                                                                                                FILED
                                                                                      COURT OF APPEALS
                                                                                             DIVISION II
                                                                                  2615 FEB 24 AM 9: 25

                                                                                  STATE OF WASHINGTON
                                                                                  BY
      IN THE COURT OF APPEALS OF THE STATE OF WIA                                                     YNGTON.

                                                  DIVISION II

 STATE OF WASHINGTON,                                                             No. 44337 -6 -II


                                         Respondent,


            v.

                                                                             UNPUBLISHED OPINION
 LEANNE MICHELLE BECHTEL,


                                         Appellant.




           MAxA, J. —       Leanne Bechtel appeals her conviction for second degree murder for the


death of her former boyfriend' s daughter, AF. 1 She argues that the trial court erred under the

                                                                                           testify. She also argues
Frye2
        test    and   ER 702   by   allowing the State'   s   biomechanics   expert   to



that the trial court erred by allowing the expert to show the jury an illustrative reenactment of

Bechtel' s account of how AF' s injuries occurred and by denying her motion for a new trial on

grounds that the jury committed misconduct regarding the playback of a 911 recording admitted

into evidence.


           We hold that ( 1) the expert' s testimony was based on generally accepted principles in the

relevant scientific field, and Bechtel' s challenge to his specific conclusions did not implicate the

Frye test; ( 2)       the trial court did not abuse its discretion by determining that the expert' s opinion




1 AF is a minor and is referred to by her initials.
2
    Frye   v.   United States, 293 F. 1013 ( D. C. Cir. 1923).
44337 -6 -II



was   helpful to the   jury   under   ER 702; (   3) the trial court did not abuse its discretion by allowing

the expert' s reenactment as demonstrative evidence; and ( 4) the trial court did not abuse its

discretion by denying Bechtel' s motion for a new trial based on alleged juror misconduct.

Accordingly, we affirm Bechtel' s conviction.

                                                        FACTS


         In April 2008, Bechtel lived with her boyfriend, Chris Franks, his two young children,

and a large dog. One of those children was AF, a 3- year -old girl. One morning, while Bechtel

and AF were home alone, Bechtel called 911 and reported that the dog had knocked AF off a

couch, causing AF to hit her head against the ground. Bechtel said that AF was unresponsive,

which was soon confirmed by emergency responders. AF was taken to the hospital, where

doctors found signs of brain damage, a massive skull fracture, intracranial bleeding, and severe

cerebral swelling. Bechtel repeated the story about the dog knocking AF off the couch to Franks,

doctors, a social worker, and the police. AF died as a result of her injuries.


         The doctors who treated AF suspected that her injuries were not caused by accidental

contact with a dog. Even while AF was in the hospital, police were investigating the possibility

of child abuse by interviewing Bechtel and searching the apartment. Nearly three years later, the

State charged Bechtel with second degree murder on a felony murder theory stemming from

assault of a child.




         Throughout the resulting trial, Bechtel maintained through her attorney that her story

about the dog knocking AF from the couch was true. Bechtel argued that her story was at least

plausible enough to give rise to reasonable doubt that she harmed AF. However, Bechtel did not


testify at trial.


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          Because the State had no direct evidence that Bechtel assaulted AF, the State relied


heavily on expert testimony at trial. One of the State' s experts was biomechanics professor Dr.

Wilson Hayes, who held an opinion that AF' s injuries were caused by a tremendous impact, one

much stronger than would be expected to result from even an accelerated fall from a couch.3

          Bechtel moved pretrial to exclude Hayes' testimony on grounds that it was unhelpful and

unduly prejudicial. In the alternative, Bechtel requested that the trial court hold a Frye hearing to

determine whether Hayes' methods were reliable. The trial court declined to conduct a Frye


hearing and ruled that Hayes could testify as to the biomechanics of the defense theory of events.

But the trial court excluded under ER 702 testimony on a concept Hayes called the " factor of

risk,"   which quantified whether a particular injury was more probable than not under certain

conditions. Report of Proceedings at 167.


          At trial, Hayes testified as to whether the events Bechtel described could produce AF' s


injuries. He reconstructed the events using Bechtel' s account to police, the laws of physics, and

studies of the forces required to produce certain injuries in adult populations. He compared those

reconstructed events to AF' s documented injuries. He used slides to visually demonstrate his

analysis to the jury, and the slides included illustrations of his reconstructions. He ultimately

testified that in his opinion, Bechtel' s version of events was incompatible with AF' s documented.

injuries. On cross -examination, Bechtel attacked Hayes' analysis, focusing especially on the

potential issues with using general population data in his analysis.



3 The State also called as witnesses at trial the physicians in AF' s treating medical team, the
physician who conducted AF' s autopsy, and a renowned forensic pathologist from Philadelphia.
These experts also believed that AF' s injuries were inconsistent with Bechtel' s version of the
incidefit.

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        The defense called its own biomechanics expert, Dr. Colin Daly. Daly testified that

Hayes used formulae and tests commonly used in the field of biomechanics, but also that Hayes

erred in his application of those formulae and tests. Daly admitted that Hayes had based his

analysis on data generally accepted in the field of biomechanics. But Daly challenged the

accuracy of Hayes' analysis.

        After closing arguments, the parties agreed that the jury could listen to an audio recording

of Bechtel' s 911 call during deliberations. The trial court arranged to have the recording played

in the courtroom adjacent to the jury deliberation room, but closed the courtroom to everyone

except the jurors. The door remained open between the courtroom and the jury deliberation

room during playback.

        Following deliberations, the jury found Bechtel guilty as charged. After the jury

delivered its verdict, Bechtel' s counsel spoke with jurors who stated that some jurors were in the

courtroom and some were in the jury deliberation room during playback of the 911 recording.

Bechtel moved for a new trial based on her attorney' s affidavit describing what the jurors told

him. The trial court denied the motion.


        Bechtel appeals her conviction and the trial court' s denial of her motion for a new trial.

                                            ANALYSIS


A.       ADMISSIBILITY OF EXPERT TESTIMONY


         Bechtel concedes that Hayes was a qualified expert in the field of biomechanics.


However, she argues that the trial court erred in admitting his testimony regarding the likelihood

that AF' s injuries were caused by being knocked off the couch by the dog because ( 1) Hayes'




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opinions were not generally accepted in the scientific community, and (2) the testimony was not

helpful to the jury and therefore was inadmissible under ER 702. We reject both arguments.

          1.   General Principles


         Expert testimony generally is            admissible   if (1) the   witness   is   qualified as an expert, ( 2)




the expert relies on theories that are generally accepted in the scientific community, and ( 3) the

testimony would be helpful to the trier of fact. Johnston -Forbes v. Matsunaga, 181 Wn.2d 346,

352, 333 P. 3d 388 ( 2014). The second requirement involves application of the Frye test, and the


third   requirement    involves    application of     ER 702. See     Lakey    v.   Puget Sound     Energy, Inc., 176

Wn.2d 909, 918, 296 P. 3d 860 ( 2013).


          The Frye test and ER 702 address different aspects of admissibility, but work together to

regulate expert     testimony. " Frye excludes testimony based on novel scientific methodology until

a scientific consensus decides the methodology is reliable; ER 702 excludes testimony where the

expert   fails to   adhere   to that   reliable   methodology." Lakey, 176 Wn.2d at 918 -19.

          2.   General Acceptance of Expert' s Theories


          Bechtel argues that Hayes formed his opinion using methodologies not generally

accepted in the field of biomechanics. Therefore, she argues that the trial court should have

excluded his testimony based on a Frye' analysis. We disagree.

               a.     Application of Frye


          If an expert's testimony is based on a novel scientific theory, trial courts employ the Frye

test to determine whether the testimony is admissible. Anderson v. Akzo Nobel Coatings, Inc.,

 172 Wn. 2d 593, 600 -02, 260 P. 3d 857 ( 2011).            Under this test, the trial court determines whether




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the theory and the underlying methodology have been generally accepted in the relevant

scientific community. Id. at 601, 603.

            However, the Frye test focuses on general scientific theories, not particular opinions


based      on    those theories.      Our Supreme Court has emphasized that " Frye does not require every

deduction drawn from generally                 accepted   theories to be generally   accepted."   Anderson, 172


Wn.2d       at   611.    If an expert' s specific opinions are grounded in generally accepted science, Frye

is   not   implicated. Id.       at   611 -12. " [ l]he application of accepted techniques to reach novel


conclusions         does   not raise    Frye   concerns."   Lakey, 176 Wn.2d at 919.

            We review de novo questions of admissibility under Frye. Anderson, 172 Wn.2d at 600.

We also review de novo a trial court' s denial of a Frye hearing, because denial of the hearing is

tantamount to a decision that the Frye test either has been satisfied or does not apply as a matter

of law. In re Det. ofBerry, 160 Wn. App. 374, 378, 248 P. 3d 592 ( 2011).

                    b.     Opinions Based on Biomechanics


            Biomechanics analysis is commonly accepted by Washington courts, and the underlying

science is not novel. See, e. g., Johnston-Forbes, 181 Wn.2d at 353; Ma' ele v. Arrington, 111

Wn.    App.       557, 560 -61, 45 P. 3d 557 ( 2002). And Hayes based his analysis on biomechanics


studies and the laws of physics, all of which are generally accepted in the field of biomechanics.

            Bechtel argues that even if the general biomechanical analysis Hayes used to determine


the connection between impact force and injuries is generally accepted in the scientific

community, Hayes' methodology in this case is not generally accepted as required under Frye.

Br    of   Appellant      at   24.   Specifically, Bechtel focuses on Hayes' use of adult skull force tolerance

data to render opinions regarding the effect of force on a young child' s skull. Bechtel points out


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44337 -6 -II



that some biomechanics researchers have warned against drawing conclusions about pediatric

injuries from data traditionally   used   to   assess adult    injuries. She argues that major limitations


exist when comparing adult skulls to pediatric skulls and that the literature indicates that the

mechanical properties of pediatric skulls are unknown.4 Therefore, Bechtel claims that opinions

based on a biomechanical analysis involving a pediatric skull cannot be made with scientific

certainty.


         However, Hayes testified that his methodology for developing his opinions was grounded

in settled biomechanics principles. Because there is insufficient data on the force tolerance of

pediatric skulls,   Hayes derived his data     by    scaling   available adult   data, " accounting   for

geometric and material property differences specific to cranial sutures "5 at different ages.
Clerk' s Papers at 167.


         In his report, Hayes cited to a biomechanics textbook that describes in detail those

geometric and property differences at the various stages of skull development and outlines the

methods used to scale the data. See Narayan Yoganandan et al., Pediatric Biomechanics, in

ACCIDENTAL INJURY: BIOMECHANICS                AND   PREVENTION, 564 -579 ( Alan M. Nahum & John W.


Melvin   eds.,   2000).   Bechtel has not shown that Hayes' scaling methods departed from the




4 Bechtel similarly argues that Hayes inappropriately incorporated into his analysis data from
studies that included potentially relevant design limitations. But Bechtel does not question the
principles and techniques underlying those studies or their use in biomechanics analyses
generally. Instead, she again claims that Hayes' use of the resulting data in this particular case
was inappropriate. This argument does not implicate Frye.


5 Cranial sutures are the fibrous spaces between the plates on a child' s developing skull that
ossify with age.



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44337 -6 -II




methodology described in that textbook.6 Other literature Hayes cited in his report explains that

scaling is an accepted technique in the field of biomechanics. See, e. g., Michael T. Prange et al.,

Mechanical Properties and Anthropometry ofthe Human Infant Head, 48 STAPP CAR CRASH J.

1, 2 ( 2004) ( " Because     of [the] paucity of pediatric data, scaling methods have been employed to

determine the head        injury   tolerance   of   the   child   based   on adult   data. "). The record does not


show that Hayes' scaling methods departed from standard practices in his field.

        In effect, Bechtel' s argument is that because of the lack of data regarding the effect of

force on a child' s skull, there is a risk that Hayes' opinions were unreliable. But issues with the


adequacy of particular data are properly addressed under ER 702, not Frye. See State v.

Gregory,    158 Wn.2d 759, 829 -30, 147 P. 3d 1201 ( 2006),                  overruled on other grounds by State. v.

W.R., Jr., 181 Wn.2d 757, 336 P. 3d 1134( 2014). And "[                      i] f the methodology is sufficiently

accepted in the scientific community at large, concerns about the possibility of error or mistakes

made   in the   case at   hand   can   be   argued   to the factfinder." State v. Russell, 125 Wn.2d 24, 41,


882 P. 2d 747 ( 1994).


        Because the methods and principles underlying Dr. Hayes' analysis were not novel, we

hold that the Frye test was inapplicable. Therefore, we affirm the trial court' s denial of Bechtel' s

motions for a Frye hearing and to exclude Hayes' expert testimony.




6 Bechtel points out that this same textbook warns that there are significant limitations to the use
of age scaling and that pediatric data may be too sparse to draw firm conclusions in individual
cases. But because the techniques and principles of age scaling are not novel, this argument does
not implicate Frye. Instead, it relates either to admissibility under ER 702 or the weight of the
evidence.
44337 -6 -II



         3.      Admissibility Under ER 702

         Bechtel argues that Hayes' testimony was not helpful to the jury. Therefore, she argues

that the trial court should have excluded his testimony under ER 702. We disagree.

                 a.     General Principles


         ER 702 generally governs the admissibility of expert testimony. Anderson., 172 Wn.2d at

600. ER 702 provides that testimony based on " scientific, technical, or other specialized

knowledge" is admissible if the trial court determines that it "will assist the trier of fact to

understand      the   evidence or       to determine   a   fact in issue."    Accordingly, expert testimony usually

is admissible under ER 702 if it will be " helpful to the jury in understanding matters outside the

competence of         ordinary    lay    persons."   Anderson, 172 Wn.2d at 600.


             On the   other   hand, "[   b] efore allowing an expert to render an opinion, the trial court must

find that there is an adequate foundation so that an opinion is not mere speculation, conjecture, or


misleading." Johnston -Forbes, 181 Wn.2d                    at   357..   Conclusory or speculative opinions that lack

adequate foundation will not assist the jury and must be excluded. Stedman v. Cooper, 172 Wn.

App. 9, 16, 292 P. 3d 764 ( 2012).

             Trial courts have broad discretion to determine the circumstances under which expert


testimony will be allowed. Johnston -Forbes, 181 Wn.2d at 354. Accordingly, we review the

trial court' s decision whether to admit expert testimony under ER 702 for an abuse of discretion.

State   v.   Green, 182 Wn.       App.     133, 146, 328 P. 3d 988,        review   denied, 337 P. 3d 325 ( 2014). As


long as helpfulness is fairly debatable, a trial court does not abuse its discretion by allowing an

expert   to    testify. Miller    v.   Likins, 109 Wn.      App.    140, 147, 34 P. 3d 835 ( 2001).   And even where


the helpfulness of expert testimony is doubtful, courts favor admissibility. State v. King County


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Dist. Court W. Div.,           175 Wn. App. 630, 638, 307 P. 3d 765, review denied, 179 Wn.2d 1006

 2013).


          Determining the admissibility of expert testimony depends upon the specific facts of each

case.   Johnston -Forbes, 181 Wn.2d               at   354. And "[ t]he broad standard of abuse of discretion


means that courts can reasonably reach different conclusions about whether, and to what extent,

an expert' s   testimony         will   be helpful to the   jury   in   a particular case."    Stedman, 172 Wn. App. at

18.


                b.        ER 702 Analysis


          Bechtel challenges the helpfulness of Hayes' testimony on four general grounds: that

Hayes'    opinion (       1)   was   based   on speculation, (   2) misleadingly drew conclusions about

individual     circumstances          from   generalized population         data, ( 3)   was based on unreliable scaling

techniques, and ( 4) commented on Bechtel' s credibility.

                     i.        Opinion Based on Speculation


          Bechtel argues that Hayes' opinions were based on approximations and assumptions


instead of established facts. According to Bechtel, Hayes' opinion was improperly speculative

because important variables, such as the dog' s running speed and the exact location at which

AF' s body came to rest on the floor, were unknown. But Hayes testified as to how he
reconstructed those unknown variables from other evidence, including photographs and diagrams

of the crime scene and studies of animal movement and motor vehicle accidents. He also

explained the effects of using plausible alternative values for those variables, in effect describing

a variety of related hypothetical scenarios. For each such scenario, Hayes' ultimate opinion was




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the   same —   the defense' s story of the events leading to AF' s injuries was incompatible with the

causation of those injuries.


         Hayes did not rely on pure speculation to produce any of the variables in his analysis. He

constructed hypothetical scenarios based on known facts, the defense theory of events, and the

results of scientific studies. We hold that Hayes' opinion was not founded on mere speculation,

and that the trial court did not abuse its discretion in determining that there was a proper factual

foundation for his testimony.

                   ii.   Use of Generalized Population Data


         Bechtel argues that some of the studies on which Hayes relied involved generalized


population data even though variability exists among individuals, and therefore that Hayes'

testimony was misleading. Courts may exclude evidence that is likely to mislead the jury, and

the trial court in this case could have excluded Hayes' testimony on these grounds without

abusing its discretion. See Stedman, 172 Wn.                App.   at 21.   In Stedman, Division One of our court


held that a biomechanics expert' s opinion formed using generalized population data derived from

studies of differing subjects can mislead the jury, and that a trial court " may regard such an

opinion as more      likely   to   be misleading than helpful."        172 Wn.   App.   at   20 -21.   However, the


court   in Stedman did    not      hold that   a   trial court must —or   even should —regard such an opinion as




unduly misleading.


         Bechtel essentially argues that we should go further than the Stedman court and find that

a trial court abuses its discretion as a matter of law by allowing expert testimony based upon

generalized population data. We decline to broaden the Stedman rule as Bechtel suggests.




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                   iii.   Reliability of Scaling Techniques

         Bechtel argues that.Hayes unreliably scaled data from experiments involving adult skulls

to render opinions regarding the effect of force on a young child' s skull, even though the

mechanical properties of the pediatric skull have not been fully studied. She claims that the

limitations inherent in the use of scaled data renders Hayes' opinions unhelpful. See Gregory,

158 Wn.2d at 830.


         As with the use of generalized population data, the trial court reasonably could have

excluded Hayes' expert testimony based on the scaled data due to the limitations noted in the

scholarly literature. See Stedman, 172 Wn. App. at 21; see also, e. g., Yoganandan et al.,

Pediatric Biomechanics, at 576. Bechtel quotes a number of passages discussing the limitations

inherent to age scaling techniques. But these sorts of limitations are not so severe as to make the

resulting analysis unhelpful beyond any fair debate. In fact, the literature before us shows that

scaling adult data produces fairly accurate results. See, e. g., Prange et al., Mechanical Properties

and Anthropometry ofthe Human Infant Head, at 14. Because the helpfulness of the scaled data

was at least fairly debatable when the trial court ruled it admissible, we reject this argument.

                    iv.   Expert Opinion on Defendant' s Credibility

             Bechtel argues that Hayes' testimony should have been excluded because it improperly

addressed Bechtel' s credibility. Expert testimony that comments on the credibility of a witness

impermissibly invades the jury' s fact finding function. Green, 182 Wn. App. at 147; see also
State   v.   Fitzgerald, 39 Wn.   App.   652, 657, 694 P. 2d 1117 ( 1985) ( " It is improper for an expert to


base an opinion about an ultimate issue of fact solely on the expert' s determination of a witness' s




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veracity. "); 5B KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE §


704. 10, at 284 -285 ( 5th ed. 2007).


          The cases Bechtel cites for this argument involved witnesses actually testifying as to the

guilt of a   defendant. See State    v.   Black, 109 Wn.2d 336, 349, 745 P. 2d 12 ( 1987); State v.


Garrison, 71 Wn.2d 312, 315, 427 P. 2d 1012 ( 1967).             But Hayes testified only that the story of

events presented by the defense was incompatible with AF' s injuries. He did not comment,

directly or indirectly, on any particular witness' s credibility. Therefore, the trial court was not

obligated to exclude Hayes' testimony on that basis.

          We hold that the trial court did not abuse its discretion by declining to exclude Hayes'

expert testimony under ER 702.

B.        USE OF DEMONSTRATIVE EVIDENCE


          Bechtel argues that the trial court abused its discretion by allowing Hayes to show the

jury an animated reenactment demonstrating the factual scenario he analyzed. She claims that

the information he used to create the reenactment was unreliable and the demonstrative evidence

was speculative, and therefore the potential prejudicial effect of the reenactment exceeded its

probative value. We disagree.


          A trial court may admit demonstrative evidence as long as the experimental conditions

are substantially similar to the facts of the case and the probative value of the evidence

outweighs its prejudicial effect. State v. Hultenschmidt, 125 Wn. App. 259, 268, 102 P. 3d 192

 2004).    Where any differences between the facts of the case and the demonstrative evidence are

made clear at trial, a trial court may allow a witness to use that evidence. Jones v. Halvorson -

Berg, 69     Wn.   App.   117, 126 -27, 847 P. 2d 945 ( 1993).    Any dissimilarity ultimately goes to the


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44337 -6 -II



weight of    the    evidence.   State   v.   Finch, 137 Wn. 2d 792, 816, 975 P. 2d 967 ( 1999). We review


the trial court' s decision to allow demonstrative evidence under an abuse of discretion standard.


State v. Hunter, 152 Wn. App. 30, 41, 216 P. 3d 421 ( 2009).

        Bechtel asserts that the information underlying Hayes' analysis may not have been

substantially similar to the facts of the case, and therefore that the demonstrative evidence was

misleading. Because Hayes' presentation illustrated the hypothetical scenario he analyzed, and

was not a reenactment of known events, it included elements not established by other evidence in

the case. But Hayes explained his inclusion of these elements and the sources and methods he

used to construct them. In context, there was little risk of confusion as to what the slides


showed. And the slides had value to the jury as it followed Hayes' highly technical testimony.

The presentation' s prejudicial effect was minimal, but its demonstrative value was high.


        We hold that the trial court did not abuse its discretion by finding that the probative value

of the slides outweighed the prejudicial effect and potential to mislead the jury.

        C.           JUROR MISCONDUCT


        Bechtel argues that the trial court abused its discretion by denying her motion for a new

trial based    on   juror   misconduct.      She argues that the trial court should have granted the motion


because the jury (1) violated RCW 4.44. 300 and ( 2) improperly emphasized the 911 call to the

exclusion of other evidence. We disagree with both arguments.


        CrR 7. 5( a)( 2) allows a trial court to grant a new trial because of jury misconduct.

However, a new trial is warranted only when the defendant has been so prejudiced that only a

new trial can insure that the defendant has been fairly tried. State v. Bourgeois, 133 Wn.2d 389,

406, 945 P.2d 1120 ( 1997). We review for an abuse of discretion a trial court' s denial of a



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motion    for    a new   trial. State   v.   Pete, 152 Wn.2d 546, 552, 98 P. 3d 803 ( 2004). A trial court


abuses its discretion by reaching a conclusion no reasonable judge would reach. Id. We will

reverse a trial court' s denial of a new trial motion only where the moving party clearly shows

that the trial court abused its discretion. Id.

          1.      Violation of RCW 4. 44. 300


          Bechtel argues that the jury violated RCW 4. 44. 300 by separating during deliberations

without the court' s approval. We hold that Bechtel did not show that the jury separated.

          RCW 4.44. 300 provides that:


          Unless the members of a deliberating jury are allowed to separate, they must be
          kept together in a room provided for them, or some other convenient place under
          the charge of one or more officers, until they agree upon their verdict, or are
          discharged by the court.

If the jury separates during deliberations in a criminal case in violation of R
                                                                              . CW 4.44.300, the

defendant is presumptively prejudiced. State v. Smalls, 99 Wn.2d 755, 766, 665 P. 2d 384

 1983).        If the State cannot rebut the presumption of prejudice, the trial court must grant the


defendant a new trial. Id. at 767.


          Here, during playback of the 911 recording, some of the jurors were in the courtroom and

some were in the adjacent jury deliberation room. Bechtel argues that this constituted separation

of a deliberating jury within the meaning of RCW 4. 44. 300. However, the record indicates that

the trial court essentially expanded the jury deliberation room to include the courtroom for

purposes of playing the 911 recording. Only the jurors were allowed in the courtroom and the

door between the two rooms remained open throughout the playback of the 911 recording.

Based on these facts, the trial court found that for the duration of the playback the two rooms




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were effectively a single jury deliberation room within the meaning of RCW 4.44.300. In

addition, there is no evidence the jurors deliberated in separate groups or discussed the case at all

during the playback of the recording.

             We hold that the courtroom was effectively an extension of the jury deliberation room

during the playback of the 911 recording, and therefore the jury did not separate during

deliberations. Accordingly, we hold that the jury did not violate RCW 4.44. 300 and the trial

court did not abuse its discretion in denying Bechtel' s motion for a new trial on this basis.

             2.   Improper Emphasis


             Bechtel argues that the jury committed misconduct because having only a few jurors

listen to the 911 recording allowed those jurors to improperly emphasize that recording. We

disagree.


             In general, a trial court may not inquire into the mental processes of deliberating jurors,

including the weight given to any particular evidence. State v. Jackman, 113 Wn.2d 772, 777-

78, 783 P. 2d 580 ( 1989).        Admitted evidence may be used by a deliberating jury as it sees fit.

State   v.   Elmore, 139 Wn.2d 250, 294 -95, 985 P. 2d 289 ( 1999); State v. Castellanos, 132 Wn.2d


94, 97, 935 P. 2d 1353 ( 1997).

             Bechtel relies on State v. Koontz, in which our Supreme Court held that a trial court


abused its discretion by allowing a deliberating jury to view video recorded testimony without

taking   precautions     to   ensure   that the   jury would   not   unduly   emphasize   the   testimony.? 145




7 Bechtel seems to argue that that the jury did not follow the court' s instructions intended to
minimize undue emphasis. But the record does not show that the trial court actually instructed
the jurors that they had to remain in the courtroom during playback. Therefore, Bechtel cannot
show that the jurors committed misconduct by failing to follow the court' s instructions.
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Wn.2d 650, 660, 41 P. 3d 475 ( 2002).        But as the court in Koontz made clear, a jury may

emphasize admitted recordings —as opposed               to   recorded   testimony —as it   wishes.   145 .Wn.2d at


659;   see also   State   v.   Oughton, 26 Wn.   App.   74, 82, 612 P. 2d 812 ( 1980) (    holding that admitted

audio recordings must be made available to the jury for review during deliberations).

         Here, the 911 audio recording was admitted, so jurors were free to review it as they

deemed appropriate. As a result, the jurors who chose not to listen to the 911 recording slid not

commit misconduct, and the trial court did not abuse its discretion in denying Bechtel' s motion

for a new trial on that basis.


         We affirm Bechtel' s conviction.


         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.




 We concur:




  LEE, J.




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