduct for abuse of discretion.
State    v.             App. 768, 774, 177 P. 3d 132 ( 2008). But here, the trial court did not
              Earl, 142 Wn.
resolve this issue because it granted a new trial on a different basis. Thus, we review this issue
de novo.




                                                                    20
No. 44710 -0 -II




evidence that the jurors speculated that Reynoldson may have committed similar offenses in the

past, but presents no evidence that jurors had knowledge of or considered Reynoldson' s actual

past offenses. No other evidence in the record suggests that the jury knew or considered

Reynoldson' s actual past offenses. Likewise, we should not inquire into the jury' s internal

thought processes. Linton, 156 Wn.2d at 787. Thus, we hold that Reynoldson has failed to meet

his burden to show that juror misconduct by consideration of extrinsic evidence actually

occurred.



        We hold that Reynoldson has failed to establish a public trial right violation, has waived


his vouching claim, and has failed to meet his burden to show either ineffective assistance of

counsel or juror misconduct. Accordingly, we affirm.

        A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports but will instead be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




 We concur:
                                                                      Worswick, J.
                                                                                     Cf

 F Jrge     A. C.).




 Melnick, J ,            j




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